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PROPERTY OF THE
UNITED STATES
GOVERNMENT
I
UNITED STATES REPORTS
VOLUME 405
CASES ADJUDGED
IN
THE SUPREME COURT
AT
OCTOBER TERM, 1971
FEBRUARY 7 THROUGH APRIL 19, 1972
HENRY PUTZEL, jr.
REPORTER OF DECISIONS
UNITED ST A TES
GOVERNMENT PRINTING OFFICE
WASHINGTON : 1972
For sale by the Superintendent of Document., U.S. Government Printing Office
Washington, D.C. 20402. Price: $9.06, domestic po•tpaid; $8.60, GPO Bookstore
Stock No. 2801-0374
ERRATA
2Ii U. S. 372, line 28: "jealously" should be "jealousy."
217 U. S. 373, line 5: "Stuarts" should be "Stuarts'."
392 U. S. 296 308, in running subhead, directly above the case
title: "June 10, 1967" should be "June IO, 1968."
401 U. S. 481, line 2 from the bottom of syllabus: ''Certiorari
granted, 419 F. 2d 392; vacated and remanded .... " should be
"Certiorari granted; 419 F. 2d 392, vacated and remanded .... "
404 L'. S. 90, line 3 from bottom: "destitue" should be '·de;,titute."
II
JUSTICES
OF THE
SUPREME COURT
DURING THE TIME OF THESE REPORTS*
WARREN E. BURGER, CHIEF JUSTICE.
WILLIAM 0. DOUGLAS, ASSOCIATE JUSTICE.
WILLIAM J. BREKNAN, JR., ASSOCIATE JUSTICE.
POTTER STEWART, ASSOCIATE JUSTICE.
BYRON R. WHITE, ASSOCIATE JUSTICE.
THURGOOD MARSHALL, ASSOCIATE JUSTICE.
HARRY A. BLACKMUN, ASSOCIATE JUSTICE.
LEWIS F. POWELL, JR., ASSOCIATE JUSTICE.
WILLIAM H. REHNQUIST, ASSOCIATE JUSTICE.
RETIRED
EARL WARREN, CHIEF JUSTICE.
STANLEY REED, ASSOCIATE JUSTICE.
TOM C. CLARK, ASSOCIATE JUSTICE.
OFFICERS OF THE COURT
JOHN N. MITCHELL, ATTORNEY GENERAL.'
RICHARD G. KLEINDIENST, ACTING ATTORNEY
GENERAL.2
ERWIN N. GRISWOLD, SOLICITOR GENERAL.
E. ROBERT SEA VER, CLERK.3
MICHAEL RODAK, JR., CLERK.4
HENRY PUTZEL, jr., REPORTER OF DECISIONS.
FRANK M. HEPLER, MARSHAL.
HENRY CHARLES HALLAM, JR., LIBRARIAN.
*For notes, see p. 1v.
III
NOTES
1 Attorney General Mitchell resigned effective the close of business
March 1, 1972.
2 The Honorable Richard G. Kleindienst, of Arizona, Deputy
Attorney General, who became Acting Attorney General on the
resignation of Mr. Mitchell, was nominated to be Attorney General
by President Nixon on February 15, 1972.
• Mr. Seaver resigned as Clerk effective March 4, 1972.
4 Mr. Rodak was appointed Clerk effective March 4, 1972. See
post, p. 970.
IV
SUPREME COURT OF THE UNITED STATES
ALLOTMENT OF JUSTICES
It is ordered that the following allotment be made of
the Chief Justice and Associate Justices of this Court
among the circuits, pursuant to Title 28, United States
Code, Section 42, and that such allotment be entered of
record, viz.:
For the District of Columbia Circuit, WARREN E.
BURGER, Chief Justice.
For the First Circuit, WILLIAM J. BRENNAN, JR.,
Associate Justice.
For the Second Circuit, THURGOOD MARSHALL,
Associate Justice.
For the Third Circuit, WILLIAM J. BRENNAN, JR.,
Associate Justice.
For the Fourth Circuit, WARREN E. BuRGER, Chief
Justice.
For the Fifth Circuit, LEWIS F. PowELL, JR., Associate
Justice.
For the Sixth Circuit, POTTER STEWART, Associate
Justice.
For the Seventh Circuit, WILLIAM H. REHNQUIST,
Associate Justice.
For the Eighth Circuit, HARRY A. BLACKMON,
Associate Justice.
For the Ninth Circuit, WILLIAM 0. DouGLAS, Associate
Justice.
For the Tenth Circuit, BYRON R. WHITE, Associate
Justice.
January 7, 1972.
(For next previous allotment, see 403 U. S., p. IV.)
V
DEATH OF JAMES F. BYRNES
SUPREME COURT OF THE UNITED STATES
TUESDAY, APRIL 11, 1972
Present: MR. CHIEF JusTICE BURGER, MR. JusTICE
DOUGLAS, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART,
MR. JUSTICE WHITE, MR. JUSTICE BLACKM"GN, MR.
JUSTICE POWELL, and MR. JusTICE REHNQUIST.
THE CHIEF JusTICE said:
Today we take note with sadness of the death of
former Justice James F. Byrnes in his 93d year. Justice
Byrnes served on this Court in 1941 and 1942, at
which time he resigned from the Court upon being
appointed by President Roosevelt as Director of the
Office of Economic Stabilization. Our sadness on the
death of Mr. Justice Byrnes is tempered by the knowledge
of the full and rich and remarkable life he lived,
serving as he did in the House of Representatives, in
the United States Senate, as Governor of the State
of South Carolina, as Secretary of State, and as a Justice
of this Court. He therefore served with great distinction
at the highest levels in all three branches of Government,
as well as in the highest office of his native
State. His contributions to stability and peace following
World War II have made his name honored among
the statesmen of his time.
Few men have served their country so long or so well.
The record will show that adjournment of this Court
today will be in memory of Mr. Justice Byrnes.
VII
PROCEEDINGS IN THE SUPREME COURT OF
THE UNITED STATES IN MEMORY OF
MR. JUSTICE BLACK*
TUESDAY, APRIL 18, 1972
Present: MR. CHIEF JUSTICE BURGER, MR. JUSTICE
DOUGLAS, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART,
MR. JusTICE WHITE, MR. JusTICE MARSHALL, MR. Jus-
TICE BLACKMUN, MR. JcsTICE POWELL, and MR. JUSTICE
REHNQUIST.
THE CHIEF JusTrcE said:
The Court is in Special Session this afternoon to receive
the Resolutions of the Bar in tribute to Mr. Justice
Black. Before we commence the proceedings, I am
requested to remind you that all present are invited by
Mrs. Black and the Black family to attend the reception
in the East Conference Room at the close of this
proceeding.
Mr. Solicitor General Griswold addressed the Court
as follows:
Mr. Chief Justice, may it please the Court:
At the meeting of the members of the Bart of the
Supreme Court just concluded, resolutions expressing
*Mr. Justice Black, who retired from active service on September
17, 1971, died in Bethesda, Md., September 25, 1971 (404 U.S.
rn, vn). Services were held at Washington National Cathedral prior
to his interment at Arlington National Cemetery on September 28,
1971.
t The Committee on Arrangements for the meeting of the Ba.r
consisted of Solicitor General Erwin N. Griswold, Chairman, Mr.
Benjamin V. Cohen, Mr. William T. Coleman, Mr. Leon Jaworski,
and Mr. Edward Bennett Williams.
IX
X MR. JUSTICE BLACK
profound sorrow at the death of Justice Hugo Lafayette
Black were offered by a committee t of which Mr. Louis
Oberdorfer was Chairman.
Addresses and resolutions were presented by Mr.
Bernard G. Segal of the Philadelphia. Bar, by Professor
Paul A. Freund of Cambridge, Massachusetts, and by
Mr. George Saunders of the Illinois Bar.
The resolutions unanimously adopted are as follows:
RESOLUTIONS
We meet to honor the memory of Justice Hugo
Lafayette Black.
To each Member of your Committee that memory is
a vivid one-for Justice Black was a vivid man. Some
of us knew him in his public life before he came to the
Court; some of us knew him across the Bar in our
appearances before this Court; some of us knew him
by virtue of our service as his law clerks; some of us
knew him as the attentive, inspiring Circuit Justice for
the Fifth Circuit.
Vignettes from our memories abound.
Senator Sparkman, Congressman Pepper, and others
of us first remember Justice Black as Senator Black~
feared and fearless investigator, architect of New Deal
legislation, Administration leader on the Senate Floor,
Chairman of the Labor and Education Committee, and
an influential Member of the Finance, Foreign Affairs,
Military Affairs, and Rules Committees.
Their recollections from the 1930's picture Senator
Black's desk piled high with volumes of American, English
and ancient history and classics. He was then still
heavily engaged in the compensatory liberal education
tThe Committee on Resolutions consisted of Mr. Louis F. Obndorfer,
Chairman, Mr. Jerome A. Cooper, Mr. Thomas G. Corcoran,
Professor Archibald Cox, Mr. Clifford J. Durr, Mr. John P. Frank,
Mr. George C. Freeman, .Jr., Mr. Yiarx Leva, Mr. Robert B. McCaw,
Congressman Claude Pepper, Mr. J. Lee Rankin, Judge Richard T.
Rives, Senator John Spa.rkman, Judge Elbert P. Tuttle, Mr. Lawrence
G. Wallace, and Judge J. Skelly Wright.
MR. JUSTICE BLACK XI
which he had begun in 1926, while enjoying and making
the most of the relative anonymity of a freshman
Senator.
The advocates among us will most vividly remember
Justice Black, senior Justice for over 25 of his 34 years
on the Court, as he appeared on the bench-"dwarfed"
alongside the several relatively substantial gentlemen
who were successively his Chief Justices. When he could
be seen from the Bar, he usually appeared tanned from
tennis ( even in the winter), gently rocking, alternately
thumbing through briefs, or with his head slightly cocked,
alertly watching counsel-often, it seemed, awaiting an
appropriate moment to pounce a question in his inimitable
Alabama manner.
One humbler counsellor recalls from an argument concerning
the power of a Judicial Conference to control
the work of a Federal District Judge, "the tone of disbelief"
with which Justice Black put a question:
"Mr. Justice Black: You mean that the President
of the United States, in your judgment, has the
power under our Constitution to determine whether
a judge is mentally able to try his cases? Is that
what you are saying?
"Mr. Wright: I am saying exactly that; yes, sir.
"Mr. Justice Black: I think I understand you
now."
According to the counsellor, Justice Black "leaned far
back in his chair, shaking his head but with a twinkle
in his eye." 1
In a last colloquy with counsel Justice Black evoked
from the Solicitor General a concession which the Justice,
with obvious relish, built into his last opinion:
"You [Mr. Justice Black] say that no law means
no law, and that should be obvious. I [the Solicitor
General] can only say, Mr. Justice, that to me it
is equally obvious that 'no law' does not mean
1 Wright, Hugo L. Black: A Great Man and a Great American, 50
Tex. L. Rev. 1, 2--3 (1971).
XII MR. JUSTICE BLACK
'no law,' and I would seek to persuade the Court
that that is true. . . ." 2
Those of us who, were law clerks to Justice Black have
shared a special precious privilege. We have, in our
small ways, assisted and closely observed the steely
disciplined working habits of a self-taught scholar as
he resurrected from his own reading and experience and
propagated with his own carefully penned eloquence a
fresh, authentic and now widely-though not universally-
accepted appreciation of the genius of our Nation's
written Constitution. In the process we have pitted,
or attempted to pit, ourselves in intellectual combat
against what Justice Cardozo once described as one of
the most brilliant legal minds he had ever known.3
Our privilege included a brief but intimate membership
in a family presided over by a very great man,
deeply in love with his wife and not ashamed to show
it. We have observed firsthand how even the greatest
of men can be inspired to greater heights of effort and
insight by the unflagging support and admiration of a
loved and loving wife.
The bonds between Justice Black and his law clerks
did not end with the termination of each law clerk's
service. They were renewed by frequent visits, correspondence
and formal gatherings for important anniversaries
and birthdays. On his 80th birthday, Justice
Black spoke to his clerks and their wives about the
disadvantages and advantages of growing old. The disadvantages
were obvious enough and he related some.
There were also surprising advantages: "As one grows
old, one needs less sleep. That," said Justice Black,
"gives that much more time to work."
One of Justice Black's law clerks recently wrote an
extremely popular, but controversial, book.4 It was Jus-
2 New York Times Co. v. United States, 403 U. S. 713, 717-718
/ 1971) (Black, J., concurring).
3 Hazel Black Davis, Uncle Hugo: An Intimate Portrait of Mr.
Justice Black 54 (1965) (privately printed).
4 C. Reich, The Greening of America (1970).
MR. JUSTICE BLACK XII[
tice Black's habit to focus on his reading by heavy
underscoring and frequent longhand penciled marginal
notes. Justice Black's copy of this law clerk's book
carries in its margin some trenchant annotations.
The author wrote of the glory of the original American
dream of a free democratic society, observing sadly that:
"Less than two hundred years later, almost every
aspect of the dream has been lost. In this chapter
we shall be concerned with the forces that destroyed
the American dream . . . . " 5
In the margin Justice Black wrote in heavy pencil:
"I do not agree. It is not yet destroyed."
The law clerk-author, striving to identify a new set
of values for our society, bluntly disparaged the old.
He wrote:
"[Our earliest generation known as] Consciousness
I believes that the American dream is still possible,
and that success is determined by character, morality,
hard work, and self-denial. ... " 0
In the margin Justice Black's longhand note proclaimed:
"I still do."
The judges of the Fifth Circuit have been favored
for many years by the inspiring presence of Justice Black
at their annual Judicial Conferences. The last 18 years
have been trying ones for Fifth Circuit Judges. Justice
Black shared those trials while he provided leadership
and reassurance that "this, too, will pass." The Fifth
Circuit Judges appreciate, perhaps more than others, the
full implications of Justice Black's role in this Court's
steadfast effort to eliminate unconstitutional discrimination
in our land. He was the only Justice from the
Deep South when the Court decided Brown. As on other
occasions when he was personally attacked, he silently
suffered with manly dignity the unpleasant reprisals
inflicted upon him and his loved ones in the South. Nor
5 ld., at 21.
6 Id., at 25.
XIV MR. JUSTICE BLACK
did he flinch in his determination to see it through. As
a single Circuit Justice he finalized the order for the
admission of James Meredith to the University of Mississippi,
the enforcement of which required a substantial
military operation. As Circuit Justice, and with the full
Court, he eliminated the "all deliberate speed" concept
as a brake on school desegregation.7
In an informal farewell address to one of the last
Judicial Conferences of his Circuit which he attended
Justice Black spoke of his pride in the way the Southern
federal judges had performed their difficult and often •
unpopular duty of applying the Constitution and enforcing
the civil rights laws, particularly with respect to
the Brown decision. He reminded them of the constancy
of controversy and his belief that he and they were
strengthened by it. In conclusion he told them good-by.
He said:
"I have been coming to see you for thirty years,
how many more I cannot know. I, too, like many
of the judges I have seen here, have passed over
the crest, over the brow of the hill. I hope I have
learned more tolerance, more friendship, more about
the love of human kindness during those thirty
years.
"Now I am far beyond the crest. I look over
into the glowing rays that come with sunset. The
years have been happy for me; the people have
been good to me. I have no complaint about my
life, and as I look at those rays they do not frighten
me. I know that life is change, and the greatest
change of all is who is to be here at any certain
period. All that I can say and hope for is that my
career has been such that people of integrity of
thought, when they think about me, will picture
a person who tried his dead level best to serve his
people and his country with every ounce of energy,
love and devotion that he could muster in his life,
7 Alexander v. Holmes County Bd. of Ed., 396 U. S. 1218 (1969)
(Black, J., in chambers).
MR. JUSTICE BLACK xv
and that, when those rays cease to be in my vision,
each of you and every member of this Conference
will remember me as one who did his best."
For most of his years on the Bench Justice Black
adhered to a strictly ascetic view of a judge's role and
made no serious public statements. In his later years
he relented to the extent of delivering the first James
Madison Lecture on the First Amendment, explaining
his philosophy of the Constitution in an hour-long television
special entitled "Mr. Justice Black and the Bill
of Rights," and delivering the Carpentier Lectures at
Columbia University. In the latter he· undertook to
state "in simple and clear language" his "constitutional
faith." He opened the Lectures with the observation
that:
"It is of paramount importance to me that our
country has a written constitution. This great document
is the unique American contribution to man's
continuing search for a society in which individual
liberty is secure against governmental oppression."
H. Black, A Constitutional Faith 3 (Carpentier
Lectures) (1969).
Justice Black continued with simple eloquence to express
his faith in the Constitution as an ingenious instrument
to be invoked by the Supreme Court to assure
control of government by the people subject to restraints
specifically embodied in the Constitution primarily to
limit government power and to protect minorities from
majorities.
Justice Black's deep faith in the Constitution expressed
near the end of his long service on this Court
was built upon rich experience as an active, successful
trial la·wyer, a fair and efficient municipal court judge,
a vigorous prosecutor, candidate for public office, and as
United States Senator.8 His time on the Court began
as the country struggled to design solutions for the social
8 For a posthumous account of Justice Black's pre-Court years,
see V. Hamilton, Hugo Black, The Alabama Years (1972).
XVI MR. JUSTICE BLACK
and economic problems generated and widened by the
great depression. It continued through World War II,
the Cold War confrontations with their corollary domestic
shock waves, the conflicts which followed in the wake
of the Brown decision and finally, in the 1960's, the
violence of assassinations, street crime, increased racial
tension and an unpopular war.
In his later years, he sparred with commentators and
colleagues who claimed that his fundamental views had
changed with these changing times. He disagreed:
"I think that I can say categorically that I have
not changed my basic constitutional philosophy~
at least not in the last forty years." 9
He convinced at least one commentator who recently
concluded:
"The remarkable thing about him was not his
ability to change with the times, but the timelessness
of the values of justice, freedom, and human
dignity which he held so dear, and for which he
fought." 10
Justice Black came to the Court committed, as a
Senator, to the view that popular control of the government
was frustrated by what he deemed to be excessive
judicial restraints drawn from the Due Process Clause
and the Commerce Clause of the Constitution.n From
the beginning to the end of his service he fought what
he considered to be unauthorized efforts of judges to
supersede the judgment of voters and their elected representatives
with the judges' views of appropriate remedies
for social and economic problems.12
Justice Black also came to the Court convinced that
9 H. Black, A Constitutional Faith XVI (1969).
10 Durr, Hugo Black, A Personal Appraisal, 6 Ga. L. Rev. 1.
11 See, e. g., 76 Cong. Rec. 1443-1444 (1933).
12 See, e. g., Hugo L. Black, "Reorganization of the Federal Judiciary,"
a radio address reported in N. Y. Times, Mar. 30, 1937;
Internatiorw.J, Shoe Co. v. Washington, 326 U. S. 310 (1945) (Black,
J., concurring).
MR. JUSTICE BLACK XVII
it had an affirmative responsibility to make other
branches of the National Government as fully responsive
to the will of the people as was consistent with orderly
process and protection of minorities. His experience and
reading reinforced his faith in the practical wisdom of
the separation of powers effected by the Constitution
between the Executive, Legislative and Judicial branches
of Government and between the National Government
and the States. He repeatedly urged the Court to review
and strike down attempts by the Executive to legislate,
adjudicate or engage in activity proscribed, or not
plainly authorized; ' 3 by the Legislature to adjudicate
or enforce through Congressional Committees or by personal
legislation resembling bills of attainder; 14 and
13 "In the framf'work of our Constitution, the President's power to
see that the laws are faithfully executed refutes the idea that he is
to be a lawmaker. The Constitution limits his functions in the lawmaking
process to the recommending of laws he thinks wise and the
vetoing of laws he thinks bad. And the Constitution is neither
silent nor equivocal about who shall make laws which the President
is to execute. The first section of the first article says that 'All
legislative Powers herein granted shall be vested in a Congress of the
United States ... .'
"The Founders of this Nation entrusted the lawmaking power to
the Congress alone in both good and bad times. It would do no
good to rerall the historical events, the fears of power and the hopes
for freedom that lay behind their choice. Such a review would but
confirm our holding that this seizure order cannot stand." Youngstown
Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 587-589 (1952).
See also, Gregory v. Chicago, 394 U.S. 111, 120 (1969) (Black, J.,
concurring).
14 "Those who wrote our Constitution well knew the danger inherent
in special legislative acts which take away the life, liberty,
or property of particular named persons because the legislature thinks
t.hP.m guilty of conduct which deserves punishment. They intended
to safeguard the people of this country from punishment without
trial by duly constituted courts. . . . When our Constitution and
Bill of Rights were written, our ancestors had ample reason to know
that legislative trials and punishments were too dangerous to liberty
to exist in the nation of free men they envisioned. And so they
proscribed bills of attainder." United States v. Lovett, 328 U. S.
303, 317-318 (1946).
XVIII MR. JUSTICE BLACK
by the Judiciary to legislate or administer.15 Any significant
weakening of the careful separation contemplated
by the Constitution could, he believed, lead to
an inordinate accretion of power in one or another of
the branches which would tempt the overreaching branch
to destroy or undermine the others and then turn, unfettered,
upon the people, frustrating their will and
tyrannically abusing their liberties.
As Justice Black was helping to confine the power of
judges to restrain the people's elected representatives
from addressing themselves to solutions of pressing social
and economic needs, he also sought to direct the Court's
prestige and power toward what he conceived as primary
roles which were fashioned for it by the plain words
of the Constitution. Drawing on his experience as a
prosecutor, a judge and a Senator, he used simple but
eloquent language to focus and renew the attention of
his Brethren and the public upon three particular elements
of orderly government by the people under our
Constitution: full adherence to the procedural protections
of the Bill of Rights and other provisions of the
Constitution designed to protect the individual from
abuse of government power; free and universal access
to the political process; and absolute freedom of speech,
belief and thought.
15 Justice Black's insistence that the judiciary stay within the
province of de<'iding specific cases presented to it by litigants is
probably best demonstrated by his repeated dissents from the Court's
promulgation of rules, such as the Federal Rules of Civil Procedure.
See, e. g., StatemC'nt of Mr . .Justice Black and MR. JUSTICE DoUGLAS,
374 U.S. 865--866 (1963):
"We believe that while some of the Rules of Civil Procedure are
simply housekeeping details, many determine matters so substantially
affecting the rights of litigants in lawsuits that in practical effect
they are the equivalent of new legislation which, in our judgment,
the Constitution require,; to be initiated in and enacted by the
Congress and approved by the President. The Constitution, as we
read it, provides that all laws shall be enacted by the House, the
Senate and the President, not by the mere failure of Congress to
reject proposals of an outside agency."
MR. JUSTICE BLACK XIX
I
In his grand jury investigation of police brutality
and other firsthand experience while serving as Solicitor
of Jefferson County, Alabama, Hugo Black had witnessed
the helplessness of the poor and the unfortunate
when confronted by the power of government and the
corrupting effect of official lawlessness. A 1915 Grand
Jury investigating police brutality in Bessemer, Alabama.,
had filed a report ( very likely written for it by the
special prosecutor who conducted the investigation, Hugo
Black) which concluded:
"A man does not forfeit his right ... to be treated
as a human being by reason of the fact tha.t he
is charged with or an officer suspects that he is
guilty of a crime. Instead of being ready and waiting
to strike a prisoner in his custody, an officer
should protect him. . . . Such practices are dishonorable,
tyrannical and despotic and such rights
must not be surrendered to any officer or set of
officers, so long as human life is held sacred and
human liberty and human safety of paramount
importance." 16
In his third term on the Supreme Court Justice Black
was confronted by a case in which his Alabama experience
and his constitutional philosophy merged to produce
an early, and possibly immortal, expression of the
role of the courts in providing fair trials for the helpless
citizen threatened by government. In Chambers v.
Florida, 309 U.S. 227, 240---241 (1940), four young Negro
tenant farmers petitioned the Court to reverse their
murder convictions based on confessions obtained after
seven days of uninterrupted grilling. Jus.tice Black's
majority opinion in that case struck a note which he
resounded again and a.gain over the years:
"We are not impressed by the argument that
law enforcement methods such a.s those under re-
16 See Birmingham Age-Herald, Sept. 18, 1915.
xx MR. JUSTICE BLACK
view are necessary to uphold our laws. The Constitution
proscribes such lawless means irrespective
of the end. And this argument flouts the basic
principle that all people must stand on an equality
before the bar of justice in every American court.
Today, as in ages past, we are not without tragic
proof that the exalted power of some governments
to punish manufactured crime dictatorially is the
handmaid of tyranny. Under our Constitutional
system, courts stand against any winds that blow
as havens of refuge for those who might otherwise
suffer because they are helpless, weak, outnumbered,
or because they are non-oonforming victims of prejudice
and public excitement. Due process of law,
preserved for all by our Constitution, commands
that no such practice as that disclosed by this record
shall send any accused to his death. No higher
duty, no more solemn responsibility, rests upon this
Court, than that of translating into living law and
maintaining this constitutional shield deliberately
planned and inscribed for the benefit of every human
being subject to our Constitution-of whatever race,
creed or persuasion."
Justice Black also knew from his own experience as
prosecutor and defense counsel that a defendant could
seldom, if ever, receive a just trial without representation
by an attorney. How could a defendant, even one
released on bail, marshall the facts? How could he
comprehend the legal questions? How could he avoid
the procedural pitfalls and traps built into the criminal
justice system? How could he approach the bench
and address the learned judge? How could he choose
the jury?
In a 1942 case, involving a poor unemployed farm
hand who was tried without the aid of counsel and
convicted, Justice Black stated his strongly held view,
which he believed he shared with the men who wrote
the Sixth Amendment, that a lawyer is indispensable
MR. JUSTICE BLACK XXI
to a defendant on trial for his liberty. Betts v. Brady,
316 U. S. 455, 476--477 (1942) (Black, J., dissenting).
While Justice Black's dissent argued that the Fourteenth
Amendment made the Sixth Amendment applicable
to the States, he also maintained that:
"A practice cannot be reconciled with 'common
and fundamental ideas of fairness and right,' which
subjects innocent men to increased dangers of conviction
merely because of their poverty. Whether
a man is innocent cannot be determined from a trial
in which, as here, denial of counsel has made it
impossible to conclude, with any satisfactory degree
of certainty, that the defendant's case was adequately
presented ....
"[N]o man [should] be deprived of counsel
merely because of his poverty. Any other practice
seems to me to defeat the promise of our democratic
society to provide equal justice under the
law."
As Justice Black wrote his Chambers, Betts and related
opinions and studied the history of the Constitution
and its Amendments, he began, in the 1940's, to
question the validity of the process by which his predecessors
and colleagues selected concepts or provisions
from the Bill of Rights to apply to the States while
rejecting others. His study convinced him that the
draftsmen of the Bill of Rights had designed a nearly
perfect device for use by courts in protecting individual
liberty and the democratic process from the natural
tyranny of government by men with power, and that
the genius of the Bill of Rights had been fully appreciated
by the framers of the Fourteenth Amendment
when they were selecting a mechanism to protect the
citizens of the States, particularly Negro citizens, from
the tyranny of state government power. The Fourteenth
Amendment framers had quite understandably
and naturally turned to the honored and tested Bill of
XXII MR. JUSTICE BLACK
Rights as the means of extending specific Federal constitutional
protections to all levels of government, instead
of trying to fashion some vague new formula,
such as rights "implicit in the concept of ordered liberty,"
as the means of carrying out their purpose. His
diligent study and persistent search for basic principles
bore fruit in Adamson v. California, 332 U.S. 46 (1947),
where his dissent laid the cornerstone for much of the
rest of his life's work. He wrote there:
"I cannot consider the Bill of Rights to be a.n
outworn Eighteenth Century 'strait jacket' as the
Twining opinion did. Its provisions may be thought
outdated abstractions by some. And it is true that
they were designed to meet ancient evils. But they
are the same kind of human evils that have emerged
from century to century wherever excessive power
is sought by the few at the expense of the many.
In my judgment the people of no nation can lose
their liberty so long as a Bill of Rights like ours
survives and its basic purposes are conscientiously
interpreted, enforced and respected so as to afford
continuous protection against old, as well as new,
devices and practices which might thwart those purposes.
I fear to see the consequences of the Court's
practice of substituting its own concepts of decency
and fundamental justice for the language of the
Bill of Rights as its point of departure in interpreting
and enforcing that Bill of Rights. If the choice
must be between the selective process of the Palko
decision applying some of the Bill of Rights to the
States, or the Twining rule applying none of them,
I would choose the Palko selective process. But
rather than accept either of these choices, I would
follow what I believe was the original purpose of
the Fourteenth Amendment-to extend to all the
people of the nation the complete protection of the
Bill of Rights. To hold that this Court can determine
what, if any, provisions of the Bill of Rights
MR. JUSTICE BLACK XX!l!
will be enforced, and if so to what degree, is to
frustrate the great design of a written Constitution."
Id., at 89.
Upon this foundation he rested his many forceful
opinions insisting not only that the Bill of Rights restrained
the power of state governments but also that
each Amendment applied with exactly the same meaning,
force and effect to the States as it applied to the
Federal Government.
Although in Justice Black's lifetime the full Court
did not adopt his view that the Fourteenth Amendment
had incorporated the Bill of Rights, and it has been
the subject of considerable controversy,11 there is little
doubt about the impact of the Adamson dissent. By
the time Justice Black left the bench almost all the elements
of the Bill of Rights had been applied to the
States.
A charming by-product of Justice Black's effort to
make the Bill of Rights applicable to the States through
the Fourteenth Amendment was one of the most intense
intellectual contests and one of the closest friendships
of Justice Black's life, both with Justice John
Marshall Harlan. Justice Black often said that his
fear of the power of judges, undoubtedly strengthened
by the Court's substantive due process opinions in the
1920's and 1930's, would have little foundation if judges
were all like Justice Harlan. It is a happy vignette
of judicial history and a tribute to both men that their
friendship grew and flourished in the midst of their vigorous
debate. The st-0ry of that friendship had its final
chapter in adjacent rooms at Bethesda Naval Hospital;
the friendly struggle will probably be carried on by the
disciples of each Justice.
The "incorporation" theory of the Fourteenth Amendment
and Justice Bla~k's fight for counsel in all crim-
17 Fairman, Does the Fourteenth Amendment Incorporate the Bill
of Rights?, 2 Stan. L. Rev. 5 ( 1949).
XXIV MR. JUSTICE BLACK
inal cases came together in the Court's 1963 decision
that the Sixth Amendment, made applicable to the
States by the Fourteenth, requires that every defendant
charged with a crime must be offered counsel by the
State if he is without means to hire his own. Gideon
v. Wainwright, 372 U.S. 335 (1963). In vindication of
his dissent in Betts v. Brady, Justice Black recorded
the Court's recognition that:
"[l]n our adversary system of criminal justice,
any person haled into court, who is too poor to
hire a lawyer, cannot be assured a fair trial unless
counsel is provided for him. This seems to us to
be an obvious truth. . . . That government hires
lawyers to prosecute and defendants who have the
money hire lawyers to defend are the strongest indications
of the widespread belief that lawyers in
criminal courts are necessities, not luxuries. The
right of one charged with crime to counsel may not
be deemed fundamental and essential to fair trials
in some countries, but it is in ours. From the
very beginning, our state and national constitutions
and laws have laid great emphasis on procedural
and substantive safeguards designed to assure fair
trials before impartial tribunals in which every defendant
stands equal before the law. This noble
ideal cannot be realized if the poor man charged
with crime has to face his accusers without a lawyer
to assist him .... " Id., at 344.
Justice Black's belief in the vital role of counsel in
criminal cases was reflected in his efforts to limit the
contempt power of judges, particularly as related to
lawyers' vigorous in-court efforts to defend their clients.
He viewed the authority vested in a single life-tenured
jurist to punish a lawyer for contempt after a trial on
account of the lawyer's conduct of that trial as an
anathema to the very concept of the Bill of Rights. In
Sacher v. United States, 343 U. S. 1 ( 1952), for example,
MR. JUSTICE BLACK XXV
Justice Black dissented from the affirmance of a summary
criminal contempt sentence imposed by a United
States District Judge upon attorneys who had energetically
def ended their Communist clients. He wrote:
"Unless we are to depart from high traditions of
the bar, evil purposes of their clients could not be
imputed to these lawyers whose duty it was to
represent them with fidelity and zeal. Yet from
the very parts of the record which [ the trial judge]
specified, it is difficult to escape the impression that
his inferences against the lawyers were colored, however
unconsciously, by his natural abhorrence for
the unpatriotic and treasonable designs attributed
to their Communist leader clients. It appears to
me that if there have ever been, or can ever be,
cases in which lawyers are entitled to a full hearing
before their liberty is forfeited and their professional
hopes are blighted, these are such cases."
Id., at 19.
"Are defendants accused by judges of being offensive
to them to be conclusively presumed guilty
on the theory that judges' observations and inferences
must be accepted as infallible? There is always
a possibility that a judge may be honestly
mistaken. Unfortunately history and the existence
of our Bill of Rights indicate that judicial errors
may be from worse causes." Id., at 22.
The Bar's fond memories and high admiration for
Justice Black may reflect his manifest faith in adversary
proceedings in court as the best means to do justice.
His opinion for the Court in Gideon v. Wainwright displayed
his commitment to the vital role of lawyers in
the adversary process. In Brotherhood of Railroad
Trainmen v. Virginia ex rel. Virginia State Bar, 377
U. S. 1 ( 1964), Justice Black's opinion for the Court
upholding the right of unionized workers on the railroad
XXVI MR. JUSTICE BLACK
to associate and seek legal advice in implementing their
rights under federal laws enacted for their benefit said:
"A State could not, by invoking the power to
regulate the professional conduct of attorneys, infringe
in any way the right of individuals and the
public to be fairly represented in lawsuits authorized
by Congress to effectuate a basic public interest.
Laymen cannot be expected to know how to protect
their rights when dealing with practiced and
carefully counseled adversaries . . . and for them
to associate together to help one another to preserve
and enforce rights granted them under federal
laws cannot be condemned as a threat to legal ethics.
The State can no more keep these workers from
using their cooperatjve plan to advise one another
than it could use more direct means to bar them from
resorting to the courts to vindicate their legal rights.
The right to petition the courts cannot be so handicapped."
J.d., at 7.
Securing access to counsel for the injured and the
aggrieved was for Justice Black the easier part of the
issue. He worked harder and longer against efforts of
government officials, judges and bar association committees
to stifle change and peaceful dissent from the
status quo by disciplining and thereby intimidating or
excluding lawyers who failed to conform to current notions
of "loyalty" or who refused to submit to a searching
examination of their personal beliefs and ties. His
years on the Bench through World War II, the Joseph
McCarthy Era and the desegregation struggle confronted
Justice Black and the Court with repeated instances in
which courts and the Organized Bar sanctioned or attempted
to sanction courageous lawyers who stood up
for their clients' beliefs and constitutional privileges and
who vigorously defended unpopular causes. Over Justice
Black's classic dissents, a divided Court in 1961
affirmed decisions banning Raphael Konigsberg and
George Anastaplo from the legal profession.
MR. JUSTICE BLACK XXVII
In Konigsberg v. State Bar of California, 366 U. S. 36
(1961), and In re Anastaplo, 366 U.S. 82 (1961), Justice
Black eloquently documented his unshakable belief in the
honorable role of courageous, unorthodox lawyers. In
Anastaplo he said:
"This case illustrates to me the serious consequences
to the Bar itself of not affording the full
protections of the First Amendment to its applicants
for admission. For this record shows that Anastaplo
has many of the qualities that are needed in
the American Bar. It shows, not only that Anastaplo
has followed a high moral, ethical and patriotic
course in all of the activities of his life, but
also that he combines these more common virtues
with the uncommon virtue of coura.ge to stand by
his principles at any cost. It is such men as these
who have most greatly honored the profession of
the law-men like Malsherbes, who, at the cost of
his own life and the lives of his family, sprang unafraid
to the defense of Louis XVI against the
fanatical leaders of the Revolutionary government
of France--men like Charles Evans Hughes, Sr.,
later Mr. Chief Justice Hughes, who stood up for
the constitutional rights of socialists to be socialists
and public officials despite the threats and clamorous
protests of self-proclaimed super patriots-men like
Charles Evans Hughes, Jr., and John ,v. Davis,
who, while against everything for which the Communists
stood, strongly advised the Congress in 1948
that it would be unconstitutional to pass the law
then proposed to outlaw the Communist Partymen
like Lord Erskine, James Otis, Clarence Darrow,
and the multitude of others who have dared to
speak in defense of causes and clients without regard
to personal danger to themselves. The legal profession
will lose much of its nobility and its glory
if it is not constantly replenished with lawyers like
these. To force the Bar to become a group of thorXXVIII
MR. JUSTICE BLACK
oughly orthodox, time-serving, government-fearing
individuals is to humiliate and degrade it." Id., at
114-116.
His stirring dissent in Ana.staplo, quoted above, led to
a long exchange of letters with the unsuccessful petitioner
and, more importantly, to an ultimate change of the
Court's position. Baird v. State Bar of Arizona, 401
U.S. 1 (1971); In re Stolar, 401 U.S. 23 (1971).
For Justice Black the constitutional guarantees of a
jury trial in all criminal and most civil cases embodied
in the Sixth and Seventh Amendments provided essential
flexibility in the administration of justice and an ultimate
restraint on possible abuse of power by judges.
The jury, consisting of men drawn from the community
to hear a particular dispute, was an institution with
which Hugo Black had shared great experiences. Perhaps
these experiences and his diligent study of English
history led him to agree with Alexander Hamilton that
the citizens who ratified the Constitution could be divided
"between those who thought that jury trial was
a 'valuable safeguard to liberty' and those who thought
it was 'the very palladium of free government.' " Galloway
v. United States, 319 U. S. 372, 397-398 (1943)
(Black, J., dissenting). His efforts to emphasize and
strengthen the jury's role as a counterbalance to the
power of judges are typified by his opinions that a jury
trial should be afforded in contempt proceedings in which
the judge might otherwise be the unrestrained accuser,
prosecutor and arbitrator of the sentence. See, e. g.,
United States v. United Mine Workers, 330 U. S. 258,
328 ( 1947) (Black and DOUGLAS, JJ., concurring in part
and dissenting in part). His view was perhaps best
expressed in United States v. Barnett, 376 U. S. 681
(1964). He wrote in dissent:
"No provisions of the Constitution and the Bill
of Rights were more widely approved throughout
the new nation than those guaranteeing a right to
trial by jury in all criminal prosecutions. . . . They
MR. JUSTICE BLACK XXIX
were adopted in part, I think, because many people
knew about and disapproved of the type of colonial
happenings ... in which ... people had been sentenced
to be fined, thrown in jail, humiliated in
stocks, whipped, and even nailed by the ear to a
pillory, all punishments imposed by judges without
jury trials. Vnfortunately, as the Court's opinion
points out, judges in the past despite these constitutional
safeguards have claimed for themselves
'inherent' power, acting without a jury and without
other Bill of Rights safeguards, to punish for criminal
contempt of court people whose conduct they
find offensive. This means that one person has
concentrated in himself the power to charge a man
with a crime, prosecute him for it, conduct his
trial, and then find him guilty. I do not agree
that any such 'inherent' power exists. Certainly
no language in the Constitution permits it; in fact,
it is expressly forbidden by the two constitutional
commands for trial by jury." Id., at 725-726.
Justice Black was not deflected from his insistence
upon the strict application of the Bill of Rights to individual
cases, including the right to trial by jury, by
the prospect that some defendants who had, in fact,
committed crimes would, on occasion, escape the consequences
of these crimes. In a rare public intervie,v
on a national television special, he stated:
"Why did they write the Bill of Rights? [The
first ten Amendments] practically all relate to the
way cases shall be tried, and practically all of them
make it more difficult to convict people of crime.
What about guaranteeing a man a right to a lawyer?
Of course, that makes it more difficult to convict
him. What about saying that he shall not be compelled
to. be a witness against himself? That makes
it more difficult to convict him. . . . They were
every one intended to make it more difficult before
the doors of a prison closed on a man .... " CBS
XXX MR. JUSTICE BLACK
News Special: Mr. Justice Black and the Bill of
Rights, Library of Congress Motion Picture Collection,
FBA 6334, Reel 2, 600-650 feet.
However, his concern for law enforcement never faded.
In cases where he felt that a majority of the Court unreasonably
expanded the scope of the Fourth Amendment
proscription against "unreasonable" searches and seizures,
he chided them:
"It is difficult for me to believe the Framers of
the Bill of Rights intended that the police be required
to prove a defendant's guilt in a 'little trial'
before the issuance of a search warrant. . . .
[E]avesdroppers were deemed to be competent
witnesses in both English and American courts up
until this Court in its Fourth Amendment 'rulemaking'
capacity undertook to lay down rules for
electronic surveillance. . . . The reasonableness of
a search incident to an arrest, extending to areas
under the control of the defendant and areas where
evidence may be found, was an established tenet of
English common law, and American constitutional
law after adoption of the Fourth Amendment~
that is, until Chimel v. California, 395 U. S. 752
(1969). The broad, abstract, and ambiguous concept
of 'privacy' is now unjustifiably urged as a
comprehensive substitute for the Fourth Amendment's
guarantee against 'unreasonable searches and
seizures.' Griswold v. Connecticut, 381 U. S. 479
(1965).
"Our Government is founded upon a written
Constitution. The draftsmen expressed themselves
in careful and measured terms corresponding with
the immense importance of the powers delegated to
them. The Framers of the Constitution, and the
people who adopted it, must be understood to have
used words in their natural meaning, and to have
intended what they said. The Constitution itself
MR. JUSTICE BLACK XXXI
contains the standards by which the seizure of evidence
challenged in the present case and the admissibility
of that evidence at trial is to be measured
in the absence of congressional legislation." Coolidge
v. New Hampshire, 403 U. S. 443, 499-500
(1971) (Black, J., concurring and dissenting).
In Justice Black's view an orderly courtroom was
also a necessary ingredient for the conduct of a fair trial.
This view was forcefully expressed in his opinion outlining
the sanctions available to a judge faced with an
obstreperous defendant in the courtroom. His opinion
for the Court in Illinois v. Allen, 397 U. S. 337, 346-347
(1970), states:
"It is not pleasant to hold that the respondent
Allen was properly banished from the court for a
part of his own trial. But our courts, palladiums
of liberty as they are, cannot be treated disrespectfully
with impunity. Nor can the accused be permitted
by his disruptive conduct indefinitely to
avoid being tried on the charges brought against
him. It would degrade our country and our judicial
system to permit our courts to be bullied,
insulted, and humiliated and their orderly progress
thwarted and obstructed by defendants brought before
them charged with crimes. As guardians of
the public welfare, our state and federal judicial
systems strive to administer equal justice to the
rich and the poor, the good and the bad, the native
and foreign born of every race, nationality, and
religion. Being manned by humans, the courts are
not perfect and are bound to make some errors.
But, if our courts are to remain what the Founders
intended, the citadels of justice, their proceedings
cannot and must not be infected with the sort of
scurrilous, abusive language and conduct paraded
before the Illinois trial judge in this case . . .. "
xxxn MR. JUSTICE- BLACK
II
Justice Black's work reflects his concept that a second
major role of the Court under the Constitution was
to open the channels of the political process. During
his service on the Court controversies about popular control
of government appeared in diverse forms. When
Justice Black came to the bench, electoral equality
generally was far from a reality. The Court regarded
reapportionment as a "political thicket" to be avoided.18
Justice Black, however, saw the threat to our constitutional
form of government in self-perpetuating "rotten
boroughs" as a responsibility of the Court as interpreter
and enforcer of the Constitution. For him the right
to an undiluted vote was "too important in our free
society to be stripped of judicial protection." 19 In his
dissenting opinion in Colegrove v. Green, 328 U. S. 549,
566 ( 1946), he forecast not only penetration of the reapportionment
thicket but also the ultimate "one-man,
one-vote" standard adopted by the Court in Reynolds v.
Sims, 377 U. S. 533 (1964).
In the South, the controversies about access to the
political process focused on racial discrimination. At
a time when the South was considered by many an eccentric
pocket of racial discrimination, in contrast with the
rest of the Nation, Justice Black spoke of the people
of the South as decent and compassionate human beings,
who, he believed, could, with leadership, live down the
tragedies of slavery, the Civil War, Reconstruction, and
segregation. His opinions stressed that equal education
and equal suffrage were the principal means to total
equality under law. Perhaps his Senate campaign days,
stumping the State of Alabama, led him to believe that
no right could create the respect for a man or recognition
of his views by elected officials like his right to
18 E.g., Colegrove v. Green, 328 U.S. 549, 556 (1946).
19 Wesberry v. Sanders, 376 U.S. 1, 7 (1964).
MR. JUSTICE BLACK XXXI!l
vote for local, county, state, and federal oflicers.2° But
he dissented from the Court's decisions upholding regional
sanctions against voting discrimination which he
viewed as penalties against the Southern States reminiscent
of Reconstruction.21
By the time Justice Black died, the face of the South
had changed dramatically. School desegregation spurred
by Alexander v. Holmes County Bd. of Ed., 396 U. S.
19 (19,69), had produced more school integration in the
South than in the North. Negro officials sat in state
legislatures for the first time since Reconstruction and
various cities and towns had black mayors or aldermen.
A new spirit of warmth and moderation pervaded Southern
politics replacing the bluster of massive resistance.
When specific groups were disenfranchised or forced
to forfeit full political participation, Justice Black defended
them. For example, he dissented from the Court's
opinion sustaining the constitutionality of the Hatch
Act, which barred public employees from engaging in
political activity.
"The section of the Act here held valid reduces
the constitutionally protected liberty of several million
citizens to less than a shadow of its substance.
It relegates mi11ions of federal, state, and municipal
employees to the role of mere spectators of events
upon which hinge the safety and welfare of all the
people, including public employees. It removes a
sizable proportion of our electorate from full participation
in affairs destined to mold the fortunes of
the nation. It makes honest participation in essential
political activities an offense punishable by
proscription from public employment. It endows a
20 Voter registration, facilitated by court decisions and new federal
legislation, had established the Southern Negroes as a potent political
force, particularly in local affairs.
21 South Carolina v. Katzenbach, 383 U.S. 301, 355 (1966) (Black,
J., concurring and dissenting); Perkins v. Matthews, 400 U. S. 379,
401 (1971).
XXXIV MR. JUSTICE BLACK
governmental board with the awesome power to
censor the thoughts, expressions, and activities of
law-abiding citizens in the field of free expression
from which no person should be barred by a government
which boasts that it is a government of,
for, and by the people-all the people. Laudable
as its purpose may be, it seems to me to hack at
the roots of a Government by the people themselves;
and consequently I cannot agree to sustain its validity."
United Public Workers v. Mitchell, 330 U.S.
75, 115 (1947). (Emphasis added.)
In Williams v. Rhodes, 393 lJ. S. 23 (1968), Justice
Black led the Court to take another step toward equal
access for all to the ballot box by coming to the aid
of a political candidate, whose views and actions Justice
Black may well have abhorred. The American Independent
Party candidate for President had been denied
a place on the ballot because he had failed to secure
sufficient petition signatures by the appropriate date.
In striking down the complex rules which infringed on
George Wallace's right to become a candidate, Justice
Black wrote:
"In the present situation the state laws place burdens
on two different, although overlapping, kinds
of rights-the right of individuals to associate for the
advancement of political beliefs, and the right of
qualified voters, regardless of their political persuasion,
to cast their votes effectively. Both of these
rights, of course, rank among our most precious
freedoms. We have repeatedly held that freedom
of association is protected by the First Amendment.
And of course this freedom protected against federal
encroachment by the First Amendment is entitled
under the Fourteenth Amendment to the same protection
from infringement by the States. Similarly
we have said with reference to the right to vote:
'No right is more precious in a free country than
MR. JUSTICE BLACK XXXV
that of having a voice in the election of those who
make the laws under which, as good citizens, we
must live. Other rights, even the most basic, are
illusory if the right to vote is undermined.'" Id.,
at 30-31.
III
The third area in which Justice Black sought to fulfill
the goals of the Founding Fathers, as he perceived them,
and the area in which his constitutional faith attracted
the greatest public attention involved what Oliver
Wendell Holmes called the "free trade of ideas." In a
real sense, Justice Black viewed the First Amendment
as the foundation of the American democratic process--
the foundation that permitted a man to conceive an idea,
to express it, and to associate with other men of like
persuasion to further their common interests. It would
be difficult to find better words to express this belief in
the First Amendment than those chosen by Justice Black
himself early in his Court career. In February 1941,
less than four years after he was appointed to the Court,
he wrote:
"I view the guaranties of the First Amendment as
the foundation upon which our governmental structure
rests and without which it could not continue
to endure as conceived and planned. Freedom to
spook and write about public questions is as important
to the life of our government as is the heart
to the human body. In fact, this privilege is the
heart of our government. If that heart be weakened,
the result is debilitation; if it be stilled, the
result is death." Milk Wagon Drivers Union v.
Meadowmoor Dairies, 312 U. S. 287 (1941) (dissenting
opinion). (Emphasis added.)
Like the human heart, the liberty which is the core
0f a democratic government requires the greatest protection
in times of severe stress, such as war or social
upheaval. In each such time of crisis, Justice Black
XXXVI MR. JUSTICE BLACK
stood beside the First Amendment against a tide of
popular opinion so aroused in opposition to a common
"enemy" that it often failed to recognize the selfdestructive
consequences of its own actions. Justice
Black saw the threat which he communicated with eloquent
simplicity in his dissents:
"I do not believe that it can be too often repeated
that the freedoms of speech, press, petition
and assembly guaranteed by the First Amendment
must be accorded to the ideas we hate or sooner or
later they will be denied to the ideas we cherish .... "
Commun-ist Party v. Subversive Activities Control
Board, 367 U. S. 1, 137 (1961).
After World War II, sentiment was strong against
persons of German descent. When the Court upheld
the deportation of a German alien who was alleged to
be "dangerous to the public peace and safety" under the
Alien Enemy Act, Justice Black dis.5ented, drawing an
analogy to the 1798 Alien and Sedition Acts. He wrote:
"[T]he First Amendment represents this nation's
belief that the spread of political ideas must not
be suppressed. And the avowed purpose of the
Alien Enemy Act was not to stifle the spread of
ideas after hostilities had ended. Others in the
series of Alien and Sedition Acts did provide for
prison punishment of people who had or at least
who dared to express political ideas. I cannot now
agree to an interpretation of the Alien Enemy Act
which gives a new life to the long repudiated antifree
speech and anti-free press philosophy of the
1798 Alien and Sedition Acts. I would not disinter
that philosophy which the people have long hoped
Thomas Jefferson had permanently buried when he
pardoned the last person convicted for violation of
the Alien and Sedition Acts." Ludecke v. Watkins,
335 u. s. 160, 181-183 (1948).
MR. JUSTICE BLACK XXXVII
The Korean conflict brought on another cycle of public
harassment of allegedly or potentially disloyal citizens,
Communists and their sympathizers. Justice Black's r:esistance
to the extraordinary measures taken by a fearful
government and its frightened citizens brought him
much personal abuse. The personal attacks only
strengthened his faith and heightened the insight and
courage that he embodied in his written memorials to
free speech. His dissent on behalf of eleven American
Communist Party leaders at the height of the Korean
War in Dennis v. United States, 341 U.S. 494 (1951), is
one such memorial:
"The opinions for affirmance indicate that the chief
reason for jettisoning the rule is the expressed fear
that advocacy of Communist doctrine endangers
the safety of the Republic. Undoubtedly, a governmental
policy of unfettered communication of
ideas does entail dangers. To the Founders of this
Nation, however, the benefits derived from free expression
,vere worth the risk. ... " Id., at 580.
"Public opinion being what it now is, few will
protest the conviction of these Communist petitioners.
There is hope, however, that in calmer
times, when present pressures, passions and fears
subside, this or some later Court will restore the
First Amendment liberties to the high pref erred
place where they belong in a free society." Id.,
at 581.
Even before Cold War tensions had relaxed, the Nation
and the Court were confronted by the inevitable tensions
generated by the American Negro's increasingly
successful struggle for equality. The marches, demonstrations,
sit-ins, and confrontations of the 1960's presented
new challenges, both to free speech and to an
orderly society. In Cox v. Louisiana, 379 U. S. 559
(1965), Justice Black emphasized the careful distinction
between speech and conduct which he believed necessary
XXXVIII MR. JUSTICE BLACK
simultaneously to provide protection to the rights of
individuals to associate for the advancement of their
beliefs and to protect the public against incipient and
actual violence and intimidation of the orderly functioning
of government and the courts. He wrote:
"The First and Fourteenth Amendments, I think,
take away from government, state and federal, all
power to restrict freedom of speech, press, and assembly
where people have a right to be for such
purposes. This does not mean, however, that these
amendments also grant a constitutional right to
engage in the conduct of picketing or patrolling,
whether on publicly owned streets or on privately
owned property. Were the law otherwise, people
on the streets, in their homes and anywhere else
could be compelled to listen against their will to
speakers they did not want to hear. Picketing,
though it may be utilized to communicate ideas, is
not speech, and therefore is not of itself protected
by the First Amendment." Id., at 578 (concurring
and dissenting).
As the social unrest concentrated in the South in the
early 1960's turned to urban riots elsewhere in America
in the late 1960's, many who feared anarchy were ready
to weaken the rights of free speech and free assembly
to re-establish more rigid order. Disorderly conduct and
trespassing convictions appeared frequently on the
Court's docket. Many Supreme Court decisions were
misconstrued by large segments of the public who viewed
them either as too restrictive or too permissive, depending
upon their individual persuasions. In Gregory v.
Chicago, 394 U. S. 111 (1969), Justice Black again attempted
to find the safe channel between speech and
conduct, between rights protected by the First Amendment
and actions subject to legislative regulation.
Comedian Dick Gregory had conducted an orderly march
through Chicago in the face of hecklers. The l11inois
MR. JUSTICE BLACK XXXIX
courts had found that he had been completely lawabiding
until policemen, concerned that the hecklers
would provoke a breach of the peace, had ordered Gregory
and his demonstrators to disperse. When they failed
to leave, they were arrested and charged with disorderly
conduct. Concurring in the Court's opinion reversing
the conviction, Justice Black said:
"[UJ nder our democratic system of government,
lawmaking is not entrusted to the moment-tornoment
judgment of the policeman on his beat.
Laws, that is valid laws, are to be made by representatives
chosen to make laws for the future, not
by police officers whose duty is to enforce laws
already enactBd and to make arrests only for conduct
already made criminal. . . . To let a policeman's
command become equivalent to a criminal
statute comes dangerously near making our government
one of men rather than of laws." Id., at 120.
However, Justice Black offset his concurrence in the
reversal of Gregory's conviction with a clear warning
that in his view conduct can be and should be regulated
to protect other people, their families, their homes
and their serenity. In the same opinion he wrote:
"Speech and press are, of course, to be free, so
that public matters can be discussed with impunity.
But picketing and demonstrating can be regulated
like other conduct of men. I believe that the homes
of men, sometimes the last citadel of the tired, the
weary, and the sick, can be protected by government
from noisy, marching, tramping, threatening
picketers and demonstrators bent on filling the minds
of men, women, and children with fears of the
unknown." Id., at 125-126.
Justice Black believed that the First Amendment was
designed to protect individual men. He was unwilling
to "balance" away the rights of any individual person
XL MR. JUSTICE BLACK
for some higher governmental purpose. In Barenblatt
v. United States, 360 U. S. 109 (1959), Justice Black
expressed his belief that the protection provided by the
First Amendment enabling individual men and ,vomen
to voice their beliefs and ensuring that other persons
could hear the speaker was itself one of the highest purposes
of the Founding Fathers of the Republic. He said:
"[E]ven assuming what I cannot assume, that
some balancing is proper in this case, I feel that
the Court after stating the test ignores it completely.
At most it balances the right of the Go,vernment to
preserve itself, against Barenblatt's right to refrain
from revealing Communist affiliations. Such a balance,
however, mistakes the factors to be weighed.
In the first place, it completely leaves out the real
interest in Barenblatt's silence, the interest of the
people as a whole in being able to join organizations,
advocate causes and make political 'mistakes' without
later being subjected to governmental penalties
for having dared to think for themselves. It is this
right, the right to err politically, which keeps us
strong as a Nation .... " Id., at 144 (dissenting
opinion).
Justice Black's appreciation of the value to society as
a whole from enforcement of the First Amendment to
protect the speech and writings of one individual is
also reflected in his opinions interpreting the freedom
of religion elements in the First Amendment. He gave
to the Free Exercise and No Establishment of Religion
Clauses of the First Amendment the same sympathetic
consideration that he devoted to the speech and free
press guarantees. He treated these provisions as interrelated
devices to protect the American heritage of freedom.
In fact, the decision in Reynolds v. United States,
98 U. S. 145 (1879), in which the Court upheld the
prohibition against polygamy, even as applied to Mormons
who had more than one wife as a profession of
MR. JUSTICE BLACK XLI
their religious beliefs, apparently led him to the speechconduct
differentiation which for him marked the limits
of the First Amendment's protections.
Justice Black sat on the bench during times when
religious freedom was subjected to intense pressures
from competing social forces. Parochial schools and
their sponsors sought public aid to meet the ever-rising
costs of education, while minority religious groups attacked
flag salutes, school prayer services and Sunday
closing laws. These questions were not easy for Justice
Black to decide and upon reflection he was unable to
reconcile his first judgment as a Justice with the First
Amendment. Minersville School District v. Gobitis, 310
U. S. 586 (1940). In Jones v. Opelika, 316 U. S. 584
(1942), and West Virginia Bd. of Ed. v. Barnette, 319
U. S. 624 ( 1943), he admitted his error. In his concurring
opinion in Barnette, he expressed his profound
respect for freedom of belief and thought:
"No well-ordered society can leave to the individuals
an absolute right to make final decisions,
unassailable by the State, as to everything they will
or will not do. The First Amendment does not go
so far. Religious faiths, honestly held, do not free
individuals from responsibility to conduct themselves
obediently to laws which are either imperatively
necessary to protect society as a whole from
grave and pressingly imminent dangers or which,
without any general prohibition, merely regulate
time, place or manner of religious activity. Decision
as to the constitutionality of particular laws
which strike at the substance of religious tenets and
practices must be made by this Court. The duty
is a solemn one, and in meeting it we cannot say
that a failure, because of religious scruples, to assume
a particular physical position and to repeat
the words of a patriotic formula creates a grave
danger to the nation. Such a statutory exaction
XLII MR. JUSTICE BLACK
is a form of test oath, and the test oath has always
been abhorrent in the United States.
"Words uttered under coercion are proof of loyalty
to nothing but self-interest. Love of country must
spring from willing hearts and free minds, inspired
by a fair administration of wise laws enacted by the
people's elected representatives within the bounds
of express constitutional prohibitions. These laws
must, to be consistent with the First Amendment,
permit the widest toleration of conflicting viewpoints
consistent with a society of free men.
"Neither our domestic tranquillity in peace nor
our martial effort in war depend on compelling little
children to participate in a ceremony which ends
in nothing for them but a fear of spiritual condemnation.
If, as we think, their fears are groundless,
time and reason are the proper antidotes for their
errors .... " Id., at 643-644.
After his initial uncertainty over the meaning of the
First Amendment prohibition on government interference
in religion, Justice Black wrote three landmark decisions
on the relationship between church and state. His Everson
opinion for the Court, holding that New Jersey could
constitutionally pay a school transportation subsidy to
parents of school children, including parents who used
the subsidy to send their children to religious schools, is
usually cited as precedent for the limited nature of governmental
power in the area of religious education.
"The 'establishment of religion' clause of the First
Amendment means at least this: Neither a state
nor the Federal Government can set up a church.
Neither can pass laws which aid one religion, aid
all religions, or prefer one religion over another.
Neither can force nor influence a person to go to
or to remain away from church against his will or
force him to profess a belief or disbelief in any religion.
No person can be punished for entertaining
MR. JUSTICE BLACK XLIII
or professing religious beliefs or disbeliefs, for church
attendance or non-attendance. No tax in any
amount, large or small, can be levied to support any
religious activities or institutions, whatever they
may be called, or whatever form they may adopt to
teach or practice religion. Neither a state nor the
Federal Government can, openly or secretly, participate
in the affairs of any religious organizations or
groups and vice versa. In the words of Jefferson,
the clause against establishment of religion by law
was intended to erect 'a wall of separation between
church and State.'" Everson v. Board of Education,
330 U. S. 1, 15-16 (1947).
Building upon Everson Justice Black wrote the Court's
opinion invalidating the practice of some schools to release
time in the school day so that students could participate
voluntarily in religious activities within the
school building. Illinois ex rel. McCollum v. Board of
Education, 333 U.S. 203 (1948).
"To hold that a state cannot consistently with the
First and Fourteenth Amendments utilize its public
school system to aid any or all religious faiths or
sects in the dissemination of their doctrines and
ideals does not, as counsel urge, manifest a governmental
hostility to religion or religious teachings.
A manifestation of such hostility would be at war
with our national tradition as embodied in the First
Amendment's guaranty of the free exercise of religion.
For the First Amendment rests upon the
premise that both religion and government can best
work to achieve their lofty aims if each is left free
from the other within its respective sphere . . . . "
Id., at 211-212.
Finally, in 1962 Justice Black wrote one of the most
controversial opinions rendered by the Court during the
quarter-century he had by then been an Associate Justice.
In Engel v. Vitale, 370 U.S. 421 (1962), the Court held
XLIV MR. JUSTICE BLACK
that the Constitution outlawed voluntary repetition of
the New York Regents' Prayer in the public schools of
that State. The opinion reflects Justice Black's deep
respect for Thomas Jefferson's "wall of separation" between
church and state and the Justice's own strong
religious upbringing.
"It has been argued that to apply the Constitution
in such a way as to prohibit state laws respecting
an establishment of religious services in public
schools is to indicate a hostility toward religion or
toward prayer. Nothing, of course, could be more
wrong. The history of man is inseparable from the
history of religion. And perhaps it is not too much
to say that since the beginning of that history many
people have devoutly believed that '[m] ore things
are wrought by prayer than this world dreams of.'
It was doubtless largely due to men who believed
this that there grew up a sentiment that caused
men to leave the cross-currents of officially established
state religions and religious persecution in
Europe and come to this country filled with the hope
that they could find a place in which they could
pray when they pleased to the God of their faith in
the language they chose. And there were men of
this same faith in the power of prayer who led the
fight for adoption of our Constitution and also for
our Bill of Rights with the very guarantees of religious
freedom that forbid the sort of governmental
activity which New York has attempted here. These
men knew that the First Amendment, which tried
to put an end to governmental control of religion
and of prayer, was not written to destroy either.
They knew rather that it was written to quiet welljustified
fears which nearly all of them felt arising
out of an awareness that governments of the past
had shackled men's tongues to make them speak
only the religious thoughts that government wanted
them to speak and to pray only to the God that
MR. JUSTICE BLACK XLV
government wanted them to pray to. It is neither
sacrilegious nor antireligious to say that each separate
government in this country should stay out of
the business of writing or sanctioning official prayers
and leave that purely religious function to the people
themselves and to those the people choose to
look to for religious guidance." Id., at 433--435.
We believe that it would be fitting to end this remembrance
of Justice Black as he ended thirty-four
Terms in pursuit of his constitutional faith-with attention
to his deep concern for freedom of the press.
His opinion supporting the right of several newspapers
to publish the Pentagon Papers critical of the Viet Nam
War was the culmination of his effort over his entire
long tenure to keep the press free from government
interference.
In Bridges v. California, 314 U. S. 252 ( 1941), Justice
Black's opinion for the Court upheld the right of an individual
citizen vigorously to speak his mind to government
officials and the right of a newspaper to editorialize
about pending lawsuits. He wrote:
"No suggestion can be found in the Constitution
that the freedom there guaranteed for speech and the
press bears an inverse ratio to the timeliness and
importance of the ideas seeking expression. Yet, it
would follow as a practical result of the decisions
below that anyone who might wish to give public
expression to his views on a pending case involving
no matter what problem of public interest, just at the
time his audience would be most receptive, would be
as effectively discouraged as if a deliberate statutory
scheme of censorship had been adopted. Indeed,
perhaps more so, because under a legislative specification
of the particular kinds of expressions prohibited
and the circumstances under which the prohibitions
are to operate, the speaker or publisher might at
least have an authoritative guide to the permissible
scope of comment, instead of being compelled to act
XLVI MR. JUSTICE BLACK
at the peril that judges might find in the utterance
a 'reasonable tendency' to obstruct justice in a pending
case." Id., at 269.
And in New York Times Co. v. Sullivan, 376 U. S. 254,
293 ( 1964), his concurring opinion expressed his opposition
to onerous libel judgments that might curb the unfettered
flow of news to the great detriment of our free
society. His dramatic grand finale, in New York Times
Co. v. United States, 403 U. S. 713 (1971), re-expressed
much of the faith he always had in that well worn, dogeared
little paperback booklet entitled "The Constitution
of the United States of America" which was seldom
out of his reach:
"The Bill of Rights changed the original Constitution
into a new charter under which no branch of
government could abridge the people's freedoms of
press, speech, religion, and assembly. Yet the Solicitor
General argues and some members of the
Court appear to agree that the general powers of the
Government adopted in the original Constitution
should be interpreted to limit and restrict the specific
and emphatic guarantees of the Bill of Rights
adopted later. I can imagine no greater perversion
of history. Madison and the other Framers of the
First Amendment, able men that they were, wrote
in language they earnestly believed could never be
misunderstood: 'Congress shall make no law . . .
abridging the freedom ... of the press ... .' Both
the history and language of the First Amendment
support the view that the press must be left free to
publish news, whatever the source, without censorship,
injunctions, or prior restraints.
"In the First Amendment the Founding Fathers
gave the free press the protection it must have to
fulfill its essential role in our democracy. The press
was to serve the governed, not the governors. The
Government's power to censor the press was abolished
so that the press would remain forever free
MR. JUSTICE BLACK XLVII
to censure the Government. The press was protected
so that it could bare the secrets of government
and inform the people. Only a free and unrestrained
press can effectively expose deception in
government. And paramount among the responsibilities
of a free press is the duty to prevent any
part of the government from deceiving the people
and sending them off to distant lands to die of foreign
fevers and foreign shot and shell .... " 22 Id.,
at 716-717 ( concurring opinion).
Now the work of Justice Black is done. His constitutional
faith is recorded in over 100 volumes of the United
States Reports, the 3,000 Court decisions on which he
voted and the nearly 1,000 opinions which he wrote,
53 of them in his last Term.
We must, of course, await the judgment of history for
a valid appraisal of his work. We need not wait to
acknowledge with gratitude that he was, indeed, one
"who tried his dead level best to serve." And there are
many already prepared to join in an admiring judgment
rendered over ten years ago that:
"This man is meant for the ages. No future Supreme
Court Justice, a hundred years hence or a
thousand, will ignore with inner impunity the myriad
brilliant insights, learned analyses, yes, and fervent
faiths that mark, in ma_jority or dissent, his judicial
record. The pity is only that Hugo LaFayette Black
in person--he of the warm wisdom and the quiet
courage and gentle strength-cannot, as will his
opinions, live forever." 23
Wherefore, it is resolved that we, the Bar of the Supreme
Court of the united States, express our sorrow
22 Those who would doubt that Hugo Black remained a Southerner
throughout his life should compare the last sentence quoted above
with the ballad, "I Am a Dirty Rebel."
23 Professor Fred Rodell, quoted in I. Dilliard, One Man's Stand
for Freedom 26 (1963).
XLVIII MR. JUSTICE BLACK
and deep sense of loss that Justice Black is no longer
with us; we are comforted by the knowledge that he
lived (and knew that he had lived) a full and useful life
in which he served his people and his country with every
ounce of the considerable energy, love and devotion which
he could muster; we are strengthened by his example of
courage, discipline, steadfastness and wisdom; and we
are inspired by his Pnduring faith that our written Constitution,
our Bill of Rights and the rule of law are the
best instruments yet designed for the preservation and
peaceful development of the Nation he knew and loved.
And it i.s further resolved that the Chairman of our
C-0mmittee on Resolutions be directed to present these
resolutions to the Court with the prayer that they be
embodied in its permanent records.
THE CHIEF J rSTICE said:
Thank you, Mr. Solicitor General, your motion will be
granted. We will now hear from the Acting Attorney
General of the rnited States.
Mr. Acting Attorney General Kleindienst addressed the
Court as follows:
Mr. Chief Justice , may it please the Court:
The Bar of this Court met today to honor the memory
of Hugo L. Black, Associate Justice of the Supreme Court
for 34 years, from 1937 to 1971. Without doubt, he was
and will remain one of the most revered Justices this
country has ever known and we can say with assurance
that when the history of the twentieth century is written
three decades hence, Hugo Black will take his place
among the towering judicial figures of these eventful
times. In recalling Justice Black we are reminded of the
words of Judge Learned Hand in his tribute to Cardozo:
"He is gone, and while the west is still lighted with his
MR. JUSTICE BLACK XLIX
radiance, it is well for us to pause and take count of our
own coarser selves."
The hills of Alabama caught the first gleam of the
morning in 1886 and even three-quarters of a century
later Justice Black would still describe himself, with
characteristic modesty, as a "rather backward country
fellow." The story of his journey from Clay County to
the Supreme Court of the United States has been often
told; it is a journey that cannot be measured in time or
distance but in accumulated wisdom and experience. On
this occasion we can do no more than note some of the
markers along the way: his modest formal education and
the start of his legal career at the age of 18 when he
entered the University of Alabama Law School; his brief
tenure as a judge of a Birmingham criminal court with
petty jurisdiction and his later term spent as a prosecuting
attorney-€xperience that provided lasting lessons in
the operation of criminal procedures and vivid memories
of the plight of the poor and disadvantaged; his general
practice of law after service in the Army during World
War I and his effectiveness in pleading his clients' cases
before the jury; his ten-year career in the Senate, where
he played an important role in the passage of such New
Deal measures as the TVA, the Public Utility Holding
Company Act of 1935 and the Fair Labor Standards Act
of 1938; and his diligent self-education resulting in a
knowledge both wide and deep.
All this and much more would have to be taken into
account before any portrayal of the background of the
man would even approach completeness. This we must
leave to those who can speak more intimately. But no
matter how brief and inadequate our mention of his early
years, we cannot leave out one essential ingredient that
is infused in everything he did. For in William James'
phrase, Hugo Black "energized at his maximum"-constantly.
Once set in motion, he would not rest until he
finished the job at hand. And whatever the task, whether
clearing the docket of the Birmingham criminal court,
L MR. JUSTICE BLACK
or playing tennis on a Sunday afternoon, or struggling
with an important and difficult case before the Supreme
Court, he devoted all the strength and zeal he could summon-
and that was considerable.
Add to this his great courage-the most important of
all virtues because, as Dr. Johnson reminded, without it
a man "has no security for preserving any other"-add to
this his great courage to hold true to his beliefs and it is
not at all unusual to find Mr. Justice Black reversing, in
his first opinion for the Court, no less an eminence than
Judge Learned Hand and, what is more, doing so less than
three weeks after oral argument in a case that can hardly
be described as simple. Federal Trade Commi,ssion v.
Standard Education Society, 302 U. S. 112.
During his first Term, in his opinion for the Court in
Johnson v. Zerbst, 304 U. S. 458, we can also see the beginning
of his relentless effort to secure the right to counsel
for all defendants in criminal cases, which successfully
culminated 25 years later in his famous opinion in Gideon
v. Wainwright, 372 U.S. 335. Johnson v. Zerbst is noteworthy
too for his exhaustive, but succinct definition of
waiver as an "intentional relinquishment or abandonment
of a known right or privilege," 304 U. S. 464-a pronouncement
that to this day has exerted substantial
influence.
There are many themes that recur in Justice Black's
op1mons. His insistence on focusing on what the decision
would mean to the individuals affected by it is well known.
See, e.g., Fleming v. Nestor, 363 U.S. 603, 621, 624 (dissenting
opinion). He was concerned with setting down
firm and concise rules so that people could govern their
actions accordingly and, just as important, so that judges
would not be set adrift in a sea of uncertainty where, in
his words, the "fundamental rights of the people [ would]
be dependent upon the different emphasis different judges
put upon different values at different times." Konigsberg
v. State Bar, 366 U. S. 56, 75 (dissenting opinion).
To Justice Black, flexibility was not a desirable attribute
MR. JUSTICE BLACK LI
but a positive evil to be avoided in dealing with people's
constitutional rights. He wrote, for example, in his dissenting
opinion in Braden v. United States, 365 U.S. 438,
445, that: "The majority's approach makes the First
Amendment, not the rigid protection of liberty its language
imports, but a poor flexible imitation."
All who knew him or who have read his opinions are
aware of his penetrating intelligence and of his ability to
reason logically and with force. But Justice Black believed,
as he stated only a few years after he began his
career on the bench, that "Constitutional interpretation
should involve more than dialectics. The great principles
of liberty written in the Bill of Rights cannot safely be
treated as imprisoned in the walls of formal logic .... "
Feldman v. United States, 322 U. S. 487, 499 (dissenting
opinion). He knew well Dean Pound's admonition that
"logic does not give starting points" and, whether the Bill
of Rights or federal legislation was involved, Justice
Black adhered to the view that starting points were not
to be devised by judges. Instead they were to be gleaned
from the Founders or the legislature, in light of the language
used and its historical background. As he wrote
in describing his constitutional faith, "it is language and
history that are the crucial factors which influence me in
interpreting the Constitution-not reasonableness or desirability
as determined by Justices of the Supreme
Court."
When he had decided what the Framers meant he
maintained that position with consistency and integrity.
Throughout his succeeding years on the Court, for example,
he never departed from the view, first expounded
in Adamson v. California, 332 U. S. 46, 68 (dissenting
opinion), that the Fourteenth Amendment made the Bill
of Rights fully applicable to the states-a view he arrived
at through the study of history and one buttressed
by the fact that other theories such as "selective incorporation"
left judges free to determine what rights were
"fundamental."
LII MR. JUSTICE BLACK
This is not to say, however, that for him the great constitutional
guarantees were confined within static bounds.
Repeatedly, his opinions marked a path for applying the
substance of those guarantees to new factual circumstances
that could not have been known to their Framers.
An example is his opinion for the Court in United States
v. Lovett, 328 U. S. 303, which breathed new vitality into
the prohibition of bills of attainder.
Perhaps he is best known for his position that the First
Amendment is an "absolute"-that when the Framers
said: "Congress shall make no law . . . abridging the
freedom of speech" they meant "no law." It was in cases
involving freedom of speech that he made his most impassioned
arguments, for he was unashamed of human
emotions and unhesitant about revealing his own in defense
of liberty. Often in dissent he would chide the
majority for employing what he described as the "socalled
balancing test." To Justice Black, the Framers
had done all the balancing when they wrote the First
Amendment. And even when his pleas failed to persuade,
particularly during the turbulent period of the early fifties,
one can still feel in his dissents the breezes of humanity
blowing in to purify the atmosphere and set the tone for
decision in calmer times. Compare Dennis v. United
States, 341 U. S. 579, 581 (dissenting opinion), with
Yates v. United States, 354 U. S. 298.
There were qualities about Justice Black that invited
further inquiry by those who did not know him but knew
only of him, apparent paradoxes that vanished as the
image of the man sharpened. He had great warmth and
kindliness, but his opinions and his memorable oral announcements
of them in the courtroom resounded with
eloquent indignation whenever a wrong needed righting.
He would rigorously attack the ideas of those with whom
he disagreed, but he bore no personal malice and never
spoke ill of anyone. The structure of his writings is
studied simplicity, but for those astute enough to delve
beyond, the vast foundation of the views he expressed is
MR. JUSTICE BLACK
revealed. To him the law was serious business, yet his
sparkle and mirth often defused the charged atmosphere
of oral argument. While he strove for firm and fixed
legal rules, he would overrule precedent and uproot established
practice without hesitation in order to fulfill his
primary duty to the Constitution. He was both talkative
and a good listener; intense, but relaxed; and, most of
all, gentle in manner but firm in holding to his beliefs
during the ebbs and flows of public opinion that marked
his 34 years on the bench.
It is perhaps inevitable that the future will see comparisons
made and similarities noted between Justice
Black and John Marshall or Holmes or Brandeis or Cardozo.
The attempt is worthy and intellectually fascinating,
but in the end it must fail. For Hugo Black was,
above all else, his own man. There have been few judges
whose writing had so many ideas brooding in the background.
He has left his legacy in more than one hundred
volumes of United States Reports and so long as men
seek to be true to themselves his light will remain to guide
the way.
May it please this Honorable Court: In the name of
the lawyers of this Nation, and particularly of the Bar of
this Court, I respectfully request that the resolution presented
to you in memory of the late Justice Hugo L.
Black be accepted by you, and that it, together with the
chronicle of these proceedings, be ordered kept for all
time in the records of this Court.
THE CHIEF JusTICE said:
Thank you, Mr. Acting Attorney General, for the
tribute of the Bar of the Supreme Court to our late
Brother, Hugo Black. Your motion will be granted.
If it is possible to add anything to the splendid tributes
to Hugo Black, in making the traditional response to your
presentation, it seems to me I can do this best by some
observations, not primarily on his stature as a judge, but
LIV MR. JUSTICE BLACK
rather to touch briefly on dimensions of the man as seen
by us and in terms of his personal qualities of a human
being.
We, who knew Hugo Black well, even though in varying
degrees as to the length of our association, can and
do agree heartily with all that you and the others have
said. The intimacy of the daily association of Justices
of the Court is such that, within the Court, each of us
acquires an insight and appreciation concerning a colleague
that may not be paralleled in any other kind of
association.
Even in the intimacy of a law firm each partner does
much of his work alone. In this Court we can only act
together, even \vhen we do not agree. To do our task,
we must consult on each step and stage, and almost daily,
as the decisions evolve.
You gentlemen of the Bar have depicted Hugo Black
as he appeared to you. chiefly as advocates see a Justice
on the bench, through his opinions, and perhaps through
an occasional speech. A law clerk has perhaps a more
intimate view but, at best, that is only a glimpse.
The tributes you have presented, along with countless
other tributes to Hugo Black over the past 20 years-and
with more to come-will become part of the fabric of the
large record of this uncommon man and part of the literature
of the law to which his life was devoted as an
advocate, as a legislator and as a judge.
There is always a risk of having our admiration for
uncommon men and women create an image that becomes,
in time, more legend than flesh and blood. Hugo
Black would not like that. He was surely an unusual
man, but he was very human. He valued respect, he
cherished friendship, but he would not care for sentimental
adulation.
He would not mind a dash of legend but he was so vital
in his humanity, so firm in his basic views, that he would
also want to be seen and remembered as his intimates saw
him; what we saw was a warm, responsive, responsible
MR. JUSTICE BLACK LV
person and a passionate advocate of his own deepfelt
convictions.
He made no apologies for having been a politician,
which he had been in the high sense of that word. Nor
did he make apologies for being an advocate and he surely
was that. Indeed we who shared the intimacy of the
Conference with him well know his powers of advocacy,
for even when they did not persuade, they shook the positions
of others.
But even at his most ardent and passionate, he was
always ready to listen and on occasion to change his
mind. His was a reasoning mind. Perhaps one of his
favorite words was "reasonable." I believe he ranked
"reasonable" with "fair" and "just." The combination
of those concepts-reasonable, fair, just-made him a
tolerant man who would always listen to others. I can
see him now when someone sought to make a point with
him: leaning back in his chair at the bench or in Conference,
or in his chambers--head cocked, fingertips
touching, his attention focused. Even with his passionate
belief in the First Amendment that earned him, with
some, the term "absolutist," he was careful to distinguish
conduct from speech, occasionally to the dismay of the
true absolutists.
Justice Douglas served with Hugo Black for more
than 30 years and he recalls the toughness and vigor and
alertness of Hugo Black's mind that was matched by his
physical alertness. This made him love the game of
tennis that he played until very recent times. Justice
Douglas describes Hugo Black as a fierce competitor,
whether in his days in the courtrooms in Alabama, or on
the Senate floor, or in the Conferences of the Court; he
saw no diminution of the depth of his convictions and
the skill and vigor of his advocacy over the years they sat
on the Court together. He describes Hugo Black as "a
tartar" and a man whose fervor led him to contend for
supporters of his point of view. This fierceness and fervor
as an advocate who could declaim, and even thunder,
MR. JUSTICE BLACK
for his position had another side that could be seen by
his colleagues almost as well in one year as in many
years of association.
This ,vas the man of the warm smile, the soft Southern
voice, the gentle manner. Over their long years together,
Justice Douglas saw him as a man whose friends could do
almost no wrong, or if they did, he would defend them or
explain them in an effort of mitigation. In short, he
describes Hugo Black as a man who was no "fair weather
friend" but a friend for all seasons. This quality made
him a friend to cherish, to consult, to spend happy hours
of comradeship with, with talk of campaigns fought long
ago, cases tried a half century past in Alabama, anecdotes
of the great figures of the stirring years he spent in the
Senate and of his early years on the Court.
Whatever the battles of the past, or struggles over issues
within the Court, Hugo Black carried no bitterness
or scars. If any tension arose, as it could in the heat of
debate with a passionate advocate, it washed away
quickly. As with all of us, he preferred to have others
agree with him, but he did more than tolerate disagreement,
he welcomed and respected it and listened to it.
On one occasion, Hugo Black and I talked for several
hours on a point that could move him to great eloquence.
He could see that I was not fully persuaded, and, as we
separated, that wonderful, warm smile flooded his countenance,
his eyes sparkled and he said something like this:
"Do you know something? You might be right
about that, so stick to your guns. I don't think you
are right, but it might turn out that you are."
This was not a pose, or a gesture. It came directly
from the well-springs of his nature. It was an Alabama
populist's 20th century version of Voltaire's famous dictum.
He was a confident man, sure of his own powers
and convictions, but there was a quality of humility that
could be seen in a very short time after coming under his
spell. He would listen as attentively to the newest Justice
as to the most senior.
MR. JUSTICE BLACK LVll
I found it interesting that Justice Brennan in 16 years
independently identified the same qualities that Justice
Douglas observed in Hugo Black in his association of
more than three decades, and they were the same qualities
that others of us could observe in the short span of a
few years.
Justice Brennan recalls one occasion when Hugo Black
was quietly but firmly insistent on having certain changes
made in one of Justice Brennan's opinions, during the
difficult May and June period when tension and pressure
are great and patience is in short supply. Justice
Brennan recalled that finally he spoke rather sharply and
pointedly over the phone to Justice Black generally about
the matter of finality at some point in the process of writing
an opinion. Soon after what Justice Brennan described
to me as his vigorous outburst, Justice Black
walked into his office and told him to leave the building-
to stay away, saying: "This place can become like
a pressure cooker and it can beat the strongest of men.
You should get out of here and forget it for a few days."
Justice Brennan said he accepted the advice.
On another occasion, Hugo Black and Justice Brennan
were in disagreement in a First Amendment case and a
vigorous exchange occurred over many weeks. When it
was over, Justice Black wrote, saying:
"Much as I disagree with you, I admire the way
you fought for your position."
Of the present court, Justice Blackmun is the most
recent member to serve with Hugo Black, serving one
year with him. He recalls Justice Black coming to his
chambers one day to discuss a dissent in which he was
joining Justice Blackmun. His comment was:
"That's the way to do it, Harry-strike for the
jugular, strike for the jugular."
Striking the jugular, as we know, does not necessarily
cause much pain, but it can be fatal. This was Hugo
Black, the advocate, speaking; for a dissenter is, by definiLVIII
MR. JUSTICE BLACK
tion, an advocate. His dissents were always powerful,
they always struck the jugular, and they were often
prophetic.
I hope I can be indulged some observations on the
intimate relationship I had with Hugo Black from the
time I came here three years ago.
I had known him slightly after I came to Washington
in 1953 and from arguing cases before the Court. When
I went on the Court of Appeals in 1956, one of his former
law clerks with whom I had worked in the Department
of Justice arranged for the three of us to have lunch together.
After that I saw him intermittently and a cordial
but not close relationship developed.
Sometimes when I would see him at Washington
parties, he would say, naming a particular case,
"I read your dissent. You may be right about
that, but even if you're not, stand by it. Dissents
keep the boys on their toes."
But when I came to this Court 3 years ago, he was
at once both warmly cordial and helpful in his welcome.
During that first summer I remained in Washington, as
he did, and saw him almost daily. As the senior Justice,
he was the logical member of the Court for me to consult
as I tried to adapt my experience on the Court of Appeals
to the work of this Court. We lunched together often
and I found myself not only consulting him on the steady
stream of chambers motions, but on a wide range of internal
matters of the Court's work.
As time went on during the 1969 Term, he occasionally
dropped in to see me, sometimes as he was leaving for
the day. He would vary between cautioning and scolding
me about taking on too much of the administrative
burdens of the federal judiciary while carrying on a full
load of Court work. Once he said:
"Chief, you've got to let up. Make them get
someone else to do that. Congress has no right to
give nonjudicial duties to a Justice of this Court."
.MR. JUSTICE BLACK LIX
Yet on many sensitive and difficult problems of the federal
systems, his counsel was most valuable to me. He
would remind me that Chief Justice Hughes had said:
"This job can kill a man if he is not careful."
As a Senator when Hughes was named to be Chief
Justice, Hugo Black opposed the nomination, spoke
against him, and voted against him in a bitter and longdrawn-
out confirmation battle. A few years later, he
was himself named to the Court in an atmosphere that
engendered controversy at the time. When he came to
the Court, Chief Justice Hughes greeted Black cordially
and was helpful in every way and never alluded to Black's
opposition and vote against him.
It was characteristic of Hugo Black to say, as he did
on several occasions:
"When Hughes was nominated I thought of him as
a big business Wall Street lawyer, not much interested
in the people. I was a Senator from a rural
state and it was the poor people and small farmers
who sent me here and he didn't seem like our kind
of man.
"But I was wrong. Hughes was a fine human being
and a fine justice, and a great Chief Justice, and
we became warm friends."
We know how Hugo Black loved good stories, a happy
evening with lawyers and judges. His table, which he
and Elizabeth presided over in my time, was a gourmet's
delight. I often teased him about his lack of interest in
wine, since the only wine he cared for was made from
scuppernong grapes that abound in the South. When I
discovered this I kept a supply of it on hand for him.
He, in turn, would both tease and caution some of the
rest· of us, quoting Chief Justice Hughes' dictum that
judicial work on the Supreme Court never killed any Justime,
but overeating did. vVhen we changed the lunch
hour from 30 to 60 minutes, he said he would "go along"
but he feared we would all eat too much.
LX MR. JUSTICE BLACK
One fairly recent incident discloses a side of Hugo Black
that the public could not see.
When we contemplated changing the shape of this
bench to make it easier for lawyers to hear the Justices,
and especially for Justices on the two end seats to hear
each other, we arranged to have a full-scale model of
the proposed bench made up in plywood on the same elevation
as we now sit. This model was placed in the
East Conference Room with a lectern in front and our
chairs in place. Then one day we all gathered to make
the final decision. As we sat at our places and discussed
the change, Justice Harlan, with the professional advocate's
point of view, said he wanted to see how the bench
would look to the lawyer. He went to the lectern and
engaged in a colloquy with those of us on the bench.
Finally, he said he believed it would be an improvement,
but then he added:
"There is just one thing I don't like about this."
We all waited, but we could begin to see a twinkle in the
Harlan eyes. Someone said, "What is it, John?" "The
trouble I see," said Justice Harlan, "is that the change
in shape gives an inordinate prominence and position to
the three Justices in the center section."
Hugo Black responded immediately, and the smile on
his face carried out the byplay:
"John, you're wrong-very wrong-it just seems
that way to you because of the distinction and quality
of the three men who sit here."
One of the most pleasant memories I have of our informal
hours were those last spring when, on occasion, the
Justices had lunch beside the fountain in one of the
courtyards. Since he loved his garden at home, he
seemed to respond to the courtyard setting, and more
than the usual number of stories came forth.
I never heard him speak ill of any man in any meanspirited
sense. Occasionally, when the news media would
MR. JUSTICE BLACK LXI
have stories about Justices or the opinions of the Court
that would bring annoyed comments from Justices, he
would say:
"Don't let it bother you. This has been going on
a long time. Those fellows must have something
to write about and when there isn't anything, they
have to think something up. Just forget about it."
At the risk of repetition, I would like to close by drawing
on what I stated on the opening day of the 1971 Term
when we had the sad duty of announcing that the Court
opened without Hugo Black for the first time in 34
years-a tenure that spanned that of one-third of all the
Chief Justices who presided here since the first session on
February 1, 1790.
In time, I believe, one thing will stand out above all
else in Hugo Black's work and his thinking. Throughout
his entire career, he never wavered in his unbounded faith
in the people and in the democratic political processes
of a free people under the American Constitution. He
loved this Court as an institution, he revered the Constitution,
he had enormous respect for the Presidency and
high regard for the Congress, but above all else, he believed
in the people. He had no doubt whatever as to
the ability of an informed and free people to determine
their own destinies.
\Ve will miss his wisdom, his comradeship, and the
radiant warmth of his rare spirit, but to use his own
words, "the Court will go on."
Mr. Attorney General, Mr. Solicitor General, on behalf
of the Court, I thank you for your presentation in memory
of our late Brother Hugo L. Black. We accept the
resolutions of the bar and we ask that you convey to
Mr. Louis Oberdorfer, chairman of the bar committee,
and all its members, our appreciation for their statements,
which will be made part of the records of this Court in
perpetuity.
TABLE OF CASES REPORTED
NOTE: All undesignated references herein to the United States
Code are to the 1970 edition.
Cases reported before page 901 are those decided with opinions
of the Court or decisions per curiam. Cases reported on page 901
et seq. are those in which orders were entered.
Page
AA Electric Co.; Labor Board v . . . . . . . . . . . . . . . . . . . . . . . . 117, 1033
Abarca-Espinosa v. United States........................ 930
Acarino v. Mishler. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956, 1049
Acting Attorney General; Capital Broadcasting Co. v....... 1000
Acting Attorney General; Long v......................... 1071
Acting Attorney General; National Assn. of Broadcasters v.. 1000
Acting Comm'r of Patents v. Benson ................... 915,.1061
Adams v. Georgia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Adams v. Illinois........................................ 278
Adams; Parsons v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Adams; Rogers v . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . 924
Adams v. United States.................................. 1072
Adams v. Williams. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 984, 1037
Addonizio v. United States ............................ 936, 1048
Aerojet-General Corp.; Graham v. . . . . . . . . . . . . . . . . . . . . . . . . 993
Aetna Casualty & Surety Co.; Weber v.................... 913
Affeldt; Whitcomb v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Agers v. Washington.......................... . .......... 927
Agron v. Illinois Bell Telephone Co. . . . . . . . . . . . . . . . . . . . . . 954
Agua Caliente Band of Indians v. Riverside County ...... 933, 1033
Aktiebolaget Flymo v. Cody. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
Alabama; Griffith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Alabama; McKinney v.................................. 1075
Alabama; Paris Bookstall v............................. 1075
Alabama; Young v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 976
Alabama Governor; Forbush v. . . . . . . . . . . . . . . . . . . . . . . . . . . 970
Alabama Secretary of State v. Hadnott. . . . . . . . . . . . . . . . . . . 1035
Alameda County v. California Welfare Rights Organization.. 913
Albrecht, v. Matthes ................. ,................... 1063
LXIII
LXIV TABLE OF CASES REPORTED
Page
Alcala v. Wyoming...................................... 997
Alexander v. Louisiana................................... 625
Alexander v. Minnesota.................................. 985
AlkP~ v. U.S. Board of Parole............................ 931
Allegheny County District Attorney; Oliver v. . . . . . . . . . . . . . 995
Allen v. Cardwell........................................ 991
Allen v. State Board of Education of North Carolina...... 920
Allen v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954
Allifid Foods; Teamsters v............................... 1041
Almenares; Wyman v................................... 944
Almota Farmers Elevator & Warehouse Co. v. United States.. 1039
Altimus v. United States................................. 975
Amato v. United States.................................. 933
Amato v. Wisconsin...................................... 981
Ambac Industries v. Froehlke... . . . . . . . . . . . . . . . . . . . . . . . . . 974
American Broadcasting Cos. v. Democratic Nat. Com...... 953
American Export Isbrandtsen Lines; Freedman v. . . . . . . . . . . 992
American Export Isbrandtsen Lines v. Sun Shipbldg. Co.... 920
American Export Isbrandtsen Lines; Wilkins v. . . . . . . . . . . . . 969
American National Safe Deposit Co.; .Jamieson v. . . . . . . . 990, 1076
American Veterans Committee; Neal v. . . . . . . . . . . . . . . . . . . . 926
American Waterways Operators: Askew v. . . . . . . . . . . . . . . . . . 1063
American Water Works Service Co.; Gould v ............ 920, 1048
Amos v. Hadnott....................................... 1035
Amphy v. Louisiana..................................... 1074
Anderson; California v . .............. . ............... 983, 1062
Anderson v. Calvert...................................... 1035
Anderson v. Colorado.................................... 1042
Anderson v. Maryland.................................... 1050
Anderson; McConnell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Anderson v. United States ............................. 918, 927
Andrade v. Texas........................................ 1067
Andrews; Cody v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Angelini v. United States................................ 964
Anstead v. United States................................. 1017
Archer v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Archie v. United States...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Argersinger v. Hamlin ................................. 912,951
Arizona ; Bible v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 994
Arizona Corp. Comm'n; Native Am. Church of Navajoland v. 901
Arizona State Dept. of Public Welfare v. Dept. of HEW... 919
Arizona Tax Comm'n; McClanahan v.................... 913
Arkansas; Swanson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 996
TABLE OF CASES REPORTED
Armour & Co. v. Packinghouse Workers ................. .
Armstead v. Virginia .................................... .
Arneson Products, Inc. v. Blumenfeld ..................... .
Arnold v. United States ................................... .
Arraj ; 11cCray v . ..................................... .
Arriagada v. United States ............................... .
LXV
Page
955
1066
1017
1063
952
1018
Ashland County Court of Common Pleas; Featheringham v.. 986
Askew v. American Waterways Operators................... 1063
Association. For labor union, see name of trade.
Association of the Bar of New York City; Epstein v . ..... 952, 1046
Atlas Corp.; De Villiers v ............................. 933, 1033
A-T-0, Inc.; Sperry Rand Corp. v........................ 1017
Attorney General of Indiana v. Hartke. . . . . . . . . . . . . . . . . . . . 15
Attorney General of Oklahoma v. Okla. ex rel. Wilson. . . . . . 918
Attorney General of Virginia; Manard v. . . . . . . . . . . . . . . . . . . 982
Augello v. United States.................................. 1070
Austin v. Berry Bros. Oil Field Service.................... 919
Austin v. United States.................................. 924
Automatic Sprinkler Corp.; Sperry Rand Corp. v........... 1017
Avery v. United States.................................. 930
A. W. Thompson, Inc. v. Labor Board...................... 1065
Baca v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Baird; Eisenstadt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 438
Baker; Pennsylvania v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Baker v. United States.................................. 974
Baltimore City Criminal Court; Murel v . ............... 912, 951
Bamberger v. United States............................... 1043
Banco Popular de Puerto Rico v. Las Colinas, Inc........... 1067
Barbara v. Johnson...................................... 922
Barbizon Electric Co. v. New York City................... 975
Barker v. Wingo ...................................... 914, 985
Barner v. North Carolina................................. 1040
Barnes; Graves v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1201
Barrett v. Shapiro. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Barrow v. Bounds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Bartlett v. Hollopeter. . . . . . . . . . . . . . . . . . . . . . . . . . . . 995
Bartlett v. United States................................ 932
Baskin v. United States ............................... 927, 991
Bastida; Heyd v. . . . .. . . . . . . . . . .. . . . .. .. . . . . .. . . . . . . . . .. 1019
Basye; United States v................................... 1039
Bateson; Wright v...................................... 930
Battle v. Moseley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Baxter v. Davis......................................... 999
LXVI TABLE OF CASES REPORTED
Page
Bays v. United States ................................. 957, 1076
BBF Liquidating, Inc. v. United States.................... 1065
Beasley v. North Carolina................................ 1017
Beasley v. United States ............................... 952, 1049
Beaty v. Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 955
Becker v. United States ............................... 932, 1049
Beens; Si}..iy-Seventh Minnesota State Senate v. . . . . . . . . . . . 985
Bell v. United States..................................... 929
Benjamin Franklin University; Diggs v.................... 1051
Bennett v. South Carolina............................... 924
Benson; Gidmark v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1062
Benson; Gottschalk v . ................................ 915, 1061
Benson v. Rich......................................... 978
Berberian v. Rhode Island................................ 1036
Berg v. Schmidt... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978
Berry Bros. Oil Field Service; Austin v................... 919
Bethea v. California...................................... 1042
Beto; Boyd v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
Beto; Carroll v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Beto; Cruz v ................ ......................... 319,998
Beto; Gonzales v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Beto; Jimenez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 910
Beto; Loper v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 473
Beto; Rener v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051
Beto; Ruiz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Beto; Thorbus v. ....................................... 912
Bettker v. United States................................. 975
Biancone v. United States............................... 936
Bible v. Arizona......................................... 994
Biggers; Neil v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954
Billings v. Maryland..................................... 1040
Bivens v. United States................................. 964
Bixler v. Illinois. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Black; Valdez v........................................ 963
Blackburn v. Henderson................................. 1063
Blair; United States Steel Corp. v. . . . . . . . . . .. .. . . . . . . . . . . 948
Blankenship v. Oklahoma ex rel. Wilson.................... 918
Blatt. v. Local Board No. 116............................. 1014
Blumenfeld; Arneson Products, Inc. v. . . . . . . . . . . . . . . . . . . . . IOI 7
Blumstein; Dunn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
Board of Appeals and Review; Johnson v. . . . . . . . . . . . . . . . . . 955
Board of Comm'rs of Oak Brook Park; Thompson v........ 920
Board of Education of Daviess County; ,Tones v ........... 974
TABLE OF CASES REPORTED Lxvn
Pe.ge
Board of Ed. of Little Rock School Dist. v. Clark.......... 936
Board of Ed. of San Francisco School Dist.; Strickland v. . . . 1005
Board of Election Comm'rs of Chicago; Fitzpatrick v... . . . . 1036
Board of Elections for District of Columbia v. Lester. . . . . . . . 949
Board of Elections for District, of Columbia; Lester v. . . . . . . 1036
Board of Review, Ohio Employment Serv.; Philada. Fund v.. 970
Board of Supervisors of Riverside County; Bogacki v. . . . . . . 1030
Boeing Co.; Maurice A. Gar bell, Inc. v. . . . . . . . . . . . . . . . . . . . 990
Boersen; Huffman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
Bogacki v. Board of Supervisors of Riverside County. . . . . . . 1030
Bolton v. Kropp........................................ 1068
Bookwalter; M. F. A. Central Coop. v.................... 1045
Boring v. ::\fississippi. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Boswell v. California. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . 1072
Boulware v. New York.... . ............................. 995
Bounds; Barrow v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Bower; Columbus v..................................... 917
Bowman v. United States................................ 99.5
Boyd v. Beto............................... . ........... 957
Boyd v. Dutton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Boyd v. Gaffney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985
Boyd v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Boyd v. United States........ . .......................... 992
Boyd; Woodsum v...................................... 912
Bradford v. Thompson... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 955
Bradley Lumber Co. v. Sharpe........................... . 919
Bradshaw v. Laird...................................... 954
Brantley; Goznelli v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Braver v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
Brayton v. Hollopeter....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Breaux v. United States. . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. 1072
Breedlove v. Texas...................................... 1074
Brewer; Morrissey v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
Brewer v. New Jersey....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Bridges v. Davis... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Brierley; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
Brierley; Osborn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Broadview Chemical Corp.; Loctite Corp. v..... . ...... . .. 920
Brockstein v. Nationwide Mutual Insurance Co......... . .. 921
Bronson v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 994
Bronston v. United States.... . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
Brooks v. United States...... . .......................... 930
Brooks; Wickline v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 981
LXVIII TABLE OF CASES REPORTED
Page
Brotherhood. For labor union, see name of trade.
Broughton; Lucas v..................................... 1071
Brown; Garrison v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985
Brown v. Michigan Dept. of Military Affairs. . . . . . . . . . . . . . . . 990
Brown v. Ohio.......................................... 931
Brown v. Ross. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Brown; Sha.rrow v .................................... 968, 1076
Brown v. Tennessee...................................... 997
Brown v. United States ................................ 925, 978
Brunges v. United States................................. 993
Brunson; Shelton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983
Bruse.a v. State Board of Education. . . . . . . . . . . . . . . . . . . . . . 1050
Bryan v. Kurcevich. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Bryant; Mine Workers v................................. 970
Bryant v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 992
Buchanan v. Texas...................................... 930
Buchkoe; Schroeder v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Buchkoe; Sullivan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978
Buckley v. Gibney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Bufford; Virginia State Board of Elections v. . . . . . . . . . . . . . . 1035
Bullock v. Carter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Bullock v. United States................................. 931
Bullock v. Weiser. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912
Burg; Canniffe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Burkhalter v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 992
Burlington Northern, Inc.; Quincy College & Seminary v. . . . 906
Burnett; Hood v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Burns v. Columbia Pictures International Corp............. 991
Burns v. Swenson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 969
Burroughs v. United States....... . . . . . . . . . . . . . . . . . . . . . . . 1071
Burton v. United States...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991
Busch v. Cinema Classics, Ltd............................ 983
Busenhart; Schroeder v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Business Execs. for Vietnam Peace; Fed. Com. Comm'n v.... 953
Business Execs. for Vietnam Peace; Post-Newswk. Stations v. 953
Bustamont-e; Schneckloth v . . . . . . . . . . . . . . . . . . . . . . . . . . . 953, 1062
Butz; Sunny Hill Farms Dairy Co. v. . . . . . . . . . . . . . . . . . . . 917
Byland v. Craven............................... . ....... 1070
Gabbier v. Virginia...................................... 1073
Cacavas v. General Motors Corp......................... 993
Cady; Humphrey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
Cady; Monsour v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Cady; Rodriquez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
TABLE OF CASES REPORTED LXIX
Page
Cagle v. United States................................... 976
Cahn; Lecci v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Calabro v. United States................................. 928
Caldwell; National Brewing Co. v........................ 916
Calhoun v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
California. v. Anderson ................................ 983, 1062
California; Bethea v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
California; Boswell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
California; Cardenas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
California; Chapman v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
California; Dollar v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
California; England v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
California; Escobar v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 987
California; Goodart v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 997
California; Guile v ................................... 927, 1068
California; Hamilton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978
California v. Krivda. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
California; Liepman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963, 1048
California; Lustman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
California; Mason v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
California; Mattison v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
California; Mitchell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991
California; Oller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
California; Reed v....................................... 991
California; Rohm v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 987
California; Roy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 976
California; San Diego Unified School District v. . . . . . . . . . . . . 1016
California,; Smiley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
California; Spiller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
California; Wade v...................................... 925
California; Waggoner v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
California; Weddel v.................................... 1067
California.; Wehinger v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
California Adult Authority; Cantrell v. . . . . . . . . . . . . . . . . . . . 923
California Governor; Magee v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
California Shipping Co, v. Pacific Far East Line........... 1066
California Superior Court; Gerardi v . ................. 914, 1049
California Superior Court; Graham v. . . . . . . . . . . . . . . . . . . . . . 993
California Welfare Rights Organization; Alameda County v.. 913
Calloway v. Leeke...................................... 923
Calvert; Anderson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
Camara v. United Sta.tcs................................ 1074
Camm v. Pennsylvania. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
LXX TABLE OF CASES REPORTED
Page
Canniffe v. Burg........................................ 1034
Cantrell v. California Adult Authority..... . . . . . . . . . . . . . . . 923
Capello v. Gates........................................ 954
Capital Broadcasting Co. v. Acting Attorney General........ 1000
Caplin v. Marine Midland Grace Trust Co. of New York.... 950
Capps v. United States................................... 1070
Captayannis "S," The; Wilbur-Ellis Co. v.................. 923
Caraballo v. United States........ . . . . . . . . . . . . . . . . . . . . . . . . 987
Cardenas v. California................................... 1040
Cardwell; Allen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991
Carleson v. Remillard ................................. 951, 1061
Carlough v. Richardson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 969
Carlson v. United States................................. 1044
Carpenter v. Sterrett.................................... 971
Carrasco-Favela v. Immigration and Naturalization Service.. 1030
Carrier Mfg. Co.; Wahl v................................ 990
Carroll v. Beto. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Carter; Bullock v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Carter v. Court of Criminal Appeals of Texas.............. 970
Carter v. Like. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Carter v. Stanton....................................... 669
Carter v. United States ............................... 929, 932
Cartrade, Inc. v. Ford Dealers Advertising Assn............ 997
Casella v. United States................................. 929
Castaldi v. United States................................. 992
Castle; Dixon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Castro v. Yeager........................................ 1019
C. D. Construction Corp. v. Commissioner................. 988
Cecire v. Stewart........ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Centex-Winston Corp.; Edward Hines Lumber Co. v...... 921
Central Hardware Co. v. Labor Board .................. 1037, 1061
Century Arms, Inc. v. Connally........................... 1065
Cerone v. United States................................. 964
Chambers v. Mississippi ............................... 987, 1205
Chambers; Paige v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 986
Chambers; Rojas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Chambers v. United States................................ 1071
Chandler v. O'Bryan .................................. 964, 1049
Chapman v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Charleston v. Wohlgemuth............................... 970
Chason v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Chicago v. Federal Power Comm'n......................... 1074
Chicago Board of Election Comm'rs; Fitzpatrick v. . . . . . . . . . 1036
Chicago Mercantile Exchange; Ricci v ...... ............ 953, 984
TABLE OF CASES REPORTED LXXI
Page
Chicken Delight, Inc. v. Siegel. . . . . . . . . . . . . . . . . . . . . . . . . . . 955
Chicken Delight, Inc.; Siegel v........................... 955
Chicquelo v. United States............................... 957
Chief Judge, U.S. Court of Appeals; Albrecht v............ 1063
Chief Judge, U.S. Court of Appeals; Garrison v............ 985
Chief Judge, U. S. Court of Appeals; Paige v.............. 986
Chief Judge, U.S. Court of Appeals; Rojas v............... 1063
Chief Judge, U. S. District Court; Acarino v . ............ 956, 1049
Chief Judge, U. S. District Court; Lemelson v............ 972
Chief Justice, Supreme Court of Nevada; Kadans v........ 948
Chief Justice, Supreme Court of Washington; DeBorde v.... 986
Christian v. New York................................... 993
Church; Phoenix Newspapers, Inc. v...................... 908
Church Avenue Poultry v. Nationwide Mutual Insurance Co. 921
Cincinnati Gas & Electric Co.; Tedesco v................. 923
Cinema Classics,. Ltd.; Busch v........................... 983
Cinema Classics, Ltd.; Davis v........................... 983
Circuit Court of Warren County; Wood v.................. 1044
C. Itoh & Co. (America); Cook Industries v............... 921
City. See also name of city.
City-Parish Government of East Baton Rouge; Miles v. . . . 1066
City Solicitor of Philadelphia; Hunter v. . . . . . . . . . . . . . . . . . . 926
Civil Service Comm'n of Radnor Township; Fitzgerald v. . 929
Claiborne Hardware Co.; Henry v........................ 1019
Clark; Board of Education of Little Rock School District v. . 936
Clark; Wainman v....... .. . . . . . . . ... . . . .. . .. . . . . . . . . . . . 923
Clayton v. United States....... . . . . . . . . . . . . . . . . . . . . . . . . . . 975
Cleaves v. Pennsylvania.................................. 973
Cleveland; Executive Jet Aviation v....................... 915
Cleveland v. Illinois Bell Telephone Co. . . . . . . . . . . . . . . . . . . . 954
Close v. United States.................................... 1068
Cloud v. Deitz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
Cocanower v. Marston.................................... 1036
Cochran v. Costill........................................ 1065
Cody; Aktiebolaget Flymo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
Cody v. Andrews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Cohen v. United States ................................ 926,954
Cohn v. United States................................... 975
Coiner; Oskins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Colabella v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Cole v. Richardson."..................................... 676
Cole v. United States .................................. 927,931
Coleman v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917
Coley v. United States.................................. 933
LXXII TABLE OF CASES REPORTED
Page
Collins; Kadans v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
Collins v. Michigan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991
Colombo v. New York................................... 9
Colorado; Anderson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Colorado River Water Conserv. Dist. v. Rocky Mt. Power Co.. 996
Colten v. Kentucky. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913
Columbia Broadcasting System v. Democratic Nat. Com.... 953
Columbia Pictures International Corp.; Burns v. . . . . . . . . . . . 991
Columbus v. Bower..................................... 917
Commissioner; C. D. Construction Corp. v... .............. 988
Commissioner v. First Security Bank of Utah, N. A. . . . . . . . . 394
Commissioner; Kovtun v............ ........... ......... 1016
Commissioner; Regency Realty v. . . . . . . . . . . . . . . . . . . . . . . . . . 1065
Commissioner; Roberts v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
Commissioner; University Hill Foundation v. . . . . . . . . . . . . . 96,5
Commissioner of Bureau of Revenue; Evco v ............ 953, 1037
Commissioner of Internal Revenue. See Commissioner.
Commissioner of Social Services of New York v. Almenares .. .
Commissioner of Transportation; Trap Rock Industries v . .. .
Commissioner of Welfare of Connecticut; Roberts v . ....... .
Commonwealth. See name of Commonwealth.
Comptroller of Public Accounts of Texas; Anderson v . ..... .
Conde Nast Publications; Rawls v ....................... .
Connally; Century Arms, Inc. v . ......................... .
Connecticut Comm'r of Welfare; Roberts v ................ .
Connell; Dow v . ....................................... .
Conrad v. Judson ....................................... .
Continental Oil Co.; Insurance Co. of North America v ... .
Cook County Clerk v. Shapiro .......................... .
Cooke v. United States . . ...................... ......... .
Cook Industries v. C. Itoh & Co. (America) ............. .
Corrections Commissioner. See name of commissioner.
Cortina v. United States ................................ .
Cortright v. Froehlke . ... ...................... ........ .
Cosco v. Meacham ............. . ....................... .
Costill; Cochran v . .........................•............
Cotter; Puglia v . ....................................... .
Couch v. Missouri-Kansas-Texas R. Co ................... .
Couch v. United States .................................. .
County. See name of county.
Court of Appeals. See U. S. Court of Appeals.
944
1065
1037
1035
969
1065
1037
921
1041
934
1039
977
921
964
965
991
1065
1073
948
1038
Court of Criminal Appeals of Texas; Carter v............. 970
Cox v. United States.................................... 932
Craven; Byland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Craven; Weddel v....................................... 1067
TABLE OF CASES REPORTED LXXIII
Page
Creasman v. First Federal Savings & Loan Assn............ 977
C!rim v. Indiana. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
Cronan v. United States.. . ......... . ..... . .............. 1017
Cronvich; Louisiana Materials Co. v..... . ................ 916
Crosby v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917
Crosswhite v. Swen~on........... .. .................. . .... 1042
Crouse; Jones v .. .... . .......... . ...... . ......... . ...... 1018
Crow v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 999
Cruz v. Beto ... . ........ . . . . . ... . .. . .............. . .. 319,998
Culado 1'. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 911
Cunningham v. Wingo ................................. 948, 999
D., Richard; Linda R. 8. v............................... 1064
DaCosta v. Laird. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979
Dade County School Board; Love v. . . . . . . . . . . . . . . . . . . . . . . . 1064
Dadurian v. United States................................ 1044
Dalton; Meister v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Daniel v. United States.................................. 994
Dardar; Loui!S iana State Dept. of Highways v ........... 918, 1048
Daughdrill v. Diamond M. Drilling Co.......... . ......... 997
Da\'idson; Parisi v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Daviess County Board of Education; Jone~ v. . . . . . . . . . . . . . 975
Davis; BaxtRr v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 999
Davis; Bridges 1•. . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . • . . . . . . . 919
Davis v. Cinema Class1rs, Ltd............................ 983
Davis v. Kohn..... . . .. ..... . ............................ 1034
Davis; Robinson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979
Davis v. United States ............................ 933,976, 1046
Dawson Chemical Co.; Monsanto Co. v................... 974
D. C. Federation of Civic Assns.; Volpe v.................. 1030
Dean v. Moore....................... . ........ . ......... 1071
DeBordr v. Hamilton .................... . . . ......... . ... 986
Deegan; Lathan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Deepsouth Parking Co. v. Laitram Corp... . . . . . . . . . . . . . . . . 984
Deitz; Cloud v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
Delta Airlines; Evansville-Va ndrrbur(l:h Airport Authority v. . 701
Drlta Development Co. v. l'nited States.. . . . . . . . . . . . . . . . . . 97-1
Dm10rratic National Com.; American Broadcasting Cos. v.. 953
D('mocrntir :--1ational Com.; Columbia Broadcasting Sy~tem v. 953
Democratic Party of the U.S.; Marks v......... . .... . .... 922
Dempsey; Gipe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 900
Denman v . Scannell........ . ... . ..... .. ........ .. ... .. ... 994
Dennis; John~n 1•. . . . . . . . . . . . • . • • • . . . . • . . . . . . • . • . . . . • . • Q21
Dennis v. MrCrarken. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Denton v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
LXXIV TABLE OF CASES REPORTED
Page
Department of Corrections of California; Hinnington v. . . . . . 997
Department of HEW; Arizona Dept. of Public Welfare v... 919
Department of Pub. Health & Welfare of Mo.; Employees v.. 1016
Department of Pub. Welfare of Indiana; Carpenter v....... 971
Department of Social Welfare Director v. Remillard........ 951
Department of Transportation; Evans v.................. 918
Department of Water & Power of Los Angeles; Johnson v... 1072
Desert Outdoor Advertising v. Riverside County... . . . . . . . 916
Detroit; Detroit Police Officers Assn. v. . . . . . . . . . . . . . . . . . . . 950
Detroit Police Officers Assn. v. Detroit. . . . . . . . . . . . . . . . . . . . 950
Deutsch Co., Electronic Components v. Labor Board ..... 988, 1076
Deutsch Co., Metal Components v. Labor Board ......... 988, 1076
DeVilJiers v. Atlas Corp ............................... 933, 1033
D. H. Overmyer Co. of Ohio v. Frick Co.................. 174
Diamond; Homart Development Co. v. . . . . . . . . . . . . . . . . . . . . 981
Diamond M. Drilling Co.; Daughdrill v. . . . . . . . . . . . . . . . . . . . 997
Diggs v. Benjamin Franklin University..................... 1051
Diggs v. Dunne ....................................... 925, 1076
Dill; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
DiMaggio v. Prudential Savings & Loan Assn.............. 991
Diorio v. United States.................................. 955
Director, Dept. of Social Welfare v. Remillard. . . . . . . . . . . . . . 1061
Director, Local Govt. Affairs of Ill. v. Lake Shore Co. . . . . . . . 1039
Director, Marion County Dept. of Public Welfare; Carter v.. 669
Director, Missouri Division of Welfare v. Like. . . . . . . . . . . . . . 1045
Director of Dept. of Revenue; United Air Lines v........... 986
Director of Immigration. See Immigration Director.
Director of Internal Revenue. See Commissioner; District
Director of Internal Revenue.
Director of penal or correctional institution. See name of
director.
Director of Revenue of Illinois; Heyman v................. 1075
Director of Revenue of Illinois; Ka witt v. . . . . . . . . . . . . . . . . . 907
Director of Taxation of Hawaii; Hawaiian Land Co. v ... 907, 1048
DiRosa v. United States................................. 928
District Attorney of Allegheny County; Oliver v. . . . . . . . . . . 995
District Attorney of Nassau County; Lecci v. . . . . . . . . . . . . . . 1073
District Court. See U. S. District Court.
District Director of Immigration. See Immigration Director.
District Director of Internal Rev.; M. F. A. Central Coop. v.. 1045
District Judge. See U. S. District Judge.
District of Columbia; Riley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
District of Columbia Board of Elections; Lester v. . . . . . . . . . . 1036
Dixon v. Castle. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
TABLE OF CASES REPORTED
Doe v. United States .................................... .
Dollar v. California ..................................... .
Donovan v. Keppel. .................................... .
Dougherty v. United States .............................. .
Dow v. Connell ........................................ .
Dowell v. Johnson ...................................... .
Downing; Gay v . ....................................... .
Drakeford v. United States .............................. .
Driscoll v. United States ................................ .
Dubelko v. Dubelko ..................................... .
LXXV
Page
984
1018
1034
1070
921
1018
1063
1018
920
990
Duggan; Oliver v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 995
Dun & Bradstreet, Inc. v. Kansas Electric Supply Co....... 1026
Duncan v. Tennessee.................................... 127
DunLeavay v. Rockefeller Center, Inc .................. 969, 1044
Dunn v. Blumstein·. .. . .. . .. . .. . . . . . . . .. . . . . . . . . . . .. . . . . . 330
Dunne; Diggs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925, 1076
Dunnings v. United States................................ 991
Dutton; Boyd v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I
Earles v. Ohio.......................................... 930
East Baton Rouge City-Parish Government; Miles v... . . . 1066
East Orange Housing Authority; Leff v. . . . . . . . . . . . . . . . . . . . 1064
Edward Hines Lumber Co. v. Centex-Winston Corp........ 921
Edwards v. Fishman.................................... 929
Egan; United States v................................... 984
Eisen v. Silver..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 976
Eisenstadt v. Baird. . . . .. . . . . .. . .. .. . . .. . . . .. . . .. . . . . . . . . 438
Ellis v. Powers......................... ...... .. ..... .... 10i5
Ellsworth; Olsen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
El Paso Natural Gas Co.; Utah Public Service Comm'n v... 1061
F.mhry v. Equitable Life Assurance Society. . . . . . . . . . . . . . . . 1041
Fmerson Electric Co. ; Reliance Electric Co. v. . . . . . . . . . . . . 969
Emery Air Freight Corp. v. Teamsters. . . . . . . . . . . . . . . . . . . . 1066
'Employees v. Dept. of Public Health & Welfare of Mo. . . . . . 1016
England v. California. .. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 933
Enlow v. Lash ....................................... 952. 1076
Enresco, Inc. v. Valmont Industries, Inc.................. 922
Environmental Protection Agency v. Mink................. 974
Epstein v. Assn. of the Bar of New York City. . . . . . . . . . . 952, 1046
Equitable Life Assurance Society; Embry v. . . . . . . . . . . . . . . 1041
Erlenbaugh v. United States.............................. 973
Escobar v. California.................................... 987
E.~~ex County Welfare Board; Philpott v... ....... . . . . . . . . . 913
Evans v. Department of Transportation. . . . . . . . . . . . . . . . . . 918
Evans v. Evans... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
LXXVI TABLE OF CASES REPORTED
Page
Evans v. Maryland...................................... 1068
Evans v. United States.................................. 1045
Evansville-Vanderburgh Airport Authority v. Delta Airlines.. 707
Evco v. Jones ........................................ 953, 1037
Evco Instructional Designs v. Jones .................... 953, 1037
Evers; State Board of Election Comm'rs v. . . . . . . . . . . . . . . . . 1001
Evins v. Slayton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Executive Jet Aviation v. Cleveland....................... 915
Exer-Genie, Inc. v. McDonald............................. 1075
Eyman; Hitchcock v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985
Eyman; Meredith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Eyma.n; Moses v. . . . . . . . . . .. . . .. . .. . . . . . . . . . . . . . . .. . . . . . 1042
Eyman; Stuard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Fackelman v. United States.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 992
Fair v. Wiggins......................................... 971
Fairman v. United States................................ 1032
Falstaff Brewing Corp.; United States v. . .. . . . . . . . . . . . . . . . 952
Family Publications Service; Mourning v ............... 987, 1062
Farinas v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Farmer v. Kropp....................................... 956
Farries v. Parker....................................... 930
Faulkner v. United States................................ 926
Favro v. Washington.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Featheringham v. Ashland County Court of Common Pleas.. 986
Federal Aviation Administration; Taxay v................. 1073
Federal Com. Comm'n v. Bus. Execs. for Vietnam Peace..... 953
Federal Com. Comm'n; WHDH, Inc. v. . . . . . . . . . . . . . . . . . . . 982
Federal Labor Relations Council; Wolkomir v.............. 920
Federal Power Comm'n; Chicago v. . . . . . . . . . . . . . . . . . . . . . . 107 4
Federal Power Comm'n v. Florida Power & Light Co........ 948
Federal Power Comm'n v. La. Power & Light .. 973, 1015, 1038, 1062
Federal Power Comm'n; Municipal Light Bd. of Reading v.. 989
Federal Trade Comm'n v. Sperry & Hutchinson Co........ 233
Feggett v. United States............................. . ... 992
Fein v. Selective Service System Local Board No. 7. . . . . . . . . 365
Feinlowitz v. New York.................................. 963
Felan v. United States................................... 948
Feltman v. United States................................. 996
Fentress v. Illinois...................................... 1044
Fentress v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Ferenc v. Johnson....................................... 994
Ferguson v. United States................................ 934
Ferguson v. Virginia... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
Ferguson v. Williams.................................... ll)36
TABLE OF CASES REPORTED
Ferrara v. United States ................................. .
Fershtman v. Schectman ............................... .
Feurtado v. Florida ....... . ............................ .
Field; Nidiver v . ...................................... .
Field; Scott v . ..•......•....•..........................
Finister v. \Vashington .................................. .
First District Court of Appeals; Freeman v . .............. .
First Federal Savings & Loan Assn.; Creasman v ......... .
First National Ban corporation; United States v .. ......... .
First Security Bank of Utah, N. A.; Commissioner v ....... .
Fischetti v. United States .............................. . .
LXXVII
Page
1032
1066
981
1063
925
927
1073
977
915
394
1016
Fishman; Ed wards v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Fisons Ltd. v. United States.............................. 1041
Fitzgerald v. Civil Service Comm'n of Radnor Township.. . . 929
Fitzpa.trick v. Board of Election Comm'rs of Chicago. . . . . . . 1036
527 Madison Avenue Co.; Stuhl v. . . . . . . . . . . . . . . . . . . . . . . . . 989
Flair Builders; Operating Engineers v. . . . . . . . . . . . . . . . . . . . 972
Flake; Freeman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Florida; Feurtado v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 981
Florida; Glover v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Florida; Hooks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Florida; Monger v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958
Florida; Schneble v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427
Florida; Smith v . .................................... 172, 991
Florida; United States v.................................. 984
Florida Power & Light Co.; Federal Power Comm'n v. . . . . . 948
Florida Secretary of State; Teitelbaum v ................ 986, 1076
Fluor Western, Inc. v. G & H Offshore Towing Co........ 922
Forbush v. Wallace...................................... 970
Ford Dealers Advertising Assn.; Cartrade, Inc. v. . . . . . . . . . . 997
Ford Motor Co. v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . 562
Ford Motor Co. v. W. F. Holt & Sons, Inc..... . ........... 1067
Foreman v. New Jersey.................................. 995
Foreman; Ray v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Foster v. Mancusi. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 964
Fountain v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Fraser & .Johnston Co. v. ::VIachinists & Arrospace Workers. . 950
Freedman v. American Export Isbrandtsen Lines. . . . . . . . . . . 992
Freeman v. First District Court of Appeals................. 1073
Freeman v. Flake....................................... 1032
Freeman v. New Jersey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 992
Freeman v. Virginia....................................... 919
Frick Co.; D. H. Overmyer Co. of Ohio v................. 174
Froehlke; Ambac Industries v. .. . . . . . . . . . .. . . . . . . . . . . . . . . 97 4
LXXVIII TABLE OF CASES REPORTED
Page
Froehlke; Cortright v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Froehlke; Pace Co. v.................................... 974
Fully v. United States.................................... 1070
Furman v. Georgia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912
Gaffney; Boyd v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985
Gaffney; Rodgers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Gafford v. Warden....................................... 1019
Gaglie v. U. S. District Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Gaines v. United States................................. 927
Galdeira v. Richardson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
Galveston; Rorie v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 988
Galveston; Strachan Shipping Co. v. . . . . . . . . . . . . . . . . . . . . . . 988
Galveston City Co. v. United States.... . .................. 9:16
Garbell, Inc. v. Hauk.................................... 990
Garcia-Guillern v. United States.... . . . . . . . . . . . . . . . . . . . . . . . 989
Garren v. Winston-Salem. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Garrett Freightlines v. United States...................... 1035
Garrison v. Brown. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985
Gas Light Co. of Columbus v. Georgia Power Co............ 969
Gates; Capello v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954
Gay v. Downing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Gelbard v. United States................................. 984
General Electric Credit Corp.; Grubbs v . . . . . . . . . . . . . . . . . . . 699
General Motors Corp.; Caca vas v. . . . . . . . . . . . . . . . . . . . . . . . . 993
General Motors Corp. v. Jenkins......................... 922
General Motors Corp.; Washington v. . . . . . . . . . . . . . . . . . . . . . 1015
Generes; United States v ............................... 93, 1033
George v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Georgia; Adams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Georgia; Furman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912
Georgia.; Hunt v. .. . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . 1048
Georgia; Jackson v...................................... 912
Georgia; Morris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1050
Georgia; Neal v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
Georgia; Register v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Georgia Power Co.; Gas Light Co. of Columbus v. . . . . . . . . . 969
Georgia State Board of Bar Examiners; Huber v. . . . . . . . . . . . 993
Gerardi v. Superior Court of California ................ 914, 1049
Gerber, In re............................................ 1037
Gevyn Construction Corp.; Middlesex County v. . . . . . . . . . . . 955
G & H Offshore Towing Co.; Fluor Western, Inc. v...... 922
Giacalone v. Lucas...................................... 922
Gibbs v. Yeager. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 993
Gibney; Buckley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
TABLE OF CASES REPORTED
Gibson v. U. S. District Court. .......................... .
Giddings & Lewis, Inc.; Kearney & Trecker Corp. v . ...... .
Gidmark v. Benson .............................. .
Giglio v. United States .................................. .
Gilligan v. Sweetenham ................................. .
Giordano v. Stubbs ..................................... .
Gipe v. Dempsey ....................................... .
Glaxo Group Ltd.; United States v ................... . .. .
Glover v. Florida ....................................... .
Gonzales v. Beto ....................................... .
Goodart v. California ................................... .
LXXIX
Page
1063
1066
1062
150
949
908
990
914
1067
1052
997
Gooding v. Wilson....................................... 518
Goodman v. United States................................ 993
Gottschalk v. Benson ................................. 915. 1061
Gough Industries v. Rothman................. . .......... 916
Gould v. Ameriean Water Works Service Co ............ 920, 1048
Governor. See name of State.
Goznelli v. Brantley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Grace; Tate v.......................................... 1069
Graham v. Superior Court of California.................... 993
Granite State Joint Ed., Textile Workers; Labor Board v.... 987
Grausam v. Murphey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 981
Gravel v. United States ...................... 916, 972, 1038, 1062
Gravel; United States v .................... 916,972, 1038, 1062
Graves v. Barnes........................................ 1201
Gray v. United States................................... 930
Great Da.ne Trailers v. Labor Board....................... 1041
Great Fidelity Investment Co. v. Martin ................ 955,. 1049
Green v. Laird.......................................... 993
Green v. Missouri. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Green v. Slayton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 976
Green v. United States ................................. 976,991
Green berg v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 988
Griffith v. Alabama...................................... 1042
Grindstaff v. Warden.................................... 956
Groob v. United States................................... 1016
Gross v. Walsh... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917
Grubbs v. General Electric Credit Corp. . . . . . . . . . . . . . . . . . . . 699
Grubbs v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Grubbs Tire & Appliance v. General Electric Credit Corp... 699
Guile v. California ................................... 927, 1068
Hadnott; Amos v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
Hagelberger v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Hagler v. Richardson. . . . . . . . . . . . . . . . . . . . . .. . . . . .. . . . . 1071
LXXX TABLE OF CASES REPORTED
Page
Haines v. Kerner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
Haley v. United States ............................... 977, 978
Hall v. United States ................................. 935, 957
Hall v. Villa ......................................... 914, 1050
Halprin v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 994
Hamilton v. California................................... 978
Hamilton; DeBorde v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 986
Hamlin; Argersinger v . . . . . . . . . . . . . . • . . • . • . . . . . . . . . . • . . 912, 951
Harder; Roberts v...................................... 1037
Hargrove v. Newsome. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907
Harris; Lauchli v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Harris v. United States.................................. 932
Harrison County Clerk; Oliver v. . . . . . . . . . . . . . . . . . . . . . . . . . 999
Hartke; Roudebush v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Hartke; Sendak v....................................... 15
Harville Rose Service v. Kellogg Co.. . . . . . . . . . . . . . . . . . . . . . 987
Hauk; Maurice A. Garbell, Inc. v......................... 990
Hawaii v. Standard Oil Co. of California.................. 251
Ifawaiian Land Co. v. Director of Taxation of Hawaii .... 907, 1048
Hawaii Director of Taxation; Hawaiian Land Co. v ...... 907, 1048
Hawkins v. United States................................ 1026
Hay v. Truscott.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Haynes v. Linder....................................... 950
Haynes v. Texas........................................ 956
Hays v. Kentucky. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
Healy v. James.. . ....................................... 1037
Heard v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Henderson; Blackburn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Henderson ; Jackson v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Henderson; Pickett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Henry v. Claiborne Hardware Co. . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Henry County Beventge Co. v. Secretary of Treasury....... 1065
Herman; Nachbaur v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 931
Herriman v. Midwestern United Life Insurance Co........ 921
Heublein, Inc. v. South Carolina Tax Comm'n. . . . . . . . . . . . . . 952
Heyd v. Bastida................. . ....................... 1019
Heyman v. Mahin....................................... 1075
Hidalgo v. Purcell....................................... 957
Hill; Scott v . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Hines Lumber Co. v. Centex-Winston Corp................ 921
Hinningt.on v. Dept. of Corrections of California. . . . . . . . . . . . 997
Hinton v. Rodriguez. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 992
Hitchcock v. Eyman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985
Hoak v. Pennsylvania................................... 956
TABLE OF CASES REPORTED LXXXI
Page
Hocker; Scherer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 4
Hocker; SPrrano v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Hollopeter; Bartlett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 995
Hollopeter; Brayton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Holmes v. Maryland.................................... 976
Holmes v. United States ............................. 1016, 1019
Holt & Sons, Inc.; Ford Motor Co. v..................... 1067
Homart Development Co. v. Diamond..................... 981
Hood v. Burnett................................... . .... 1068
Hood v. United States................................... 924
Hooks v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Horse Creek Royalty Corp. v. Southland Royalty Co....... 1005
Horton v. North Carolina................................ 952
Household Finance Corp.; Lynch v........................ 538
Housing Authority of East Orange; Leff v................. 1064
Howard; Ross v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Howard v. United States...................... . .......... 997
Howell; Mahan v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Howell; Virginia Beach v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Hoyt v. United States.................................... 995
Huber v. State Board of Bar Examiners of Georgia. . . . . . . . . 993
Hudson; Illinois v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Huffman v. Boersen..................... . ............... 951
Huffman v. Moore...................................... 931
Hufnagel; Vaughn v..................................... 1041
Huggins v. United States................................. 1043
Hughes Tool Co. v. Trans World Airlines................ 915
Hughes Tool Co.; Trans World Airlines v. . . . . . . . . . . . . . . . . 915
Hump v. United States................................... 1070
Humphrey v. Cady...................................... 504
Hunt v. Georgia......................................... 1048
H11ntPr v. City Solicitor of Philadelphia.................... 926
Hunter v. North Carolina................................ 975
Hunter v. United States................................. 931
Hutchings v. Texas...................................... 935
Iannarelli v. Morton..................................... 994
Idaho; Wood v.......................................... 1040
Ideal Collection Service; Mitchell v. . . . . . . . . . . . . . . . . . . . . . . 924
Illinois; Adams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
lllinois; Bixler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Illinois; Fentress v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Illinois v. Hudson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96.5
Illinois; Jennings v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Illinois; Kirby v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
LXXXII TABLE OF CASES REPORTED
Page
Illinois; Mendoza v...................................... 1017
Illinois; Prowse v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Illinois; Roper v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Illinois; Saik en v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Illinois v. Somerville..................................... 987
Illinois ; Stanley v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 645
Illinois Bell Telephone Co.; Agron v. . . . . . . . . . . . . . . . . . . . . . 954
Illinois Bell Telephone Co.; Cleveland v.................. 954
Illinois Dept. of Governmt>nt Affairs v. Lake Shore Co. . . . . . 1039
Illinois Dept. of Revenue; Martin Oil Service v. . . . . . . . . . . . 923
Illinois Director of Revenue; Heyman v. . . . . . . . . . . . . . . . . . . . 1075
Tllinois Director of Revenue; Kawitt v.................... 907
Illinois Governor; Koehler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
Illinois Treasurer v. Castle.... . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Immigration and Naturalization Service. See also Immigration
Director.
Immigration and Naturalization Service; Carrasco-Favela v.. 1030
Immigration and Naturalization Service; Lane v........... 988
Immigration and Naturalization Service; Marciano v. . . . . . . 997
Immigration and Naturalization Service v. Vitales.......... 983
Immigration Director; Buckley v......................... 919
Indiana; Crim v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
Indiana; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Indiana; Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
Indiana; Patton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Indiana Attorney General v. Hartke. . . . . . . . . . . . . . . . . . . . . . . 15
Indiana Dept. of Public Welfare; Carpenter v............. 971
Indiana Governor v. Affeldt.... . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Indiana Harbor Belt R. Co. v. Public Service Comm'n....... 923
T nmnn v. North Carolina. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
In re. See name of party.
Insurance Co. of North America v. Continental Oil Co...... 934
International. For labor union, see name of trade.
International Van Lines; Labor Board v................... 953
Iowa; Kappos v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 982
Iowa Beef Packers v. Thompson.......................... 228
Irvis; Moose Lodge No. 107 v............................ 912
Itoh & Co. (America), Inc.; Cook Industries, Inc. v........ 921
Ivimev v. New York.................................... 975
.Jackson v. Georgia...................................... 912
Jackson v. Henderson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Jackson v. Picard....................................... 976
Jackson v. Texas........................................ 1067
Jackson v. United States .............................. 928, 1068
TABLE OF CASES REPORTED LXXXIII
Page
Jackson v. Wainwright.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Jacksonville; Pa pachristou v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
Jacobs v. United States ............................... 955, 1049
James; Healy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1037
Jamieson v. American National Safe Deposit Co .......... 990, 1076
Jarvis; Standifer v...................................... 1067
Jeffries v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Jen kins; General Motors Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . 922
Jennings v. Illinois...................................... 930
Jenson v. United Sta.tes.................................. 1043
Jertberg; Washington State Labor Council, AFL-CIO v .... 1014
.Jimenez v. Beto. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 910
,Johnson; Barbara v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Johnson v. Board of Appeals and Review. . . . . . . . . . . . . . . . . . 955
Johnson v. Brierley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
Johnson v. Dennis...................................... 921
Johnson v. Department of \Vater & Power of Los Angt>les... 1072
Johnson; Dowell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Johnson; Ferenc v.... . ................................. 994
Johnson v. Indiana...................................... 921
Johnson v. Mancusi...................................... 928
Johnson v. Mississippi......... . . . . . . . . . . . . . . . . . . . . . . . . . . 991
Johnson v. New York State Education Dept................ 916
.Johnson v. Reed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 981
Johnson v. Salisbury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
.Johnson v. Turner..................... . ................. 1017
Johnson v. United States .................... 977, 1018, 1045, 1069
Jones v. Board of Education of Daviess County............. 975
Jones v. Crouse......................................... 1018
Jones; Evco v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953, 1037
Jones; Evco Instrurtional Designs v .................... 953, lo.37
Jones; King v................................. . ......... 911
Jones; Lung v.......................................... 1051
.Jones v. United States ................................. 957, 1044
Jordan v. Meisser....................................... 907
Jordan v. Procunier. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Jorgenson v. United States............................... 922
Joseph v. United States.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Joyce v. United States................................... 969
.T oyner v. Sia yton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991
.Judges for 3d Judicial Cir. of l'viirhigan; Wayne County v... 923
Judson; Conrad v....................................... 1041
Justice v. U.S. Court of Appeals..... . .................... 914
Kadans v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
LXXXIV TABLE OF CASES REPORTED
Page
Kaibab Industries v. Parker.............................. 989
Kane v. United States................................... 934
Kansas; Boyd v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Kansas Electric Supply Co.; Dun & Bradstreet, Inc. v. . . . . . 1026
Kappos v. Iowa......................................... 982
Kastenbaum v. United States ......................... 955, 1049
Katz v. McAulay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
Kaufman; Picking v..................................... 1063
Kaufman v. United States................................ 989
Kawitt v. Mahin........................................ 907
Kearney & Trecker Corp. v. Giddings & Lewis, Inc......... 1066
Kelemen v. Serbian Church of St. Demetrius................ 985
Kelley v. Sprinkle....................................... 995
Kelley v. Texas State Board of Medical Examiners.......... 1073
Kellogg; Schanbarger v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Kellogg Co.; Harville Rose Service v. . . . . . . . . . . . . . . . . . . . . . 987
Kelsey v. United States.................................. 930
Kennedy v. United States................................ 1019
Kent v. United States.................................... 994
Kentucky; Colten v...................................... 913
Kentucky; Hays v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
Kentucky; Lewis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Kenyatta v. United States................................ 930
Keppel; Donovan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Kern County Land Co. v. Occidental Petroleum Corp....... 1064
Kerner; Haines v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
Kiernan v. Lindsay ............ . ..................... 1000, 1076
Kiff; Peters v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
Kimmons v. Wainwright.................................. 1043
King v. Jones........................................... 911
King v. San Bernardino.......... ....... ................. 907
Kirby v. Illinois......................................... 951
Kirk v. McMeen................. ..... .... ... . . ... .... .. 949
Kia.bin v. New York..................................... 977
Kleindienst; Long v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Kleppe; Silk v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . .. . .. . . . 952
Knight v. U. S. Court of Appeals.... . .................... 973
Koehler v. Ogilvie...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
Kohl ; Trap Rock Industries v. . . . . . . . . . . . . . . . . . . . . . . .. . . . . 1065
Kohn; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
Korholz; Wolff v........................................ 922
Korzen; Lake Shore Auto Parts Co. v. . . . . . . . . . . . . . . . . . . . . . 1035
Kovtun v. Commissioner............................. . ... 1016
Kras; United States v................................... 915
TABLE OF CASES REPORTED LXXXV
Page
Krivda; California v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Kropp; Bolton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Kropp; Farmer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Krozak v. United States.................................. 936
Kuebel; Schilb v. .. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .. .. 948
Kurcevich; Bryan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Kyle v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Labor Board v. AA Electric Co . . . . . . . . . . . . . . . . . . .. . . . . . 117, 1033
Labor Board; A. W Thompson, Inc. v..................... 1065
Labor Board; Central Hardware Co. v ................. 1037, 1061
Labor Board; Deutsch Co., Electronic Components v ..... 988, 1076
Labor Board; Deutsch Co., Metal Components v. . . . . . . . . 988, 1076
Labor Board v. Granite State Joint Bd., Textile Workers.... 987
La.bor Board; Great Dane Trailers v. . . . . . . . . . . . . . . . . . . . . . . 1041
Labor Board v. International Van Lines.................... 953
Labor Board; Painters & Allied Trades v. . . . . . . . . . . . . . . . . . 988
Labor Board v. Scrivener. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 1033
Labor Board; Thompson, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1065
Labor Boa.rd Regional Director; Sears Roebuck & Co. v . . 996,999
Labor Board Regional Director; Terminal Freight Co. v..... 996
Labor Board Regional Director; Terminal Freight Coop. v. . 996
Labor Union. See name of trade.
LaDuca v. United States................................. 918
Laird; Bradshaw v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954
Laird; DaCosta v . . . . . . • . . . . . . . . . . . . • . . • . . . . . . . • . . . . . . . . 979
Laird; Green v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 993
Laird; MacLean v. .. . . . . .. . . . . .. . . . . . . . . . . . . .. . . . . .. . . .. 964
Laird; Pearl v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 981
Laird; Perkins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Laird; Rosengart v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
Laird v. Tatum.......................................... 985
Laird; United States Steel Corp. v. . . . . . . . . . . . . . . . . . . . . . . . 955
Laird; Wimberley v . . . . . . . . . . . . . . . . . .. . . .. . . . . . . . . . . . . . . 956
Laitram Corp.; Deepsouth Packing Co. v.................. 984
Lake Shore Auto Parts Co. v. Korzen.................. . .... 1035
Lake Shore Auto Parts Co.; Lehnhausen v. . . . . . . . . . . . . . . . . 1039
Lamm v. Volpe... . ..................................... . 1075
LaMorte v. United States ................................ 936
Lane v. Immigration and Naturalization Service............ 988
Langley v. Turner....................................... 95i
Las Colinas, Inc.; Banco Popular de Puerto Rico v. . . . . . . . . . 1067
Lash; Enlow v ....................................... 952, 1076
Lash; Patterson v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 5
Lathan v. Deegan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
LXXXVI TABLE OF CASES REPORTED
Page
Lauchli v. Harris. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Lauchli v. Poos. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952, 1045
Lauchli v. United States................................. 965
Laws v. Yeager ......................................... 976
Lawton v. Tarr......................................... 924
Lecci v. Cahn............................................ 1073
Lecci v. Leonard......................................... 1065
Lederman v. New York City Transit Authority. . . . . . . . . . . . . 995
Leeke; Calloway v...................................... 923
Leff v. Housing Authority of East Orange.................. 1064
Lehnhausen v. Lake Shore Auto Parts Co.................. 1039
Leighton v. Neil... . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947
Lemelson v. Pettine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 972
Lemelson v. Topper Corp................................. 989
LeMon v. Mancusi. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 992
Lenhard v. United States................................. 1013
Lennox; Swarb v ..................................... 191, 1049
Leonard; Lecci v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1065
Lepiscopo v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
Lester v. Board of Elections for District of Columbia.. . . . . . . 1036
Lester; Board of Elections for District of Columbia v. . . . . . . 949
Lewis v. Kentucky. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Lewis; Parker v......................................... 1070
Lewis v. United States................................... 994
Lewis v. U.S. Court of Appeals........................... 957
Liepman v. California ................................. 963, 1048
Like; Carter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Liley v. United States. .. . . . . .. . . . . . . . . . . . . . . . . . .. . . . . . . . . 978
Lindauer v. Oklahoma City Urban Renewal Authority...... 1017
Linder; Haynes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Lindsay; Kiernan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1000, 1076
Lindsey v. Normet...................................... 56
Lindsey v. United States.................................. 995
Lipscomb v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Littlejohn v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Little Rock School District Board of Education v. Clark.... 936
Lloyd Corp. v. Tanner ............................... 1015, 1038
Local. For labor union, see name of trade.
Local Board No. 116; Blatt v ............................ .
Lockett v. Ohio ........................................ .
Loctite Corp. v. Broadview Chemical Corp ............... .
Lodge. For labor union, see name of trade.
Logan v. Lyon ......................................... .
Logan v. Wallkill Prison Correctional Supt ............... .
Long v. Kleindienst ..................................... .
1014
992
920
977
948
1071
TABLE OF CASES REPORTED LXXXVII
Page
Long v. United States................................... 974
Loper v. Beto........................................... 473
Loper v. United States................................... 927
Lopez v. United States................................... 931
Los Angeles Dept. of Water & Power; Johnson v........... 1072
Lott v. Oklahoma........................................ 993
Louisiana; Alexander v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 625
Louisiana; Amphy v.................................... 1074
Louisiana Materials Co. v. Cronvich. . . . . . . . . . . . . . . . . . . . . . 916
Louisiana Power & Light Co.; FPC v . ...... 973, 1015, 1038, 1062
Louisiana Power & Light Co.; United Gas v .. 973, 1015, 1038, 1062
Louisiana State Dept. of Highways v. Dardar ............ 918, 1048
Love v. Dade County School Board....................... 1064
Love v. Virginia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 994
Lovisi v. Virginia ........................... 936,998, 1048, 1076
Lozoff v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 988
Lucas v. Broughton..................................... 1071
Lucas; Giacalone v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Lucas v. Maryland...................................... 1039
Lucas v. United States................................... 1069
Luckett v. United States................................. 994
Ludera v. United States.................................. 998
Lumsden v. United States................................ 927
Lung v. Jones.......................................... 1051
Lusby v. Virginia....................................... 1045
Lustman v. California.................................... 932
Lutheran Social Services of Wis. and Mich.; Rothstein v. . . . 1051
Lynch v. Household Finance Corp......................... 538
Lyon; Logan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
Mac. See also Mc.
MacCollom v. Rollins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 994
MacGruder; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
Machinists & Aerospace Workers; Fraser & Johnston Co. v.. 950
MacLean v. Laird....................................... 964
Magee v. Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 972, 1070
Magee v. Reagan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
Magee v. Yeager. . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . 977
Maggard v. United States................................. 1045
Mahaffey v. Texas....................................... 1018
Mahan v. Howell........................................ 1063
Maher; Tucker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Mahin; Heyman v....................................... 1075
Mahin; Kawitt v........................................ 907
Mahin; United Air Lines v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 986
Mahler v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
LXXXVIII TABLE OF CASES REPORTED
Page
Malatesta v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 998
Maloney v. United States............................. . ... 1041
Manard v. Miller............. . . . . . . . . . . . . . . . . . . . . . . . . . . . 982
Mancusi; Foster v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 964
Mancusi; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Mancusi; LeMon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 992
Mancusi; Maselli v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 976
Mancusi; Pelow v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Mancusi; Rosenberg v. . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Manuel v. Salisbury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Marcelin v. New York........................... . ........ 1044
Marciano v. Immigration and Naturalization Service........ 997
Maricopa County Recorder; Cocanower v. . . . . . . . . . . . . . . . . . 1036
Mariemont, Inc. v. Masheter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Marine Cooks & Stewards; Martella v. . . . . . . . . . . . . . . . . . . . . 97 4
Marine Midland Grace Trust Co. of New York; Caplin v... 950
Marion County Dept. of Public Welfare Director; Carter v. . 669
Marks v. Democratic Party of the U. S................... 922
Marnin v. Urbaniak................................... . .. 1072
Marquez v. United States.............................. 963
Marratto v. United States..................... . .......... 1072
Marrero v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
Marston ; Cocanower v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
Martella v. Marine Cooks & Stewards.................. . .. 974
Martin; Great Fidelity Investment Co. v ................ 955, 1049
Martin v. Pate..................... . .............. . ..... 1042
Martin-Marietta Corp.; Shappell v........... . ............ 948
Martin Oil Service v. Illinois Dept. of Revenue............. 923
Maryland; Anderson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1050
Maryland; Billings v. . . . . . . . . . . . . . . . . . . . . . .. . .. . . . . . . . . . . 1040
Maryland; Evans v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Maryland; Holmes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 976
Maryland; Lucas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Maryland; McCray v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Maryland; Scaife v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Maryland; Tyler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Maryland; Young v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 932
Mascia v. United States........... . ............ . ......... 969
Maselli v. Mancusi............................... . ...... 976
Masheter; Mariemont, Inc. v.. . . . . .. . . . . . . . . . . . . . . . . . . . .. 922
Mason v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Mason & Hanger-Silas Mason Co.; Newsome v. . . . . . . . . . . . . 1066
Masters v. United States...... . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Matthes; Albrecht v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
TABLE OF CASES REPORTED LXXXIX
Page
Matthews v. United States ............................ 1016, 1050
Mattison v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Maurice A. Garbell, Inc. v. Hauk......................... 990
Mayor of New York; Kiernan v ....................... 1000, 1076
Mc. See also Mac.
McAulay; Katz v....................................... 933
McBride v. United States ............................... 977,992
McCarthy; Sims v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
:VfoClanahan v. Arizona Tax Comm'n....... . .. . ........... 913
McClean v. United States................................ 977
McConnell v. Anderson................................... 1046
McCracken; Dennis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
McCray v. Arraj........................................ 952
McCray v. Maryland..................................... 1063
McCray v. United States .............................. 944, 1049
McCray v. U. S. Marshal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
McDaniel v. United States................................ 992
McDonald; Exer-Genie, Inc. v............................ 1075
McDonald v. Wellons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
McGahey v. United States ............................. 977, 1076
McGinnis v. Royster..................................... 986
McGregor v. Schmidt.................................... 1033
McHenry v. United States................................ 975
McKillop v. United States................................ 931
McKinney v. Alabama................................... 1075
McLean v. United States................................. 977
McMeen; Kirk v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
Meacham; Cosco v. . . . . . . .. . .. . .. . .. . .. . .. . . . . . . . . . . . . .. 991
Medansky v. Will. . . . .. . . . . .. . .. . . . . .. . .. . .. . . . .. . . . . . . . 986
Medina v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Meisser; Jordan v.. . .. .. . . .. . .. . . . .. .. . . . .. . .. . . . . .. . . .. 907
Meister v. Dalton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Melchar; Morgan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Memoli v. United States.................................. 928
Mendoza v. Illinois. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Menna v. United States.................................. 963
Meredith v. Eyman..................................... 1067
Messenger v. Operating Engineers. . . . . . . . . . . . . . . . . . . . . . . . . 935
Metropolitan Life Insurance Co.; Trafficante v . .......... 915, 984
2\1. F. A. Central Coop. v. Bookwa.lter...................... 1045
Michigan; Collins v...................................... 991
Michigan; Nielsen v..................................... 1046
Michigan v. Ranes....................................... 917
Michigan; Sims v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
XC TABLE OF CASIB REPORTED
Page
Michigan; Tiner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Michigan v. Trudeau.................................... 965
Michigan; Whitehead v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Michigan Dept. of Military Affairs ; Brown v. . . . . . . . . . . . . . . 990
Middlesex County v. Gevyn Construction Corp. . . . . . . . . . . . . 955
Midgett v. Slayton ............ ..... ................... 916, 972
Midwestern United Life Insuran<'e Co.; Herriman v......... 921
Midwest Video Corp.; United States v . ................ 1015, 1061
Miles v. City-Parish Government of East Baton Rougf'...... 1066
Milisavljevic; Simich v....... . . . . . . . . . . . . . . . . . . . . . . . . . .. . 988
Miller v. Indiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
Miller; Manard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 982
Miller v. Oregon......................................... 1047
Miller v. Salisbury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Miller v. United States................................... 977
Mine Workers v. Bryant................................. 970
Mink; Environmental Protection Agency v. . . . . . . . . . . . . . . . 974
Minnesota; Alexander v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985
Minnesota v. Northern States Power Co................... 1035
Minnesota Secretary of State v. Ke ppel.... . . . . . . . . . . . . . . . . 1034
Mishler; Acarino v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956, 1049
Mississippi; Boring v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Mississippi; Chambers v ............................... 987, 1205
Mississippi; Johnson v................................... 991
Mississippi; Westmoreland v. . . . .. . . . . .. . . . . . . . . . . .. . . . . . 948
Mississippi Chemical Corp.; United States v. . . . . . . . . . . . . . . 298
Mississippi Governor; Ferguson v. . . . . . . . . . . . . . . . . . . . . . . . . 1036
Missouri; Green v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Missouri; Underwood v.................................. 928
Missouri Dept. of Public Health & Welfare; Employees v... 1016
Missouri Division of Welfare v. Like...................... 1045
Missouri-Kansas-Texas R. Co.; Couch v................... 948
Mitchell v. California.................................... 991
Mitchell v. Ideal Collection Service. . . . . . . . . . . . . . . . . . . . . . . . 924
Monger v. Florida....................................... 958
Monsanto Co. v. Dawson Chemical Co. . . . . . . . . . . . . . . . . . . . 974
Monsour v. Cady........................................ 1042
Moody v. Moody..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
Mooney v. United States................................. 947
Moore; Dean v.......................................... 1071
Moore; Huffman v...................................... 931
Moore v. Whipple....................................... 952
.'.Vloore of Bedford, Inc.; Textile Workers v. . . . . . . . . . . . . . . . . 1074
Moose Lodge No. 107 v. Irvis.......... . .................. 912
TABLE OF CASES REPORTED xcr
Page
Morgan v. Melchar...................................... 1014
Morgan v. Neil. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 916
Morgan; Thomas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Morning Telegraph v. Powers............................. 954
Morris v. Georgia....................................... 1050
Morrissey v. Brewer..................................... 951
Morristown; Southern R. Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Morse v. United States................................... 989
Morton; Iannarelli v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 994
:\fort on; Sierra Club v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 727
Moscatello v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Moseley; Battle v....................................... 925
Moseley; Tropiano v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 975
Moses v. Eyman........................................ 1042
Moses v. Washington.................................... 914
Motion Picture Operators; Patterson v. . . . . . . . . . . . . . . . . . . . 976
Mountain Fuel Supply Co. v. United States................. 989
Mourning v. Family Publications Service ............... 987, 1062
Mullins v. Ohio.......................................... 998
MummPrt; Yanich v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
Muncaster v. United States............................... 979
Munds v. United States.................................. 934
Municipal Light Bd. of Reading v. Federal Power Comm'n.. 989
Murel v. Baltimore City Criminal Court ................. 912,951
Murphey; Grausam v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 981
Murphy; Pesoli v....................................... 911
Murphy v. United States................................ 931
Murray v. United States.................... . ............ 935
Nachbaur v. Herman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 931
'.'rassau County District Attorney; Lecci v.. . . . . . . . . . . . . . . . 1073
National Assn. of Broadcasters v. Acting Attorney General. . . 1000
'.'rational Brewing Co. t'. Caldwell......................... 916
National Labor Relations Board. See Labor Board.
Nationwide Mutual Insurance Co.; Brockstein v........... 921
Nationwide Mutual Insurance Co.; Church Avenue Poultry v. 921
Native Am. Church of Navajoland v. Arizona Corp. Comm'n. 901
Neal v. American Veterans Committe<'.................... 926
Neal v. Georgia......................................... 924
Nebraska; Warner v..................................... 1068
Neil v. Biggers.......................................... 954
Neil; Leighton v........................................ 947
Neil; Morgan v......................................... 916
Nellis ; Pressman v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 5
Nelson; Beaty v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 955
XCII TABLE OF CASES REPORTED
Page
Nelson; Magee v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 972, 1070
Nemetz v. United States.................................. 988
New Hampshire; Smith v................................ 923
New Hampshire Aeronautics Comm'n; Northeast Airlines v. . 707
New Jersey; Brewer v.................................... 1044
New Jersey; Foreman v.................................. 995
New Jersey; Freeman v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 992
New Jersey; Watts v.................................... 1018
Newsome; Hargrove v................................... 907
Newsome v. Mason & Hanger-Silas Mason Co.............. 1066
Newsome v. New York.................................. 908
New York; Boulware v................................... 995
New York; Christian v................................... 993
New York; Colombo v................................... 9
New York; Feinlowitz v. . . . . . . . . . . . . . .. . . . .. . . . . . . . . . . . . 963
New York; Ivimey v................... ... . .. . . .. .. .. .. . 975
New Yark; Klabin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
New York; Marcelin v................................... 1044
New York; Newsome v.................................. 908
New York; Overton v.................................... 1017
New York; Pennsylvania v ............................ 951, 1014
New York; Reismanv .................................... 1041
New York; Rogers v. . . . . . . .. . . . .. . . . . . . . . . .. . . . . . . . . . . . 956
New York; Samperi v.................................... 1042
New York; Vermont v................................... 983
New York; Whitmore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
New York Board of Parole; Rozenfeld v.................. 926
New York City; Barbizon Electric Co. v.................. 975
New York City Bar Assn.; Epstein v .................... 952, 1046
New York City Transit Authority; Lederman v............ 995
New York Comm'r of Social Services v. Almenares......... 944
New York District Council No. 9 v. Labor Board........... 988
New York Mayor; Kiernan v ......................... 1000, 1076
New York State Dept. of Labor; Torres v........ . ........ 949
New York State Education Dept.; Johnson v.............. 916
Nicholson v. Wolff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Nidiver v. Field.......................................... 1063
Nielsen v. Michigan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
967.905 Acres of Land in Cook County v. United States.... 974
Noel v. United States................................... 957
Nordlof v. United States................................. 935
N ormet; Lindsey v. . . .. . . . . . . . . .. . . . . . . . . . . . . . . . . . . .. . . 56
North Carolina; Barner v................................. 1040
North Carolina; Beasley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
TABLE OF CASES REPORTED XCIII
Page
North Carolina; Horton v............................... 952
North Carolina; Hunter v....... . . . . . . . . . . . . . . . . . . . . . . . . 975
North Carolina; Inman 11................................ 924
North Carolina; Petway v............................... 956
North Carolina; Robinson v................ .............. 1017
North Carolina; Wrenn v................... .............. 1064
North Carolina State Board of Education ; Allen v......... 920
~ortheast Airlines v. New Hampshire Aeronautics Comm'n .... 707
Northern v. Texas...................................... 929
Northern Natural Gas Co. v. Wilson ............... . .... 949, 1048
Northern States Power Co.; Minnesota v. . . . . . . . . . . . . . . . . . . 1035
Novick v. United States.................................. 995
Oaks v. Wainwright...................................... 995
Oba v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
O'Brien v. United States............ ..................... 917
O'Bryan; Chandler v . ................................. 964, 1049
Occidental Petroleum Corp.; Kern County Land Co. v. . . . . . 1064
O'Conner, In re......................................... 98 1
O'Dell v. Ohio State Medical Board.......... .. ........... 1067
Ogilvie; Koehler v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
Ohio; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 931
Ohio; Earles v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Ohio; Lockett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 992
Ohio; l\follins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 998
Ohio; Parrott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Ohio ; Pia ir v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Ohio; Thomas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Ohio; W?att v.. ..................................... ... 993
Ohio Bur. of Employment Services; Philada Home Fund v.. 970
Ohio Governor v. Sweetenham... ............ ............. 949
Ohio State Medical Board; O'Dell v. . . . . . . . . . . . . . . . . . . . . . . 1067
Ohio Valley Insurance Co.; Smith v. . . . . . . . . . . . . . . . . . . . . . . 921
Ohrynowicz v. United States............................. 989
Oklahoma; Lott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 993
Oklahoma Attorney General v. Okla. ex rel. Wilson.......... 918
Oklahoma City Urban Renewal Authority; Lindauer v. ..... 1017
Oklahoma ex rel. Wilson; Blankenship v. . . . . . . . . . . . . . . . . . . 918
Oliver v. Duggan....................................... 995
Oliver v. Harrison County Clerk.......................... 999
Oller v. California.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
Olsen v. Ellsworth. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Opatz v. St. Cloud....................................... 1000
Operating Engineers v. Flair Builders. . . . . . . . . . . . . . . . . . . . . . 972
Operating Engineers; Messenger v. . . . . . . . . . . . . . . . . . . . . . . . . 935
XCIV TABLE OF CASES REPORTED
Page
Oregon; Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Oregon ; Salisbury v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983
Ortiz v. United States....... . . . . . . .. . . . . . . . . . . .. . . .. . . . . . 926
Osborn v. Brierley....................................... 925
Oskins v. Coiner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Osmond v. Spence....................................... 971
Oswald v. Sostre. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978
Otis; Ridgill v . . . . . . . . . . . . . .. . . . . .. . .. . . . . . .. . . . .. .. . .. . 925
Overmyer Co. of Ohio v. Frick Co........................ 174
Overton v. New York................................... 1017
Overton v. United States ............................... 929,957
Owens-Corning Fiberglas Corp.; Westwood Chemical, Inc. v.. 917
Pace Co. v. Froehlke..................................... 974
Pacheco v. United States................................ 1043
Pacific Far East Line; California Shipping Co. v. . . . . . . . . . . . 1066
Packinghouse Workers; Armour & Co. v................... 955
Page; Watt v.......................................... 1070
Paiewonsky v. Paiewonsky................................ 919
Paige v. Chambers. . . . . . . . . . . . . . . . .. . .. . . . . . .. . . . . . . . . . . 986
Painters & Allied Trades v. Labor Board................... 988
Papachristou v. Jacksonville.............................. 156
Paris Bookstall v. Alabama . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 107 5
Parisi v. Davidson....................................... 34
Parke Davis & Co.; Sims v............................... 978
Parker; Farries v....................................... 930
Parker; Kaibab Industries v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 989
Parker v. Lewis.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Parker; United States v................................. 989
Parks; Tyler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Parrott v. Ohio......................................... 1040
Parsons v. Adams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Pate; Martin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Patents Acting Comm'r v. Benson......................... 915
Patterson v. Lash........................................ 1075
Patterson v. Motion Picture Operators....... . ............. 976
Patton v. Indiana. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Patuxcnt Institution Director; W cdd.Je v. . . . . . . . . . . . . . . . . . 1036
Patuxent Institution Director; Willi.ams v. . . . . . . . . . . . . . . . . 107 4
Peagler; Phoenix Newspapers, Inc. v...................... 1073
Pearl v. Laird........................................... 981
Pelow v. Mancusi....................................... 1043
Pennsylvania v. Baker................................... 918
Pennsylvania; Camm v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Pennsylvania; Cleaves v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 973
TABLE OF CASES REPORTED XCV
Page
Pennsylvania; Hoak v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Pennsylvania v. New York ............................ 951, 1014
Pennsylvania. v. Silverman............................... 1064
Pennsylvania; Timmons v................................ 993
Pennsylvania. v. Ware ........ ,........................... 987
Penosi v. United States.................................. 1065
Perkins v. Laird......................................... 965
Perryman v. ·washington................ .... ............. 982
Pesoli v. Murphy....................................... 911
Peters v. Kiff... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
Pettine; Lemelson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 972
Petway v. North Carolina. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Philada Home Fund v. Bd. of Review, Ohio Emp. Service... 970
Philadelphia Chewing Gum Corp. v. Somportex Ltd........ 1017
Philadelphia City Solicitor; Hunter v. . . . . . . . . . . . . . . . . . . . . 926
Philpott v. Essex County Welfare Board.................. 913
Phoenix Newspapers, Inc. v. Church...................... 908
Phoenix Newspapers, Inc. v. Peagler. . . . . . . . . . . . . . . . . . . . . . 1073
Picard; Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 976
Pickett v. Henderson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Picking v. Kaufman...................................... 1063
Picking v. State Finance Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . 931
Pipefitters v. United States............................... 950
Plair v. Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Pleasant v. Richardson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Ponder v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Poos; Lauchli v . ...................................... 952, 1045
Pordum v. United States................................ 998
Portland Boxing & Wrestling Comm'n; Von Poppenheim v.. 999
Poss v. Smith.......................................... 928
Post-Newsweek Stations v. Bus. Execs. for Vietnam Peace.. 953
Poweleit v. United States................................ 931
Powell v. United States................................. 935
Powers; Ellis v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Powers; Morning Telegraph v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 954
Presbytery of Seattle, Inc.; Rohrbaugh v. . . . . . . . . . . . . . . . . . 996
Presler v. State Division of Human Rights. ................ 1006
Pressley v. United States................................ 929
Pressman v. Nellis....................................... 975
Prichard; Thornton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Prinsburg Coop Fertilizer Co. v. United States............ 906
Procter & Gamble Co. v. Purex Corp. . . . . . . . . . . . . . . . . . . . . . . 1065
Procunier; Jordan v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Prowse v. Illinois. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
XCVI TABLE OF CASES REPORTED
Page
Prudential Insurance Co.; Willis v. . . . . . . . . . . . . . . . . . . . . . . . . 318
Prudential Savings & Loan Assn.; DiMaggio v.............. 991
Public Service Comm'n; Indiana. Harbor Belt R. Co. v. . . . . 923
Puglia v. Cotter.......................................... 1073
Purcell; Hidalgo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
Purex Corp.; Procter & Gamble Co. v...................... 1065
Putnam v. U.S. Court of Appeals......................... 986
Quick v. Virginia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Q11inry College & Seminary v. Burlington Northern, Inc.... 906
Rabe v. Washington ................................... 313,913
Ranes; Michigan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 i
Rawls v. Conde Nast Publirations ......................... 969
Ray v. Foreman... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Ray v. U.S. District Court............................... 1019
Reagan; Magee v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
Recorder for :Vlaricopa County; Cocanower v. . . . . . . . . . . . . . . 1036
Redke; Silvertrust v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
Reed v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991
Reed; Johnson v........................................ 981
Regency Realty v. Commissioner.......................... 1065
Register v. Georgia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Reid v. Virginia......................................... 1067
Reisman v. New York............................... ... .. 1041
Reliance Electric Co. v. Emerson Elertric Co. . . . . . . . . . . . . . 969
Remillard; Carleson v . ................................ 951, 1061
Rener v. Beto........................................... 1051
Resolute Ins. Co. v. 7th Jud . District Court of Okla. County. 948
Rey v. United States.................................... 907
Reynolds v. Texas Gulf Sulphur Co....................... 918
Rhode Island; Berberian v................................ 1036
Hicci v. Chicago Mercantile Exchange .................. 953. 984
Rich; Benson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978
Richardson; Carlough v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 969
Richardson; Cole v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 676
Richardson; Galdeira v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
Richardson; Hagler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Richardson ; Pleasant v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
Richardson v. Wright ................................ 208, 1033
Richardson; Wright v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208, 1033
Richmond v. United States............................... 974
R.irhmond County Supreme Court; Waltenberg v. . . . . . . . . . . 1069
Ridgill v. Otis...... .................................... 925
Riley v. District of Columbia.............................. 1066
Rivera v. United States ................................ 963, 987
TABLE OF CASES REPORTED XCVII
Page
Riverside County; Agua Caliente Band of Indians v. . . . . 933, 1033
Riverside County; Desert Outdoor Advertising v. . . . . . . . . . 916
Robbins v. United States................................ 928
Roberts v. Commissioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
Roberts v. Harder....................................... 1037
Roberts v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 1050
Robinson v. Davis....................................... 979
Robinson v. North Carolina.............................. 1017
Robinson v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Rockefeller Center, Inc.; DunLeavay v ................. 969, 1044
Rocky Mt. Power Co.; Colo. River Water Conscrv. Dist. v. . 996
Rodgers v. Gaffney....................................... 1069
Rodriguez; Hinton v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 992
Rodriquez v. Cady. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Rogers v. Adams. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
Rogers v. New York................................... . 956
Rogers; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Rohm v. California...................................... 987
Rohrbaugh v. Presbytery of Seattle, Inc.................... 996
Rojas v. Chambers....................................... 1063
Rollins; MacCollom v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 994
Rollins v. United States................................. 932
Roman v. United States......................... . ........ 963
Roper v. Illinois. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . 922
Rorie v. Galveston....................................... 988
Rosenberg v. Mancusi.................................... 956
Rosengart v. Laird....................................... 908
Ross; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Ross v. Howard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Rothman; Gough Industries v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 916
Rothstein v. Lutheran Social Services of Wis. and Mich... . . . 1051
Roudebush v. Hartke.................................... 15
Roy v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 976
Royster; McGinnis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 986
Rozenfeld v. New York Board of Parole.................... 926
Ruiz v. Beto......... . .............................. . ... 925
Russo v. United States................................... 949
S., Linda R. v. Richard D..................... . .......... 1064
Saiken v. Illinois. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
St. Clair v. Selective Service Local Board No. 35............ 1014
St. Cloud; Opatz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1000
Saletko v. United States.................................. 1040
Salisbury ; Johnson v. . . . . . . . . . . . .. . .. . . . . . . . . .. .. . . . . .. . . 928
Salisbury; Manuel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
XCVIII TABLE OF CASES REPORTED
Page
Salisbury; Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Salisbury v. Oregon...................................... 983
Samperi v. New York.................................... 1042
Samples, In re........................................... 911
San Bernardino; King v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907
Sanchez v. United States................................. 925
San Diego Unified School District v. California. . . . . . . . . . . . . . 1016
San Francisco Board of Education; Strickland v. . . . . . . . . . . 1005
San Jacinto, The; Union Oil Co. of California v............ 954
Sarrameda v. Secretary of Health, Education, and Welfare... 929
Sasko v. United States ................................ 957 1076
Savage v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Scaife v. Maryland...................................... 1039
Scannell; Denman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 994
Schanbarger v. Kellogg. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Scharfman v. United States............................... 919
Schectman; Fershtman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Scherer v. Hocker....................................... 1074
Schilb v. Kuebel......................................... 948
Schmidt; Berg v. . . . . . . . . . . . . . . . .. . . . . . . .. . . . . . . .. . . . . . . 978
Schmidt; McGregor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Schneble v. Florida. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427
Schneckloth v. Bustamonte ............................ 953, 1062
Schoor v. United States................................... 920
Schoore v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Schroeder v. Buchkoe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Schroeder v. Busenhart. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Schwartz v. United States............................... . 984
SCM Corp.; Virginia Impression Products Co. v. . . . . . . . . . . 936
Scott v. Field . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Scott v. Hill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Scott v. United States.................................... 921
Scrivener; Labor Board v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 1033
Sears, Roebuck & Co. v. Solien .......................... 996,999
Secretary, Dept. of Health & Social Services; McGregor v. . . 1033
Secretary of Agriculture; Sunny Hill Farms Dairy Co. v. . . . . 917
Secretary of Army; Ambac Industries v.................... 974
Secretary of Army; Cortright v. . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Secretary of Army; Pace Co. v........................... 974
Secretary of Board of Elections v. Howell. . . . . . . . . . . . . . . . . 1063
Secretary of Defense; Bradshaw v........................ 954
Secretary of Defense; DaCosta v. . . . . . . . . . . . . . . . . . . . . . . . . . 979
Secretary of Defense; Green v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 993
Secretary of Defense; MacLean v. . . . . . . . . . . . . . . . . . . . . . . . . 964
TABLE OF CASES REPORTED XCIX
Page
Secretary of Defense; Pearl v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 981
Secretary of Defense; Perkins v. . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Secretary of Defense; Rosengart v........................ 908
Secretary of Defense v. Tatum........................... 985
Secretary of Defense; Wimberley v. . . . . . . . . . . . . . . . . . . . . . . 956
Secretary of Health, Education, and Welfare; Carlough v.... 969
Secretary of Health, Education, and Welfare; Hagler v. . . . . . 1071
Secretary of Health, Education, and Welfare; Pleasant. v..... 1072
Secretary of Health, Education, and Welfare; Sarrameda v.. 929
Secretary of Health, Education, and Welfare v. Wright ... 208, 1033
Secretary of Health, Education, and Welfare; Wright v .. 208, 1033
Secretary of Huma.n Relations Agency v. Villa ........... 914, 1050
Secretary of Interior; Iannarelli v. . . . . . . . . . . . . . . . . . . . . . . . . 994
Secretary of Interior; Sierra Club v. . . . . . . . . . . . . . . . . . . . . . . 727
Secretary of State; Williams v . . . . . • . . . . . . . . • . . . . . . . . . . . . . 926
Secretary of State of Alabama v. Hadnott. . . . . . . . . . . . . . . . . . 1035
Secreta.ry of State of Florida; Teitelbaum v. . . . . . . . . . . . . 986, 1076
Secretary of State of l\finnesota v. Keppel. . . . . . . . . . . . . . . . . 1034
Secretary of State of Texas v. Weiser...................... 912
Secretary of Transportation v. D. C. Fed. of Civic Assns..... 1030
Secretary of Transportation; Lamm v. . . . . . . . . . . . . . . . . . . . . 1075
Secretary of Treasury; Century Anns, Inc. v. . . . . . . . . . . . . . . 1065
Secretary of Treasury; Henry County Beverag-e Co. v. . . . . . . 1065
Security Savings & Loan Assn. v. Westinghouse Credit Corp.. 923
Seewald v. United States................................. 978
Selective Service Local Board No. 116; Blatt v......... . . . . . 1014
Selective Service Local Board No. 7; Fein v. . . . . . . . . . . . . . . . 365
Selective Service Lo cal Board No. 35; St. Clair v . . . . . . . . . . 1014
Selective Service System Director; Lawton v. . . . . . . . . . . . . . . 924
Sendak v. Hartke........................................ 15
Senior Judge, U.S. Court of Appeals; Dixon v............. 1033
Serbian Church of St. Demetrius; Kelemen v. . . . . . . . . . . . . . . 985
Serrano v. Hocker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Seventh Judicial Dist. Ct. of Okla. Cty.; Resolute Ins. Co. v. . 948
Shaffer; Taxay v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Shalla v. U.S. District Court............................. 1040
Shapiro; Barrett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Shappell v. Martin-Marietta Corp........................ 948
Sharpe; Bradley Lumber Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Sharrow v. Brown .................................... 968, 1076
Shelton v. Brunson...................................... 983
Sheppard v. Washington.................................. 936
Siegel v. Chicken Delight, Inc............................. 955
Siegel; Chicken Delight, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 955
C TABLE OF CASES REPORTED
Pa~
Sierra Club v. Morton.................................... 727
Silber; Theriault v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Silk v. Kleppe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
Silva v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Silver; Eisen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 976
Silverman; Pennsylvania v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
Silverman v. United States............................... 918
Silverstein v. United States................................ 1074
Silvertrust v. Redke. . . . .. . . . . . . .. . . . . . . . . .. . . . . .. . . . . . . . . 1041
Simich v. Milisavljevic................................... 988
Sims v. McCarthy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Sims v. Michigan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Sims v. Parke Davis & Co............................... 978
Sinclair v. Turner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Sinclair v. United States................................. 956
Siragusa v. United States................................. 974
Sixty-Seventh Minnesota State Senate v. Beens.............. 985
Sklaroff v. United States................................. 920
Slayton; Evins v. .. . .. . .. . .. . .. . .. . .. . . . . . .. . .. . . . .. . .. . . 1070
Slayton; Green v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 976
Slayton; Joyner v....................................... 991
Slayton; Midgett v. . . . . . . . . . . . .. .. . .. . . .. . . . . .. .. . .. . . 916, 972
Small Business Administration; Silk v. . . . . . . . . . . . . . . . . . . . . 952
Smart v. United States................................... 998
Smiley v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Smith v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 172, 991
Smith v. MacGruder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
Smith v. New Hampshire................................. 923
Smith v. Ohio Valley Insurance Co........................ 921
Smith; Poss v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . 928
Smith v. Southern Pacific Co... . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Smith v. United States ............................ 932,974, 1043
Smitherman v. Virginia................................... 1045
Smothers v. United States................................ 1072
Snook v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
Sobel v. United States................................... 979
Society for the Propagation of the Faith; Woods v. . . . . . . . 971
Solien; Sears, Roebuck & Co. v . ........................ 996, 999
Solien; Terminal Freight Coop. Assn. v... . . . . . . . . . . . . . . . . . 996
Solien; Terminal Freight Handling Co. v.................. 996
Somerville; Illinois v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 987
Somportex Ltd.; Philadelphia Chewing Gum Corp. v. . . . . . . . IOI 7
Sostre; Oswald v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978
South Carolina; Bennett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
TABLE OF CASES REPORTED er
Page
South Carolina Tax Comm'n; Heublein, Inc. v. . . . . . . . . . . . . 952
Southern Pacific Co.; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Southern R. Co. v. Morristown........................... 922
Southland Royalty Co.; Horse Creek Royalty Corp. v...... 1005
Speaks v. United State~.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Spence; Osmond v...................................... 971
Sperry & Hutchinson Co.; Federal Trade Comm'n v........ 233
Sperry Rand Corp. v. A-T-0, Inc......................... 1017
Spiller v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Spivey v. United States.................................. 927
Sprinkle; Kelley v....................................... 995
Standard Oil Co. of California; Hawaii v. . . . . . . . . . . . . . . . . . 251
Standard Oil Co. of California; United States v. . . . . . . . . . . . 969
Standifer v. Jarvis....................................... 1067
Stanley v. Illinois........................................ 645
Stanton; Carter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 669
State. See also name of State.
State Board of Bar Examiners of Georgia; Huber v........ 993
State Board of Control; Willis v. . . . . . . . . . . . . . . . . . . . . . . . . 950
State Board of Education; Brusca v. . . . . . . . . . . . . . . . . . . . . . 1050
State Board of Education of North Carolina; Allen v. . . . . . 920
State Boa.rd of Election Comm'rs v. Evers................. 1001
Stato Division of Human Rights; Presler v. . . . . . . . . . . . . . . . 1000
State Finance Corp.; Picking v. . . . . . . . . . . . . . . . . . . . . . . . . . . 931
Stephenson v. United States............................... 1069
Sterner Industries, Inc. v. United States.................... 906
Sterrett; Carpenter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971
Stewart; Cecire v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Stewart v. White. . . . . . . . . . . . . . . .. . . . . . . . . . . . . .. . .. . . . . . . . 1038
Stidham; Swenson v. . . .. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 913
Stone; Teitelbaum v .................................. 986, 1076
Strachan Shipping Co. v. Galveston. . . . . . . . . . . . . . . . . . . . . . . 988
Stratton v. United States................................. 1069
Strauss v. United States.................................. 989
Strickland v. Boa.rd of Education, San Francisco School Dist. . 1005
Strickland v. United States............................... 1044
Strom; Thompson v...................................... 1071
Stuard v. Eyman........................................ 1068
Stubbs; Giordano v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
Stuhl v. 527 Madison Avenue Co.......................... 989
Sullivan v. Buchkoe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978
Sullivan v. Sullivan.... . . . . . . . . . . . . . . . .. . . . . . . . .. . . . . . . . . 1070
Sullivan v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92i
CII TABLE OF CASES REPORTED
Page
Sumida v. Yumen ................................. 964,972, 1048
Sundlun v. Sundlun...................................... 1068
Sunny Hill Farms Dairy Co. v. Butz. . . . . . . . . . . . . . . . . . . . . . 917
Sun Shipbldg. Co.; American Exp. Isbrandtsen Lines v. . . . . . 920
Superintendent of penal or correctional institution. See name
of superintendent.
Superior Court of California; Gerardi v. . . . . . . . . . . . . . . . . 914, 1049
Superior Court of California; Graham v. . . . . . . . . . . . . . . . . . . 993
Supreme Court of Nevada Chief Justice; Kadans v. . . . . . . . 948
Supreme Court of Richmond County; Waltenberg v......... 1069
Supreme Court of Washington Chief Justice; DeBorde v.... 986
Swanson v. Arkansas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 996
Swarb v. Lennox ..................................... 191, 1049
Sweetenham; Gilligan v . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . 949
Swenson; Burns v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 969
Swenson; Crosswhite v............. . . . . . . . . . . . . . . . . . . . . . . 1U42
Swenson v. Stidham..................................... 91::l
Tanner; Lloyd Corp. v . .............................. 1015, 1038
Tanner v. Twomey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . lf)15
Tarabocchia v. Zim Israel Navigation Co.................. 934
Tarlton v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926, 1049
Tarr; Lawton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
Tate v. Grace........................................... 1069
Tatro v. United States ............................... 926, 1019
Tatum; Laird v......................................... 985
Taxay v. Shaffer.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Taylor v. United States.................................. Yau
Teague v. United States................................. 931
Teague v. Wright........................................ 1075
Teamsters v. Allied Foods................................. 1041
Teamsters; Emery Air Freight Corp. v. . . . . . . . . . . . . . . . . . . . . 1066
Tedesco v. Cincinnati Gas & Electric Co................... 92a
Teitelbaum v. Stone ................................... 986, 1076
Tennessee; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 997
Tennessee; Duncan v.................................... 127
Tennessee; Watts v...................................... 1043
Tennessee Governor v. Blumstein......................... 330
Terminal Freight Coop. Assn. v. Solien.................... 996
Terminal Freight Handling Co. v. Solien................... 996
Texas; Andrade v........................................ 1067
Texas; Breedlove v...................................... 1074
Texas; Buchanan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Texas; Jackson v........................................ 1067
Texas: Haynes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
TABLE OF CASES REPORTED CIII
Page
Texas; Hutchings v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Texas; Mahaffey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Texas; Northern v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Texas Comptroller of Public Accounts; Anderson v......... 1035
Texas Court of Criminal Appeals; Carter v. . . . . . . . . . . . . . . . 970
Texas Gulf Sulphur Co.; Reynolds v..................... 918
Texas Secretary of State v. Weiser. . . . . . . . . . . . . . . . . . . . . . . . 912
Texas State Board of Medical Examiners; Kelley v. . . . . . . . . 1073
Text-ile Workers; Labor Board v.......................... 987
Textile Workers v. Moore of Bedford, Inc.................. 1074
Theriault v. Silber. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Thomas v. Morgan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Thomas v. Ohio......................................... 920
Thomas v. United States ............................... 975, 1041
Thompson v. Board of Comm'rs of Oak Brook Park...... 920
Thompson; Bradford v.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 955
Thompson; Iowa Beef Packers v . . . . . . . . . . . . . . . . . . . . . . . . . 228
Thompson v. Strom. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Thompson v. Thompson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971
Thompson; United States v.............................. 998
Thompson, Inc . v. Labor Board........................... 1065
Thorbus v. Beto........................................ 912
Thornton v. Prichard.................................... 1063
Thousand Oaks v. Van Nuys Publishing Co................ 1042
Tidewater Oil Co. v. United States....................... 986
Timmons v. Pennsylvania. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 993
Tiner v. Michigan . .. . .. . . . . .. . . . . . . . . . . . . . .. . . .. . .. . .. . . 1043
Tocco v. United States.................................. 974
Todaro v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
Tonasket v. Washington.................................. 1038
Topco Associates; United States v......................... 596
Topper Corp.; Lemelson v............................... 989
Torres v. New York State Dept. of Labor................ 949
Township. See name of township.
Trafficante v. Metropolitan Life Insurance Co ........... 915. 984
Trans World Airlines v. Hughes Tool Co.................. 915
Tr11n;; World Airlines; Hughes Tool Co. v................. 915
Trap Rock Industries v. Kohl............................. 1065
Treasurer of Illinois v. Castle. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Trevino v. United States................................. 929
T. R. Grubbs Tire & Appliance v. Gen. Electric Credit Corp.. 699
Triangle Publications, Inc. v. Powers...................... 954
Tropiano v. Moseley. . . . . .. .. .. . . .. . . . . . . . .. . . .. .. . . . .. . 975
Tropiano v. United States............................... Y75
CIV TABLE OF CASES REPORTED
Page
Troy v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Trudeau; Michigan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Trudo v. United States.................................. 926
Truscott; Hay v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Tucker v. Maher........................................ 1052
Tulsa Local 513, Motion Picture Operators; Patterson v..... 976
Turner; .Johnson v...................................... 1017
Turner; Langley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
Turner; Sinclair v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
201 50-lb. Bags of Furazolidone; United States v. . . . . . . . . . . 964
Twomey; Tanner v...................................... 1015
Twomey; "Walker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Tyler v. Maryland...................................... 1039
Tyler v. Parks.......................................... 1019
Tyrone v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Underwood v. Missouri.................................. 928
Union. For labor union, see name of trade.
Union Oil Co. of California v. The San Jacinto.............. 954
United. For labor union, see name of trade.
United Air Lines v. Mahin............................... 986
United Gas Pipe Line v. La. Power & Light. .. 973, 1015, 1038; 1062
United States; Abarca-Espinosa v. . . . . . . . . . . . . . . . . . . . . . . . . 930
United States; Adams v................................. 1072
United States; Addonizio v ............................ 936, 1048
United States; Allen v. . . . . . . . . . . . .. . . . . . . . . . . . . . . . . .. . .. 954
United States; Almota Farmers Elevator & Warehouse Co. v. 1039
United States; Altimus v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 975
United States; Amato v. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . .. . 933
United States; Anderson v ............................. 918,927
United States; Angelini v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 964
United States; Anstead v................................ 1017
United States; Archer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
United States; Archi-e v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
United States; Arnold v.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
United States; Arriagada v.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
United States; Augello v................................. 1070
United States; Austin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
United States; A very v . . . . . .. . .. . . . . . . . . . . . . . . . . . . . . . . . . 930
United States; Baca v. . . . . . . .. . .. . . . .. . . . . . . . . . . . . . . .. . . 1072
United States; Baker v.................................. 974
United States; Bamberger v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
United States; Bartlett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 932
United States; Baskin v ............. .................. 927,991
United States v. Basye................................... 1039
TABLE OF CASES REPORTED CV
Page
United States; Bays v ................................ 957, 1076
United State;;; BBF Liquidating, Inc. v.. . . . . . . . . . . . . . . . . . . 106,5
United Sta.tes; Beasley v .. ............................ 9/i2, 1049
United States; BeckPr v . ............................. 932, 10-19
United States; Bell v.................................... 929
United States; Bettker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 975
United States; Biancone v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
United States; Bivens v................................. 964
United States; Bowman v.............. ... .............. 995
United States; Boyd v....... ........................... 992
1Tnited States; 13ra.ver v... . ... . ......................... 1064
United States; Breaux v.................................. 1072
United States; Bronson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 994
United States; Bronston v... .. .................... ....... 1064
United States; Brooks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
United States; Brown v . .............•..........•.....• 925, 978
United States; Brunges v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 993
United States; Bryant v.................................. 992
United States; Bullock v... .. . . .. . . . . . . . . . . . . . . . . . . . . . . . . 931
United States; Burkhalter v............................. 992
United Statf'S: Burroughs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
United States; Burton v... .... . . . . . . . . . . . . . . . . . . . . . . . . . . 991
United States; Cagle v................................... 976
United States; Calabro v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
United States; Calhoun v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
United States; Camara v................................. 1074
United States; Capps v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
United States: Caraballo v.............................. 9/<7
United States; Carlson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
United States; Carter v . ............................... 920, 932
United States; Casella v. . .. . .. . .. .. . . . .. . . . . . . . . . . . . . . . . . 929
United States; ca~taldi V.. .............................. 992
United Stat€S; Cerone v................................. 964
United States; Chambers v............................... 1071
United States; Cha5on v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
United States; Chicquelo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
United States; Clayton v.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 975
United Statei-; Clo~e v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
United States; Cohen v ................................ 926,954
United States; Cohn v... .... ........... .. ............... 975
United States; Colabella v.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
United State~; Cole v ................................. 927,931
United States; Coleman i•.. ... ........................... 917
United States; Colry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
CVI TABLE OF CASES REPORTED
rage
United States; Cooke v.................................. 977
United States; Cortina v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 964
United States; Couch v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
United States; Cox v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
United States; Cronan v................................ 1017
United States; Crosby v................................ 917
United States; Crow v.................................. 999
United States; Culado v................................. 911
United States; Dadurian v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
United States; Daniel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 994
United States; Davis v ............................ 933,976, 1046
United States; Delta Development Co. v.................. 974
United States; Denton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
United States; Diorio v.................................. 955
United States; DiRosa v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
United States; Doe v................................... 984
United States; Dougherty v............................... 1070
United States; Drakeford v.............................. 1018
United States; Driscoll v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
United States; Dunnings v................... . . . . . . . . . . . 991
United States v. Egan................................... 984
United States; Erlenbaugh v............................. 973
United States; Evans v................................... 1045
Unit,ed States; Fackelman v............................. 992
United States; Fairman v............. . . . . . . . . . . . . . . . . . . 1032
United States v. Falstaff Brewing Corp................... 952
United States; Farinas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
United States; Faulkner v . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 926
United States; Feggett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 992
United States; Felan v......... . . . . . . . . . . . . . . . . . . . . . . . . . 948
United States; Feltman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 996
United States; Fentress v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
United States; Ferguson v............................... 934
United States; Ferrara v................................ 1032
United States v. First National Bancorporation............ 915
United States; Fischetti v............................... 1016
United States; Fisons Ltd. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
United States v. Florida.......... . . . . . . . . . . . . . . . . . . . . . . . 984
United States; Ford Motor Co. v........................ 562
United States; Fountain v............................... 929
United States; Fully v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
United Stat.es; Gaines v................................. 927
United States; Galveston City Co, v...................... 936
United Sta.tes; Garcia-Guillern v . . . . . . . . . . . . . . . . . . . . . . . . . 989
TABLE OF CASES REPORTED CVII
Page
United States; Garrett Freightlines v. . . . . . . . . . . . . . . . . . . . . . 1035
United States; Gelbard v................................. 984
United States v. Generes .............................. 93, 1033
United States; George v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
United States; Giglio v.................................. 150
United States v. Glaxo Group Ltd........................ 914
United States; Goodman v............................... 993
United States v. Gravel. ...................... 916,972, 1038, 1062
United States; Gravel v ...................... 916,972, 1038, 1062
United States; Gray v................................... 930
United States; Green v ............................... 976,991
United States; Greenberg v.............................. 988
United States; Groob v................................. 1016
United States; Grubbs v................................. 965
United States; Hagelberger v............................ 925
United States; Haley v.. . . .. . .. .. .. .. . .. . .. .. .. .. . . .. 977, 978
United States; Hall v . ................................ 935, 957
United States; Halprin v................................ 994
United States; Harris v. . . . .. . . . . . . . . . . . . . . . . . . . .. . . .. . . 932
United Sta.tes; Hawkins v............................... 1026
United States ; Heard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
United States; Holmes v. . .. . . .. . . .. . .. . .. . .. .. . . . . . 1016, 1019
United States; Hood v.................................. 924
United St.ates; Howard v................................ 997
United States; Hoyt v.................................. 995
United States; Huggins v................................. 1043
United States; Hume v................................... 1070
United States; Hunter v... . .. . .. .. .. . . . . .. . . .. .. . . .. .. .. 931
United States; Jackson v .............................. 928, 1068
United States; Jacobs v ............................... 955, 1049
Unit,ed States; Jeffries v....... . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
United St.at es; Jenson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
United States; Johnson v ................... 977, 1018, 1045, 1069
United States; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957, 1044
United States; Jorgenson v.. .. .. .. .. . . . .. .. .. . .. .. . .. . .. 922
United States; Joseph v................................. 1006
United St.ates; Joyce v............... . ... . ........ . ..... 969
United St.ates; Kane v......... . ................ . ....... 934
United States; Kastenbaum v ... . ..................... 955, 1049
United States; Kaufman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 989
United States; Kelsey v................................. 930
United States; Kennedy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
United States; Kent v....................... . .......... 994
United States; Kenyatta v.. .. ........................... 930
CVIII TABLE OF CASES REPORTED
Page
United States v. Kras................................... 915
United States; Krozak v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
United States; Kyle v................................... 1018
United States; LaDuca v................................ 918
United States; LaMorte v... . . . . .. . . .. . .. . . . . . . . . . . .. . . . 936
United States; Lauchli v................................. 965
United States; Lenhard v............................... 1013
United States; Lepiscopo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
United States; Lewis v.................................. 994
United States; Liley v................................... 978
United Stat-es; Lindsey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 995
United States; Lipscomb v............................... 1076
United States; Littlejohn v.... . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
United States; Long v.................................. 974
United States; Loper v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
United States; Lopez v. . . . . . . . . . . . . . . . . . . . . . .. . .. . . . . .. . 931
United States; Lozo ff v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 988
United States; Lucas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
United States; Luckett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 994
United States; Ludera v................................ 998
United States; Lumsden v................................ 927
United States; Maggard v............................... 1045
United States; Mahler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
United States; Malatesta v.............................. 998
United States; Maloney v................................ 1041
United States; Marquez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963
United States; Marra tto v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
United States; Marrero v................................ 933
United States; Mascia v . . . . . . .. . .. . . .. .. . .. . . . . . . .. . .. . . 969
United States; Masters v................................ 1044
United States; Matthews v ....................... . ... 1016, 1050
United States; McBride v ............................. 977,992
United States; McClean v. .. .. .. .. . . .. . . . .. . . .. . . . .. . . . . 977
United States; McCray v .............................. 944, 1049
United States; McDaniel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 992
United States; McGahey v ............................ 977, 10i6
United States; McHenry v............................... 975
United States; McKillop v............................... 931
United States; McLean v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
United States; Medina v................................. 1069
United States; Memoli v................................. 928
United States; Menna v................................. 963
United States v. Midwest Video Corp .................. 1015, 1061
United States; Miller v. . . . .. . . .. . . . .. .. .. . .. .. .. .. .. . .. . 977
TABLE OF CASES REPORTED CIX
Page
United States v. Mississippi Chemical Corp................ 298
United States; Mooney v................................ 947
United States; Morse v.... . . . .. .. .. . . . . . .. . . . .. . . .. . . . . 989
United States; Moscatello v. . . . . . . . . . . . . . . . . • . . . . . . . . . . . . 928
United States; Mountain Fuel Supply Co. v............... 989
United States; Muncaster v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979
United States; Munds v................................. 934
United States; Murphy v................................ 931
United States; Murray v................................. 935
United States; Nemetz v................................ 988
United States; 967.905 Acres of Land in Cook County v..... 974
United States; Noel v......................... .. . . . . . . . . . 957
United States; Nordlof v................................. 935
United States; Novick v................................ 995
United States; Oba v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
United States; O'Brien v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917
United States; Ohrynowicz v. .. .. .. . .. .. .. .. .. . .. .. .. . . . 989
United States; Ortiz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
United States; Overton v .. .......••.•..•..••••••••.... 929,957
United States; Pacheco v.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
United States v. Parker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 989
United States; Penosi v.................................. 1065
United States; Pipefitters v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
United States; Ponder v................................. 918
United States; Pordum v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 998
United States; Poweleit v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 931
United States; Powell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
United States; Pressley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
United States; Prinsburg Coop Fertilizer Co. v. . . . . . . . . . . . . 906
United States; Rey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907
United States; Richmond v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 4
United States; Rivera v . .............................. 963, 987
United States; Robbins v................................ 928
United States; Roberts v. . . . .. . . .. .. . . .. . .. .. .. . . .. .. .. . 1050
United States; Robinson v............................... 927
United States; Rollins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
United States; Roman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963
United States; Russo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
United States; Saletko v................................. 1040
United States; Sanchez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
United States; Sasko v ................. .. ............ 957, 1076
United States; Savage v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
United States; Scharfman v........................... . . . 919
United States; Schoor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
ex TABLE OF CASES REPORTED
Page
United States; Schoore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
United Sta too; Schwartz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 984
United States; Scott v. . . . . . . . .. . . . . .. . . . . . . . . . . . .. . .. . . . 921
United States; Seewald v.................... ... . . . . . . . . . . 978
United States; Silva v................................... 918
United States; Silverman v. . .. . . . . . . . .. . . . . . . . . .. .. . .. .. . 918
United States; Silverstein v............................... 1074
United States; Sinclair v................................. 956
United States; Siragusa v................................ 974
United States; Sklaroff v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
United Sta.tes; Smart v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 998
United States; Smith v ......... . ................. 932,974, 1043
United States; Smothers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
United States; Snook v.................................. 1041
United States; Sobel v . ................ , • . . . . . . . . . . . . . . . . 979
United States; Speaks v................................. 1071
United States; Spivey v.................................. 927
United States v. Standard Oil Co. of California............. 969
United States; Stephenson v....... . . . . . . . . . . . . . . . . . . . . . . 1069
United States; Sterner Industries, Inc. v................... 906
United States; Stratton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
United States; Strauss v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 989
United States; Strickland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
United States; Sullivan v......................... .. ..... 927
United States; Tarlton v . ....................•.•..•.•.. 926, 1049
United States; Tatro v .................... . .......... 926, 1019
United States; Taylor v................................. 930
United States; Teague v..... . ......... . ................. 931
United States; Thomas v . ............................. 975, 1041
United States v. Thompson.............................. 998
United States; Tidewater Oil Co. v....................... 986
United States; Tocco v.................................. 974
United States; Todaro v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
United States v. Topco Associates..... . . . . . . . . . . . . . . . . . . . . . 596
United States; Trevino v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
United States; Tropiano v............................... 975
United States; Troy v................................... 932
United States; Trudo v...... . ........................... 926
United States v. 201 50-lb. Bags of Furazolidone.......... 964
United States; Tyrone v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
United States v. United States Steel Corp.................. 917
United States; United States Steel Corp. v................. 917
United States; Upshaw v................................ 934
United States; Vicaro v................................. 936
TABLE OF CASES REPORTED CXI
Page
United States; Virginia National Bank v................... 1065
United States; Vuci v.................................... 1064
United States; Watson v................................. 993
United States; Waugh v................................. 932
United States; Webb v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1072
United States; Wells v................................... 995
United States; Welp v................................... 933
United States; White v . ... . ............. 926,976, 998, 1071, 1072
United States; Wilcox v................................. 917
United States; Wilkerson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
United States; Williams v . ........................ 954, 995, 1048
United States; Williamson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
United States; Willis v ................................ 924, 956
United States; Wilson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016, 1069
United States; Wing v. . . . .. . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 994
United States; Winkfield v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
United States; Winnebago Tribe of Nebraska v............. 1026
United States; Wion v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
United States; Woodard v............................... 931
United States; Woodford v............................... 992
United States; Wright v. . . . . . . . . . . . . . . . . . . .. . . . . . . .. . .. . 947
United States; Young v ............. . .............. 924,931,994
United States; Zambrano v.................. .. . . . .. . .. . . . 988
United State,; Zimmerman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
United States; Zovluck v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
U.S. Board of Parole; Alkes v........................... 931
U. S. Court of Appeals; Justice v.............. . ......... 914
U. S. Court of Appeals; Knight v........................ 973
U. S. Court of Appeals; Lewis v.......................... 957
U. S. Court of Appeals; Putnam v. . . . . . . . . . . . . . . . . . . . . . . . 986
U.S. Court of Appeals; WHDH, Inc. v................... 982
U.S. Court of Appeals Chief Judge; Albrecht v............. 1063
U.S. Court of Appeals Chief Judge; Garrison v............. 985
U.S. Court of Appeals Chief Judge; Paige v................ 986
U.S. Court of Appeals Chief Judge; Rojas v. ............... 1063
U.S. Court of Appeals Senior Judge ; Dixon v.............. 1033
U. S. District Court; Gaglie v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
U.S. District Court; Gibson v............................. 1063
U. S. District Court ; Ray v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
U. S. District Court; Shalla v. . . . . . . . . . .. . . . . . . . . . . . . . . . . . 1040
U.S. District Court Chief Judge; Acarino v ....... . . . . . . 956, 1049
U. S. District Court Chief Judge; Lemelson v. . . . . . . . . . . . . . 972
U. S. District Judge; Lauchli v ................... . ... 952, 1045
U.S. District Judge; Maurice A. Garbell, Inc. v...... . ..... 990
CXII TABLE OF CASES REPORTED
Page
U. S. District Judge; McCray v.......................... 952
U. S. District Judge; Medansky v........................ 986
U.S. District Judge; Mine Workers v..................... 970
U.S. District Judge; Moore v............................ 952
U.S. District Judge v. O'Bryan ........................ 964, 1049
U. S. District Judge; Parker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
U.S. District Judge; Picking v................. . ......... 1063
U. S. District Judge v. United States...................... 934
U. S. ex rel. See name of real party in interest.
U. S. Marshal; McCray v................................ 948
United States Steel Corp. v. Blair. . . . . . . . . . . . . . . . . . . . . . . . . 948
United States Steel Corp. v. Laird ....................... .
United States Steel Corp. v. United States ................ .
United States Steel Corp.; United States v ................ .
University Hill Foundation v. Commissioner .............. .
Upshaw v. United States ............................... ..
Urbaniak; ~1arnin v .................................... .
Utah Public Service Comm'n v. El Paso Natural Gas Co ... .
Utica Square National Bank of Tulsa v. Woodson ......... .
Valdez v. Black ........................................ .
Valmont Industries, Inc.; Enresco, Inc. v . ................ .
Vanderlaan v. Vanderlaan ............................... .
Van Nuys Publishing Co.; Thousand Oaks v ............... .
Vasquez v. Walsh ....................................... .
Vaughan v. Hufnagel. .................................. .
Vermont v. New York .................................. .
955
917
917
965
934
1072
1061
918
963
922
1051
1042
972
1041
983
Vermont Governor v. Kohn............................... 1034
Vicaro v. United States.................................. 936
Villa; Ha.II v ......................................... 914,1050
Virginia; Armstead v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Virginia; Cabbler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Virginia; Ferguson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
Virginia; Freeman v..................................... 919
Virginia; Love v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 994
Virginia; Lovisi v. . . . . . . . . . . . . . . . . . . . . . . . . . . 936, 998, 1048, 1076
Virginia; Lusby v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Virginia; Quick v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Virginia; Reid v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Virginia; Smitherman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Virginia Attorney General; Manard v..................... 982
Virginia Beach v. Howell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Virgini11 Impression Products Co. v. SCM Corp............ 936
Virginia National Bank v. United States... . . . . . . . . . . . . . . . . 1065
Virginia State Board of Elections v. Bufford.. . . . . . . . . . . . . . . 1035
TABLE OF CASES REPORTED
Vitnles; Immigration and Naturalization &-rvice v ......... .
Volpe v. D. C. Federation of Civic Assns .................. .
Volpe; Lamm v ........................................ .
Von Pappenheim v. Portland Boxing & Wrestling Comm'n .. .
Vuci v. United States ................................... .
Wade v. California ..................................... .
Waggoner v. California .................................. .
Wahl v. Carrier Mfg. Co ............................... .
Wainman v. Clark ...................................... .
Wainwright; Jackson v ................................. .
CXIII
Page
98.1
1030
1073
999
106-1
925
924
990
923
1068
Wainwright; Kimmons v................................. 1043
Wainwright; Oaks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 995
Walker v. Twomey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Wallace; Forbush v...................................... 970
Wallkill Prison Correctional Supt.; Logan v . .............. .
Walsh; Gross v . ....................................•....
Walsh; Vasquez v ...................................... .
Waltcnberg v. Supreme Court of Richmond County ........ .
Warden. See also name of warden.
948
917
972
1069
Warden; Gafford v...................................... 1019
Warden; Grindstaff v.................................... 956
Warden; Wheeler v ......•............................ 935, 1076
Ware; Pennsylvania v................................... 987
Warner v. Nebraska. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Warren County Circuit Court; Wood v.................... 1044
Washington; Agers v. .. . .. . . . . .. . . .. .. . . .. .. . . . .. . .. .. . . 927
Washington; Favro v.................................... 1040
Washington; Finister v................................... 927
Washington v. General Motors Corp...................... 1015
Washington; Moses v.................................... 914
Washington; Perryman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 982
Washington; Rabe v .................................. 313,913
Washington; Sheppard v. . . . . . . . . . . . .. . . .. . .. .. . .. . . . . . . . 936
Washington; Tonasket v.................................. 1038
Washington State Labor Council, AFlr-CIO v. Jertberg.... 1014
Watson v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 993
Watt v. Page. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Watts v. New Jersey.................................... 1018
Watts v. Tennessee............. . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Waugh v. United States. . . . .. . . . . .. .. . . . .. .. . . .. .. . .. . .. . 932
Wayne County v. Judges for 3d Judicial Cir. of Michigan.... 923
Webb v. United States................................... 1072
Weber v. Aetna Casualty & Surety Co..................... 913
Weddel v. California..................................... 1067
CXIV TABLE OF CASES REPORTED
Page
Weddel v. Craven......................................... 1067
Weddle v. Patuxent Institution Direct.or............ . . . . . . . 1036
Wehlnger v. California... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Weiser; Bullock v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912
Wellons; McDonald v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Wells v. United States................................... 995
Welp v. United States................................... 933
Westinghouse Credit Corp.; Security Savings & Loan Assn. v. 923
Westmoreland v. Mississippi............................. 948
Westwood Chemical, Inc. v. Owens-Corning Fiberglas Corp. . 917
W. F. Holt & Sons, Inc.; Ford Motor Co. v................. 1067
WHDH, Inc. v. Federal Com. Comm'n.................... 982
WHDH, Inc. v. U.S. Court of Appeals.................... 982
Wheeler v. Warden ................................... 935, 1076
Whipple; Moore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
Whitcomb v. Affeldt...................................... 1034
White; Stewart v. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . .. .. . . . 1038
White v. United States ................... 926,976,998, 1071, 1072
Whitehead v. Michigan................................. 928
Whitmore v. New York....... . .......................... 9.'i6
Wickline v. Brooks...................................... 981
Wiggins; Fair v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971
Wilbur-Ellis Co. v. The Captayannis "S".................. 923
Wilcox v. United States................................. 917
Wilkerson v. United States................................ 1071
Wilkins v. American Export Isbrandtsen Lines. . . . . . . . . . . . . 969
Will; Medansky v. . . . . . . . . . . . . . . . . . . . .. . .. . .. . . . .. . . . . . 986
Williams; Adams v .................................... 984, 1037
Williams v. Dill . . . .. . . . . . . . . . . . . .. . .. . . . . . . . . . . . . . . . . . . . 921
Williams; Ferguson v. .. . . . . . . . .. . .. . . . . . . . . . . . . . . . . . . . . . 1036
Williams v. Patuxent Institution Director................... 1074
Williams v. Rogers. . . .. . . . . . .. . . . . . . . . .. . . . .. . .. . . . . . . . . 926
Williams v. United States .................... . .. . .. 954,995, 1048
Williamson v. United States.............................. 1026
Willis v. Prudential Insurance Co.................... . .... 318
Willis v. State Board of Control. . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Willis v. United States. . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . 924, 956
Wilson; Blankenship v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Wilson; Gooding v...................................... 518
Wilson; Northern Natural Gas Co. v ................... 949, 1048
Wilson v. United States .............................. 1016, 1069
Wimberley v. Laird............ . ........... ... .......... 956
Wing v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 994
Wingo; Barker v ........................ . ........ . .. . 914,985
TABLE OF CASES REPORTED CXV
Page
V11ingo; Cunningham v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948, 999
Winkfield v. United States............................... 929
Winnebago Tribe of Nebraska v. United States.... . . . . . . . . . 1026
Winston-Salem; Garren v................................ 1052
Wion v. United States................................... 932
Wisconsin; Amato v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 981
Wohlgemuth; Charleston v.............................. 970
Wolff v. Korholz........................................ 922
Wolff; Nicholson v...................................... 1043
Wolkomir v. Federal Labor Relations Council.............. 920
Wood v. Circuit Court of Warren County.................. 1044
Wood v. Idaho. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Woodard v. United States............................... 931
Woodford v. United States............................... 992
Woods v. Society for the Propagation of the Faith... . . . . . . . 971
Woodson; Utica Square National Bank of Tulsa v.......... 918
Woodsum v. Boyd....................................... 912
Wrenn v. North Carolina................................ 1064
Wright v. Bateson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Wright v. Richardson ................................ 208, 1033
Wright; Richardson v ................................ 208; 1033
Wright; Teague v....................................... 1075
Wright v. United States................................. 947
Wyatt v. Ohio.......................................... 993
Wyman v. Almenares.................................... 944
Wyoming; Alcala v ............... ,...................... 997
Yanich v. Mummert.................................... 957
Yeager; Castro v....................................... 1019
Yeager; Gibbs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 993
Yeager; Laws v........................................ 976
Yeager; Magee v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
Young v. Alabama...................................... 976
Young v. Maryland. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Yn11ng v. United States ............................ 924,931 , 994
Yumen; Sumida v ................................ 964,972, 1048
Zambrano v. United States.............................. 988
Zim Israel Navigation Co.; Tarabocchia v................. 934
Zimmerman v. Unitro States............................. 926
Zovluck v. United States....... . . . . . . . . . . . . . . . . . . . . . . . 1043
TABLE OF CASES CITED
Page
Abernathy v. Carpenter,
373 U. S. 241 541-542
Acker v. Reeves, 229 Ind.
126
Adderley v. Florida, 385
24
U. S. 39 459
Addonizio v. United States,
405 U. S. 936 964
Addyston Pipe & Steel v.
United States, 85 F. 271;
175 U.S. 211 273,608,616,618
Adickes v. Kress & Co., 398
U. S. 144 543
Aero Mayflower v. Georgia
Pub. Serv. Comm'n, 295
U. S. 285 715
Aero Mayflower v. Railroad
Comm'rs, 332 U. S. 495
715,720
Aetna Ins. v. Kennedy, 301
U.S. 389 188
Affeldt v. Whitcomb, 319 F.
Supp. 69 333, 358
Alabama Power v. I ckes,
302 U. S. 464 733
Alderman v. Diament, 7
N. J. L. 197 177
Alexander v. Swank, 404
U.S. 282 971
Allegheny Airlines v. Sills,
110 N. J. Super. 54 711
Allen v. State Bd. of Elections,
393 U.S. 544 1001, 1005
Allied Stores v. Bowers, 358
U.S. 522 335
Alvarado v. Schmidt, 317
F. Supp. 1027 551
American Communications
Assn. v. Douds, 339 U. S.
382 685,696
American Fire & Cas. Co. v.
Finn, 341 U. S. 6 704-705
American Surety v. Baldwin,
287 U.S. 156 66,89, 178
Anderson v. Winsett, 217
Tenn. 564 133
Page
Andrews v. Cody, 327 F.
Supp. 793 334
Arizona v. Attakai, Cr. No.
4098, Coconino County 905
Armour & Co. v. Wantock,
323 U. S. 126 229
Armstrong v. Manzo, 380
U. S. 545 84
Arneson v. Denny, 25 F. 2d
988 906
Arsenault v. Massachusetts,
393 U. S. 5 291
Ashe v. Swenson, 397 U. S.
436 14,130,132, 1047
Ashton v. Kentucky, 384
U. S. 195 527,529,533
Ashwander v. TVA, 297
U. S. 288 465,502,633
Associated Industries v.
Ickes, 134 F. 2d 694 732
Atlantic C. L. R. Co. v. Locomotive
Engineers, 398
U. S. 281 20
Atlas Credit Corp. v. Ezrine,
25 N. Y. 2d 219 196
Austin v. Commissioner, 298
F. 2d 583 105
Avery v. Georgia, 345 U. S.
559 631
Bachellar v. Maryland, :m7
U.S. 564 523
Baggett v. Bullitt, 377 U. S.
360 521,533,680,695-698
Baggs v. Martin, 179 U. S.
206 702- 705
Baines v. Danville, 337 F. 2d
579 556
Baird v. State Bar of Ariz.,
401 U.S. 1 680
Baker v. Carr, 369 U. S.
186 30,32,541, 732,980
Baldwin v. New York, 399
U.S. 66 635
Ballard v. United States, 329 u. s. 187 634, 637- 638
cxvrr
CXVIII TABLE OF CASES CITED
Page
Baltimore & 0. R. Co. v.
United States, 298 U. S.
349 383,386
Barber v. Page, 390 U. S.
719 942
Barlow v. Collins, 397 U. S.
159 733-734, 741,755,758
Barnes v. Merritt, 376 F. 2d
8 551
Barr v. Columbia, 378 U. S.
146 961
Barrows v. Jackson, 346
U. S. 249 445-446
Barry v. Cunningham, 279
U. S. 597 30--33
Batchelet v. DeKalb Cir.
Ct., 248 Ind. 481 24
Bates v. Nelson, 393 U. S.
16 484
Baxstrom v. Herold, 383
U. S. 107 508, 511-512
Baxter, Inc. v. Coca-Cola
Co., 431 F. 2d 183 263
Beaman v. Circuit Ct. of
Pike County, 229 Ind.
190 24
Bell v. Burson, 402 U. S.
535 653,656-657,664
Bell v. Maryland, 378 U. S.
226 724
Bell v. Tsintolas Realty, 139
U. S. App. D. C. 101 88
Bell v. United States, 349 u. s. 81 946-947
Bellows v. Bowlus, 83 Ohio
App. 90 185
Benton v. Maryland, 395
U. S. 784 130--131, 1047
Berger v. New York, 388
U.S. 41 1027
Bernhardt v. Polygraphic
Co., 350 U. S. 198 83,526
Besser Mfg. Co. v. United
States, 343 U. S. 444 576
Betts v. Brady, 316 U. S.
455 484-486,489-492
Bianchi v. Morales, 262
U. S. 170 68, 89-90
Bibb ,,_ Navajo Freight
Lines, 359 U. S. 520 721
Bill Baxter, Inc. v. Coca-
Cola Co., 431 F. 2d 183 263
Page
Billings v. Truesdell, 321
U. S. 542 49
Birnbaum v. Trussell, 371
F. 2d 672 551
Bishop v. Colaw, 450 F. 2d
1069 1032
Bivens v. Six Agents, 403
U. S. 388 547,966
Black Watch Farms v. Dick,
323 F. Supp. 100 555
Blair v. Commissioner, 300 u. s. 5 410,423
Blott v. Blott, 227 Iowa
1108 176
Board of Ed. v. Barnette,
319 U. S. 624 687,697
Boddie v. Connecticut, 401 u. s. 371 184-185
Bollman, Ex parte, 4 Cranch
75 47
Bond v. Floyd, 385 U. S.
116 682,696
Borge v. Commissioner, 405
F. 2d 673 408
Bowersock Mills v. Commissioner,
172 F. 2d 904 110
Bowman v. Chicago & N. W.
R. Co., 125 U. S. 465 723
Boyce Motor Lines v.
United States, 342 U. S.
337 162-163
Boyd v. Clark, 287 F. Supp.
561 372,374,376,390
Boyd v. Smith, 435 F. 2d
153 2
Boyd v. United States, 116
U.S. 6W 008
Boyle v. Landry, 401 U. S.
77 560
Bradwell v. State, 16 Wall.
130 640
Brady v. Maryland, 373
U. S. 83 151,153
Brady v. United States, 397
U. S. 742 185--187
Branch, Ex parte, 234 Mo.
466 166
Brandenburg v. Ohio, 395
U. S. 444 458-460, 688,694
Bransford, Ex parte, 310
U. S. 354 903-904
Breen v. Kahl, 419 F. 2d
1034 1032
TABLE OF CASES CITED CXIX
Page
Breen v. Selective Service
Bd., 396 U. S. 460 372 ,
374-377, 384, 387-391
Brinkerhoff-Faris Co. v. Hill,
281 U. s. 673 960
Broadcasters , Inc. v. Morristown
Broadcasting, 185 F.
Supp. 641 264
Brookhart v. Jan.is, 384 U.S.
1 942
Brooks v. Clifford, 409 F. 2d
700 39
Brotherhood. For labor union,
see name of trade.
Brown v. Allen, 344 U. S.
443 516,636-637
Brown v. Brown, 150 Tenn.
89 351
Brown v. Hows, 163 Tenn.
178 348,351--352
Brown v. Louisia.na, 383 u. s. 131 459-460
Brown v. Southall Realty,
237 A. 2d 834 69
Brown Chemical v. Meyer,
139 U. S. 540 576
Brown Shoe v. l.rnited
States, 370 U. S. 294
569 570,578
Bruton v. United States, 391
U. S. 123 428--
433, 437, 940, 942-943
Buchanan v. State, 41 Wis.
2d 460 512
Buchanan v. Warley, 245
U. R. 60 544
Budd v. Maroney, 398 F. 2d
806 284
Bufford v. Holton, 319 F.
Supp. 843 334
Bullock v. Carter, 405 U. S.
134 336-337,362
Bunce ,.. Wilhams, 159 F.
Supp. 325 906
Burg v. Canniffe, 315 F.
Supp. 380 333
Burgett v. Texas, 389 U S.
109 480-484,491-497
Burlington Truck Lines v.
United States, 371 U. S.
156 249-250
Burnet v. Leininger, 2~5
U. S. 136 423
Page
BurnPt v. Wells, 289 U. S.
670 423
Burns v. Ohio, 360 r. R
252 960
Burns v. Richardson, 3R4 u. s. 73 1202
Burton v. l'nited States,
196 U. S. 283 633
Bussie v. Long, 383 F. 2d
766 542
Butler v. Burke, 360 F. 2d
118 284
Cafeteria Workers v. Mr-
Elroy, 367 U. S. 886 650
Caldwell v. Shelton, 32
Tenn. App. 45 352
California v. Stewart, 383
U. S. 903 1021
California D ept. of Human
Resources v. Java, 402 u. s. 121 551,674
California Rights Org. v.
Superior Court, 5 Cal. 3d
730 206
Calvert Cliffs' Com. v. AEC,
146 U. S. App. D. C. 33 747
Camanehe, The, 8 Wall . 448 742
Cameron v. Johnson, 390
U. S. 611 541, 556
Caminetti v. United States,
242 l.J. s. 470 947
Cantwell v. Connerticut, 310
U. S. 296 522
Capitol Greyhound Lines v.
Brice, 339 F. S. 542 715--717
Cardinale v. Louisiana, 394
U.S. 437 658
Carey v. Settle, 351 F. 2d
483 325
Carnley v. Cochran, 123 80.
2d 249 501
Carnley v. Cochran, 369
U. s. 506 3, 500---501
Carrington v. Rash, 380 u. s. 89
141,326,336,343,350-
352, 355, 362, 655--656
Carswell v. Wainwright, 413
F. 2d 1044 325
Carter v. Dies, 321 F. Supp.
1358
Carter v. Greenhow,
U. S. 317
146
114
542
CXX TABLE OF CASES CITED
Page
Carter v. Jury Comm'n, 396
U. S. 320 632-633, 636-637
Carter v. Stanton, Ko. IP
70-C-124 (SD Ind. 1970) 670
Cartwright v. McGown, 121
Ill. 388 663
Cates v. Haderlein, 342
U.S. 804 206
Central Cuba Sugar Co. v.
Commissioner, 198 F. 2d
214 408
Central Elec. & Gas v.
Stromsburg, 192 F. Supp.
280 22
Central Nat. Bk. v. Standard
Loan, 5 Ohio App. 2d
101 190
Central R. Co. of ~- J. v.
Martin, 19 F. Supp. 82 22
Chaapel v. Cochran, 369
U. S. 869 48
Chalker v. Birmingham &
N. W. R. Co., 249 U. S.
522 340
Chambers v. Baltimorf & 0.
R. Co., 207 U. S. 142 84
Chaplinsky v. New Hampshire,
315 U. S. 568
522-525, 528-537
Chapman v. California, 386
U. S. 18 296,432- 433,437
Chiittanooga Foundrv v.
Atlanta, 203 U. S. 390
263, 273- 274
Cheff v. Schnackenberg, 384
U. S. 373 11
Cheley v. Parham, 404 U. S.
878 1004
Chicago v. Atchison, T. &
S. F. R. Co., 357 U. S.
77 734
Chica.go Bd. of Trade v.
United States, 246 U. S.
231 606-607
Chime! v. California, 395
U. S. 752 659
Cipriano v. Houma, 395
U.S. 701
143,336-337,355-357
Citizen Pub. Co. v. United
St.ates, 394 U. S. 131 608
Page
Citizens Com. for Hudson
Valley v. Volpe, 425 F. 2d
97 736,739,760
Citizens to Preserve Ovrrton
Park v. Volpe, 401
U. S. 402 734
City. See name of city.
Clark v. Gabriel, 393 U. S.
256 371-376,384-391
Clark v. Poor, 274 U. S.
554 715,720
Clay v. Unitrd States, 403
U. S. 698 386, 1009- 1010
Clements v. Hull, 35 Ohio
St. 141 178
Cleveland Leader Printing
v. Green, 52 Ohio St. 487 184
Cline v. Frink Dairy, 274
U. S. 445 162, 692
Coates v. Cincinnati, 402
U. S. 611 S21
Cocanower v. :Marston, 318
F. Supp. 402 334
Coghlan v. Miller, 106 Ore.
46 70
Cohen v. Beneficial Loan
Corp., 337 U. S. 541 79, 1021
Cohen v. California, 403
U. S. 15 316,520,S23,S37
Cole v. Arkansas, 333 U. S.
196 315
Cole v. Ridiardson, 397
U. S. 238 684-685, 687
Coleman ,. . Alabama, 399
U.S. 1 279-287,290,292-297
Colgate v. Harvey, 296 U.S.
404 723-724
Colombo v. New York, 405
U. S. 9 1022
Commissioner v. Duberstein,
363 U. S. 278 105
Commissioner v. Lester, 366
U. S. 299 115, 405,423
Commissioner v. Lincoln
Sav. & Loan, 403 U. S.
345 310
Commissioner v. Morris
Trust, 367 F. 2d 794
401, 418-419
Commissioner v. Newman,
159 F. 2d 848 399
Commissioner v. Sunnen, 333
U. S. 591 404,423
TABLE OF CASES CITED CXXI
Page
Commis.s ioner v. Wilcox, 327
U. S. 404 416,425
Commis.~ioner of Internal
Revrnue. See C'ommis -
sioner.
Commonwealth. See also
name of Commonwealth.
Commonwealth v. Alli,:,on,
227 Masi;. 57 447
Commonwealth v. Baird,
355 l\fass. 746 440 ,
442, 449-452, 462-463
Commonwealth v. Corbett,
307 Mass. 7 449
Commonwealth EdiRon v.
Allis-Chalmers Mfg. Co.,
314 F. 2d 564 263
Cone v. West Virginia Paper
Co., 330 U.S. 212 112-113
Conley v. Gibson, 355 U. S.
41 322, 326-328
Connally v. General Constr.
Co., 269 U. S. 385
162,685,692
Connell v. Higginbotham,
403 U. S. 207
680,686,695-697
Construction Laborers v.
Curry, 371 U. S. 542 1021
Continental Baking v. Woodring,
286 U. S. 352 715
Conway v. Oliver, 429 F. 2d
1307 321,
Cook v. Gilbert, 8 Serg. &
R. 567 195
Cook v. Pennsvlvania 97
U. S. 566 . ' 724
Cooper v. Hutchinson, 184
F. 2d 119 556
Cooper ,·. Pate, 378 U. S.
546 321, 324-:325
Cooper v. Reineke, 333 F.
2d 608 284
Coppedge v. United States,
369 U. S. 438 77
Corfield v. Coryell, 6 F. Cas.
546 545
Corliss v. Bowers, 281 U. S.
376 403,424
Cox v. Louisiana, 379 U. S.
536 467,527,529,532-533
Page
Cramp v. Bd. of Pub. Instruction,
368 U. S. 278
680--681,685,695
Crandall v. Nrvada, 6 Wall.
35 338,340, 711 - 713,722,724
Craycroft v. Ferrall, 397
U. S. 335, 408 F. 2d 587 38
Cross v. Harris, 135 U. S.
App. D. C. 259 512
Crossrn v. Campbell, 102
Ore. 666 6f,
Crowther v. Seaborg, 312
F. Supp. 1205 738
Cruz v. Hauck, 404 F S.
59 966
Cutler Corp. v. Latshaw,
374 Pa. 1 195
Dabney, In re, 71 Cal. 2d 1 4~1
Dailey v. Quality Srhool
Plan, 380 F. 2d 484 263
Damico v. California, 389
l'. S. 416 551, 6il
Dandridge v. Williams, 397
l T. R. 471 142,326,551,671
Danica Enterprises v. Commissioner,
395 U. S. 933 408
Daniels v. Allen, 344 U. S.
443 960
Darr v. Burford, 339 lT. S.
200 51
Dartmouth Collegf' Trust('PR
v. Woodward: 4 Wheat.
518 74:3
Data ProC'essing Service v.
Camp, 397 U. S. 150 733-734,
738, 741 , 755, 757- 758
Davis v. Mann, 377 U. S.
678 42
Davis v. \Verhsler, 263 U. S.
22 960
DPnnis v. United States, 341
F . S. 494 694
Denny v. Sumner County,
1;-34 Tenn. 468 352
Desist v. United States, 394
U. S. 244 286-287
DeStefano v. Woods, 392
U. S. 631 286-287
DeToro v. Pepersack, 332 F.
2d 341 284
D. H. Overmyer Co. v. Frick
Co., 405 U. S. 174
193, 200--202, 971
CXXII TABLE OF CASES CITED
Page
Dickinson v. United States,
346 U. S. 389 1011
District of Columbia v. Clawans,
300 U.S. 617 77
District of Columbia v.
Hunt, 82 U.S. App. D. C.
159 166
D. C. Federation of Civic
Assns. v. Airis, 129 U . S.
App. D. C. 125 1031
D. C. Federation of Civic
Assns. v. Volpe, 140 U. S.
App. D. C. 162 1031
Dixie Ohio Express v. State
Rev. Comm'n, 306 U. S.
72 715
Dr. Miles Medical Co. v.
Park & Sons, 220 U. S.
373 247
Dombrowski v. Pfister, 380 u. s. 479 521,533,556
Doud v. Hodge, 350 U. S.
485 541
Douglas v. Alabama, 380
U. S. 415 942
Douglas v. California, 372
U.S. 353 70,82,281,960
Douglas v. Jeannette, 319
U.S. 157 544
Douglas v. Sigler, 386 F. 2d
684 325
Douglas v. Willcuts, 296 rr s. 1 ~3
Dows v. Chicago, 11 Wall.
108 543
Drueding v. Devlin, 380
U. S. 125 !i37- 33&
Duba v. Schuetzle, 303 F.
2d 570 733
Duncan v. Louisiana, 391
U. S. 145 633,642
Dunn v. Blumstein, 405
U. S. 330 634, 724, 1036
Durham v. United States,
401 U. S. 481 1005
Dutton v. Evans, 400 U. S.
74 942-943
Eagles v. Samuels, 329 U. S.
304 39
Earl Millikin, Inc. v. Allen,
21 Wis. 2d 497 69
Edelman v. California, 344
U. S. 357 166
Page
Edwards v. California, 314
U. S. 160 162-163,338, 724
Edwards v. Habib, 130 U. S.
App. D. C. 126 69, 89
Edwards v. South Carolina,
372 U. S. 229 459
Eggen v. Wetterborg, 193
Ore. 145 87
Eisen v. Eastman, 421 F. 2d
560 542,546,551
Elfbrandt v. Russell, 384
U.S. 11 680
Eli Lilly & Co. v. United
States, 178 Ct. Cl. 666 409
Ellis v. United States, 356
U. & 6~ n
Elmore v. State, 15 Ga.
App. 461 525, 535
England v. l\'ledical Examiners,
375 U. S. 411 62,286
Entelman v. Hagood, 95 Ga..
390 71
Environmental Defense
Fund v. Corps of Engineers,
324 F. Supp. 878 760
Environmental Defens e
Fund v. Corps of Engineers,
325 F. Supp. 728
739,760
Environmental Defense
Fund v. Hardin, 138 U.S.
App. D. C. 391 738-739, 760
Environmental Defens e
Fund v. HEW, 138 U. S.
App. D. C. 381 747, 760
Environmental Defense
Fund v. Ruckelshaus, 142
U. S. App. D. C. 74 747
Epps v. Logan, No. 9137
(WD Wash. 1970) 334
Equipment Corp. v. Primos
Vanadium, 285 Pa. 432 195
Escalera v. New York Housing
Auth., 425 F. 2d 853 551
Eskridge v. Washington
Prison Bd., 357 U. S. 214 286
Estep v. United States, 327
U. S. 114 372- 373
Eubanks v. Louisiana, 356
U.S. 584 632
Evans v. Cornman, 398 U.S.
419 141,336,343,355-356
TABLE OF CASES CITED CXXIII
Page
Ex parte. See name of
party.
Fairmount Glass v. Cub
Fork Coal, 287 U. S. 47-1 113
Farmers' Loan & Trust v.
Bowers, 98 F. 2d 794 105
Fashion Originators' Guild
V. FTC, 312 U. s. 457 610
Fay v. New York, 332 U.S.
261 48,642,644
Fay v. Noia, 372 U. S. 391 47,
51, 185-186, 516-517
FCC v. Sanders Bros. Radio
Station, 309 U. S. 470
732,734,737
FPC v. United Gas Co., 393
U.S. 71 250
FTC v. Brown Shoe, 384
U.S. 316 242
FTC v. Consolidated Foods,
380 U. S. 592 569
FTC v. Curtis Pub. Co.,
260 U. S. 568 241
FTC v. Gratz, 253 U. S.
421 241-243
FTC v. Procter & Garnblc,
386 u. s. 568 568
FTC v. Raladam Co ., 283
U. S. 643 241-244
FTC v. R. F. Keppel &
Bro., 291 U. S. 304 242-244
FTC v. Sinclair Refining,
261 U. S. 463 241
Fein v. Selective Service Syst.
em, 405 U. S. 365 1014
Ferguson v. Moore-McCormack
Lines, 3S2 U. S. 521 116
Ferguson v. Williams, 330 F.
Supp. 1012 334
Ferrell v. Dallas School
Dist., 392 F. 2d 697 1032
Fidelity Union Tr. v. Field,
311 U. S. 169 526
First Nat. Bk. v. White, 220
Mo. 717 176
Fish v. State, 124 Ga. 416
525-526,535
Fitzpatrick v. Bd. of Election
Comrn'rs (ND Ill.
1970) 334
Flast v. Cohen, 392 U. S.
83 732,741,755
Page
Fletcher v. Young, 222 F.
2d 222 328
Florida. Lime Growers v.
Jacobsen, 362 U. S. 73 541
Fong Foo v. United States,
369 U. S. 141 131
Fontham v. McKeithen, 336
F. Supp. 153 334,344
Ford Motor Co. v. United
States, 405 U. S. 562 622
Fortson v. Dorsey, 379 U.S.
433 1202
Frederick Dean, 18 Crim.
App. 133 170
Freedman v. Maryland, 380
U. S. 51 1024
Fret>man v. Flake, 448 F. 2d
258 1032
Freeman v. Hewit, 329 U.S.
249 712,722
Friedenthal v. Thompson,
146 Ore. 640 66,88
Frost , •. C-0rp. C-Omm'n, 278
U. S. 515 308
F. S. Royster Guano Co. v.
Virginia, 253 U. S. 412 326
Furnish v . .Medical Examiners,
257 F. 2d 520 554,559
Gardner v. California, 393
U. S. 367 77
Garner v. Bd. of Public
Works, 341 U. S. 716 695
Garner v. Louisiana, 368
U. S. 157 315
Garrity v. New Jersey, 385
U. S. 493 341,693
General Purchase C-Orp. v.
Keil Real Est., 35 Del.
531 176
Georgia v. Evans, 316 U. S.
159 273
Georgia v. Pennsylvania R.
Co., 324 U. S. 439
259--261,268-273
Georgia v. Tennessee Copper,
206 U. S. 230 258,277
Giboney v. Empire Storage,
336 U. S. 490 458,467
Gibson v. Mississippi, 162
U. S. 565 629
Gideon v. Wainwright, 372
U.S. 335 2,280,286,
288, 476, 481-484, 486,
488-494, 497, 501-503
CXXIV TABLE OF CASES CITED
Page
Giglio v. United States, 405
U. S. 150 643
Gilbert v. California, 388
U. S. 263 281
Gilbert v. Minnesota, 254 u. s. 325 724
Gilday v. Sea.fa.ti, 428 F. 2d
1027 480,483
Gillespie v. Commissioner,
54 T. C. 1025 97
Gillette v. United States, 401
U.S. 437 54
Gilmore v. Lynch, 319 F.
Supp. 105 321
Glasser v. United States, 315
U. S. 60 637
Glicker v. Michigan Liquor
Comm'n, 160 F. 2d 96 551
Glona v. American Guarantee
Co., 391 U. S. 73 73,652
Goetsch v. State, 45 Wis. 2d
285 515
Goldberg v. Kelly, 397 U. S.
254 185,208--
223, 227, 551, 651, 949
Golsen v. Commissioner, 54
T. C. 742 97
Gomillion v. Lightfoot, 364 u. s. 339 70
Gonzales v. United States,
348 U. S. 407 380,386
Goodyear v. Stone, 169 Ohio
St. 124 190
Graham v. Richardson, 403
U. S. 365 335,340, 724
Grant Timber v. Gray, 236
U. S. 133 67-68
Gray v. Sanders, 372 U. S.
368 140
Great Lakes Dredge v. Huffman
, 319 U. S. 293 543
Green v. United States, 355
U. S. 184 14,130,968
Greene v. McElroy, 360 u. s. 474 218,382,386
Gregory v. Chicago, 394 u. s. 111 315,527
Griffin v. Breckenridge, 403
U. S. 88 725
Griffin v. County School
Bd., 377 U. S. 218 42
Griffin v. Griffin, 327 U. S.
220 185
Page
Griffin v. Illinois, 351 U. S.
12 77,959-960
Griswold v. Connecticut, 381
U. S. 479 443-
448, 452-454, 457, 460,
463-464, 469, 472, 651
Groppi v. "Wisconsin, 400
U. S. 505 442
Grover & Baker Co. v. Radcliffe,
137 U. S. 287 178
Gusik v. Schilder, 340 U. S.
128 40-41,46,51,53
Gustavsson Contracting Co.
v. Floete, 278 F. 2d 912 733
Gutknecht v. United States,
396 U. S. 295 373
Gylfe, The v. The Trujillo,
209 F. 2d 386 742
Hadden v. Rumsey Products,
196 F. 2d 92 177
Hadnott v. Amos, 320 F.
Supp. 107 334
Hague v. CIO, 307 U. S.
496 542,544,546-547
Haines v. K erner, 404 U. S.
519 325 910
Hall Y. Beals, 396 U. S. 45'
82,333,356
Halliday v. United States,
394 U. S. 831 286
Hamilton v. Alabama, 368
U. S. 52 281,283,291,293
Hamman v. United States,
267 F. Supp. 420 264
Hammond v. Lenfest, 398
F. 2d 705 39, 41
Hanko; v. State, 195 So. 2d
49 168
Hanover Shoe v. United
Shoe Machinery, 392 U.S.
481 263
Hardin v. Kentucky Utilities,
390 U. S. 1 734
Harman v. Forssenius, 380
U.S.528 63,341,352-353,726
Harper v. Virginia Bd. of
Elections, 383 U. S. 663 73,
82, 142-147, 335--337
Harrington v. California,
395 U. S. 250 430-433
Harris v. Barone, 147 Conn.
233 555
TABLE OF CASES CITED CXXV
PagP
Harris v. New York, 401 u. s. 222 482
Harris v. Washington, 404
U.S. 55 1022
Harrison v. Schaffner, 312
U. S. 579 404,411,423
Hart v. United States, 391 u. s. 956 980
Harvey v. Mississippi, 340
F. 2d 263 157
Hascall v. Hafford, 107
Tenn. 355 352
Hatch v. Stitt, 66 Pa. 264 195
Hawaii v. Anduha, 48 F. 2d
171 157,166
Hawk, Ex parte, 321 U. S.
114 50
Headen v. Fnited States, 115
U.S. App. D. C. ~l 2~
Headley v. Selkowitz, 171
So. 2d 368 158
Heiner v. Donnan, 285 1'. S.
312 350
Helson & Randolph v. Kentucky,
279 U. S. 245 723,725
Helvering v. Clifford, 309
U.S. 3.31 423
Helvering v. Eubank, 311
U. S. 122 423
Helvering v. Fitch, 309 lT. S.
149 423
Helvering v. Horst, 311 1'. S.
112 404,411,416,423
Helvt>ring v. Wilshire Oil,
308 U. S. 90 114
Hendrick v. Maryland, 235
U. S. 610 712,715
Henry v. Missis,;ippi, 379
U. S. 443 961-963
Hernandez v. Texas, 347
U. S. 475 629,632
Herndon v. Lowry, 301 F. S.
242 162,52~
Hicklin v. Coney, 290 U. R.
169 715
Hicks v. District of Columbia,
383 U. S. 252 166
Hill v. Burke, 289 F. Supp.
921 512
Hill v. California, 401 11. S.
797 658-659
Hill v. Chicago & Evanston
R. Co., 140 U.S. 52 1021
Page
Hill v. Martin, 296 U. S.
393 21 ,554-555,558-559
Hill v. Texas, 316 l.'. S. 400 632
Hirota v. MacArthur, 335 u. s. 876 48
Hite v. State, 17 Tenn. 357
129-130
Hoag v. New Jersey, 356
U.S. 464 968
Hobbs, Ex parte, 280 l'. S.
168 903
Hoeper v. Tax Comm'n, 284
U. S. 206 423
Hoge v. Bolsinger, 311 F. 2d
215 326
Holmes v. United States, 391
U. S. 936 980
Holt v. Indiana Mfg. Co.,
176 U. S. 68 542
Honchok v. Hardin, 326 F.
Supp. 988 760
Hoopes v. Union Oil, 374 F.
2d 480 263
Hoover Design Corp. v.
NLRB, 402 F . 2d 987 125
Hornbeak v. Hamm, 393
U.S.9 542
Hosack v. Smiley, 276 F.
Supp. 876 695
Houghton v. hafer, 392
U. S. 639 325
Howard v. Craven, 446 F.
2d 586 480
Howard v. Higgins, 379 F.
2d 227 542
Howe v. Brown, 319 F.
Supp. 862 334
Howe Scale Co. v. Wyckoff ,
Seamans & Brnedict, 198
U.S. 118 576
Hoyt v Florida, 368 U. S.
57 635,639,641-643
Huddlf'ston v. Dwyer, 322
U. S. 232 83
Hurbnrr v. Statr, 33 Wis.
2d 505 510-513
Hull , Ex parte, 312 U. S.
546 321
Hurtado v. California., 110
U. S. 516 633,635
Idlewild Liquor Corp. v. Epstein,
370 U. S. 713 541
CXXVI TABLE OF CASES CITED
Page
Illinois v. Allen, 397 U. S.
337 185
Tllinois v. Commonwealth
Edison, 375 U. S. 834 263
Imbesi v. Commissioner, 361
F. 2d 640 105,112
In re. See name of party.
Insurance Co. v. Morse, 20
Wall. 445 187
Internal Revenue Service.
See Commissioner.
International. For I ab or
union, see name of trade.
International Salt v. United
States, 332 U. S. 392
573,575,578
Interstate Busses Corp. v.
Blodgett, 276 U. 8. 245 715
Interstate Transit v. Lindsev,
283 U. S. 183 715
Investment Co. Institute V.
Camp, 401 U. S. 617 246
Irvin v. Dowd, 366 U. S.
717 1060
Izaak Walton League v.
Macchia, 329 F. Supp. 504 760
Izaak Walton League v. St.
Clair, 313 F. Supp. 1312
739,760
Jackson v. Denno, 378 F. S.
368 286,
288, 296, 434---435, 940
Jackson v. Dorrier, 424 F.
2d 213 1032
Jackson v. State, 14 Ga.
App. 19 525--526, 535
Jacobson v. Massachusetts,
197 u. s. 11 454
James v. United States, 366
U. S. 213 405,414,416,425
Javins v. First Nat. Realty,
138 U. S. App. D. C. 369
84,87
Jenkins v. McKeithen, 395 u. s. 411 382
Jenness v. Fortson, 403 U.S.
431 143,145,147
John Hancock Ins. v.
NLRB, 89 U. S. App.
D. C. 261 122, 125
Johnson v. Avery, 393 U. S.
483 7,321,325
Johnson v. Florida, 391 U.S.
596 1001, 1005
Page
Johnson v. New Jersey, 384 u. s. 719
281-282, 284, 286--287
Johnson v. State, 9 Md.
App. 166 481
Johnson v. State, 202 Ro. 2d
852 157,161,163,169
Johnson v. United States,
333 U. S. 10 169
Johnson v. United States,
19 U. S. C. M. A. 407 44
Johnson v. Zerbst, 304 U. S.
458 3, 186,499-502
Johnston v. Luna, 338 F.
Supp. 355 142
Jones v. Georgia, 389 U. S.
24 632
Jones v. John Hancock Ins.,
289 F. Supp. 930 176
Jones v. Mayer Co., 392
U. S. 409 544, 549
Jordan v. United States, 133
U. S. App. D. C. 102 1060
Joseph v. United States, 404
U. S. 820 381,386
Kake v. Egan, 80 S. Ct. 33 1203
Kane v. New .Jersey, 242
U.S. 160 715
Kansas v. Colorado, 206
U.S. 46 258
Kansas City Power & Light
v. McKay, 96 U. S. App.
D. C. 273 733
Katz v. United States, 389 u. s. 347 1027, 1029-1030
Katzenbach v. Morgan, 384
U. S. 641 48
Kauffman v. Dreyfus Fund,
434 F. 2d 727 263
Kelley Co. v. Commissioner,
326 U. S. 521 110
Kelly, In re, 401 F. 2d 211 39
Kelly v. Patterson, 331 F.
2d 753 97
Kenney v. Lenon, 425 F. 2d
209 293
Kent v. Dulles, 357 U. S.
116 338,724
Keogh v. Chicago & N. W.
R. Co., 260 U. S. 156 260,272
Kepner v. United States,
195 U. S. 100 131
Keppel v. Donovan, 326 F.
Supp. 15 334
TABLE OF CASES CITED CXXVII
Page
Keyishian v. Bd. of Regents,
385 U. s. 589 680
Kine v. Forman, 404 Pa. 301 195
King v. Saddleback College
Dist., 445 F. 2d 932 1032
King v. Smith, 392 U. S.
309 551,674
Kitchens v. Smith, 401 U. S.
847 480,481,488,501
Klopfer v. North Carolina,
386 u. s. 213 1022
Knetsch v. United States,
364 u. s. 361 115, ;{99
Knight v. Bd. of Regents,
269 F. Supp. 339, 390 u. s. 36 679, 682, 695-696
Kohn v. Davis, 320 F. Supp.
246 334
Kolden v. Selective Service
Bd., 397 U. S. 47 374
Korematsu v. United States,
323 u. s. 214 73, 326
Kovacs v. Cooper, 336 U. S.
77 651
Kramer v. Union School
Dist., 395 U. S. 621
82, 143, 335-337, 342-
343, 356-357, 362
Krulewitch v. United States,
336 U. S. 440 938--940, 944
Kwong Hai Chew v. Colding,
344 U. S. 590 383
Labat v. Bennett, 365 F. 2d
698 637
Labor Board. See NLRB.
Labor union. See name of
trade.
Landry v. Boyle, 393 U. S.
220 1001, 1004
Lane v. Brown, 372 U. S.
477 77
Langnes v. Green, 282 U. S.
531 202
Lanzetta v. New .Jersey, 306
U. S. 451 162, 692
Latham v. Crouse, 320 F. 2d
120 284
Law Students Council v.
Wadmond, 401 U. S. 154
680-682,684, 696
Laxalt v. Cannon, 80 Nev.
588 32
Page
Lazarus v. Faircloth, 301 F.
Supp. 266 157
Leathers v. Peterson, 195
Ore. 62 66
Ledwith v. Roberts, [1937]
1 K. B. 232 161
Lee v. Washington, 390
U. S. 333 321,325
Lee Art Theatre v. Virginia,
392 U. s. 636 1024
Lego v. Twomey, 404 U. S.
~7 ~5
Lehigh Valley R. Co. v.
Martin, 100 F. 2d 139 22
Lenson v. Sandler, ~O Pa.
193 195
L. E. Shunk Latex Products
v. Commissioner, 18 T. C.
940 406,426
Lester v. Bd. of Elections,
319 F. Supp. 505 334
Levy v. Louisiana, 391 U.S.
68 73,326,652
Levy v. Resor, 17 U. S. C.
M.A. IB5 44,~,M
Lilly & Co. v. United States,
178 Ct. Cl. 666 409
Lindsey v. Nonnet, 405 U.S.
56 551
Linkletter v. Walker, 381
U. S. 618 286,484, 1056
Livingstone v. Rebman, 169
Ohio St. 109 189
Local Finance Corp. v. Commissioner,
407 F. 2d 629
395,406,425
Local Finance Corp. v. Commissioner,
48 T. C. 773 410
Londoner v. Denver, 210
U.S. 373 383
Long v. District Court of
Iowa, 385 U. S. 192 77
Lopez v. United States, 373
U. S. 427 1029
Losicau v. Sigler, 406 F. 2d
795 480,484
Louisiana v. Texas, 176 U.S.
1 257-259
Lovell v. Griffin, 303 U. S.
444 726,961
Loving v. Virginia, 388 U.S.
1 73,326,447
Lucas v. Colora.do Gen. Assembly,
377 U. S. 713 42
CXXVIll TABLE OF CASES CITED
Page
Lucas v. Earl, 281 U. S.
111 404,411,416,423-424
Luftig v. McNamara, 126
l'. S. App. D. C. 4 980
Lundgren v. Commissioner,
376 F. 2d 623 107
Luther v. Borden, 7 How. 1 732
Lutwak v. United States, 344 u. s. 604 432
Lynch v. Household Fimtnce
Corp., 405 U. S. 538
1036-1037, 1051, 1052
Lyons v. State, 94 Ga. App.
570 525,535
MacGregor v. State Mutual
Co., 315 U. S. 280 83
Mackay v. Uinta l>E'vE'lopment
Co., 229 1:. S. 173
703,705
Mackey v. United States,
401 'C. S. 667 286-287, 499
Magenau v. AE>tna. Freight
Lines, 360 U. S. 273 83
:\Iahan v. Howell, 404 U. S.
1201 1203
Malinski v. New York, 324
F. S. 401 436
Manufacturers Record Co.
v. Lauer, 268 F. 2d 187
554,559
Marcus v. Search Warrant,
367 U. S. 717 1024
Marine Cooks v. Arnold,
348 U. S. 37 78
Mark T., In re, 8 Mich.
App. 122 654
Marron v. United States,
275 r. s. 192 1025
\Iarsden v. Soper, 11 Ohio
&.W3 1~
l\fassachusetts v. Laird, 451
F . 2d 26 980
Massachusetts v. Laird, 400
l 1. S. 886 979 980
Massie v. Henry, 455 F . 2d
779 1032
:\fatthews v. Hardy, 137
U. S. App. D. C. 39 511
Matthews v. Rodger~, 284 u. s. 521 543
Mav v. Anderson , 345 U. S.
528 651
Mayberry v. Pennsylvania,
382 U. S. 286 205
Page
McCardle, Ex parte, 6 Wall.
318 47
McCarroll v. Dixie Greyhound
Lines, 309 U. S.
176 715
McConnell v. Rhay, 393
U.S. 2 291
Mc Donald v. Bd. of Elections,
394 U. S. 802
82,143,362
McDonald v. Mabee, 243 u. s. 90 184
:McElroy v. Guagliardo, 361
U. S. 281 49-50
McGee v. Eyman, 83 S. Ct.
230 1204
McGee v. United States, 402
U. S. 479 38, 40
McGowan v. Maryland, 366
U. S. 420 70-71, 142,326,467
McKane v. Durston, 153
U. S. 684 77, 960
McKart v. United States,
395 U. s. 185 37, 40, 372-373
'.\foLaughlin v. Florida, 379
U. s. 184 . 73, 82,335
Mcl\fann v. Richardson, 397
U.S. 759 187
Mc Millen v. Willard Garage,
14 Ohio App. 2d 112 190
McNeese v. Bd. of Ed., 373 u. s. 668 671
Memoirs v. Massachusetts,
383 F. S. 413 314
Mempa v. Rha.y, 389 U.S.
128 290-291
:Menefee Lumber v. Abrams,
138 Ore. 263 66, 88
Mercantile Nat. Bk. v. Langdeau,
371 U. S. 555 1022
Meredith v. Fair, 83 S. Ct.
10 1204
Merryman, Ex parte, 17 F.
Cas. 144 47
Meyer v. Austin, 319 F.
Supp. 457 958
Meyer v. Nebraska, 262
U.&390 4~.651
M. F. A. Central Coop. v.
Bookwalter, 427 F. 2d
1341 300
Michael's Jewelers v. Handy,
6 Conn. Cir. 103 555
TABLE OF CASES CITED CXXIX
Pagl>
Michelson v. United States,
335 U. R. 469 488
Michi!!:an-Wisconsin P i p e
Line v. Calvert, 347 'C'. S.
157 725-726
Miley v. John Hancock Ins.,
148 F. Rupp. 299 263
Millard v. Harris, 132 U.S.
App. D. C. 146 512
Milli11:an, Ex parte, 4 Wall.
2 ~ , G,M
Millikin, Inc. v. Allen, 21
Wis. 2d 497 69
MillR v. Alabama, 384 U. S.
214 1022-1026
Millsap v. CommiRsioner,
387 F. 2d 420 97
Miranda v. Arizonu, 3M
U. S. 436 185-186, 1029 1030
Missouri v. Illinois, 180 'C'. R.
208 258
Mitchell v. United 8tat('S,
386 U. S. 972 980
Monroe V. Pape, 365 r. 8.
167 543 544,547,671
Monrosa, The v. Carbon
Black, Inc., 359 l1. S. 180 230
Montgomery Ward v. Duncan,
311 U. 8. 243 113
Moody v. Flowers, 387 U. S.
97 541,901,905-906
Mooney v. Holohan, 294
U. S. 103 15.'3
Moore v. Ogilvie, 394 U. S.
814 333
Mora v. McNamara, 389
l". S. 934 980
Morey v. Doud, 354 U. S.
457 145,335,667
Morf v. Bingaman, 298 U. S.
407 i15, 720
Morgan v. United States,
304 U. S. 1 3&'2-383, 386
Morley Constr. Co. v. Maryland
Cas. Co., 300 U. S.
185 202, 204
Morton Salt v. Suppiger Co.,
314 l'. s. 48& 576
Moss v. CAB, 139 U. S.
App. D. C. 150 747
M & S Steel v. NLRB, 353
F. 2d 80 124
Mullane v. Central Hanover
Tr., 339 U. S. 306 84,382
Mullaney v. Anderson,
U . S. 415
342
Page
340
Mulloy v. United States, 398
U. S. 410 386
Murdock v. Pennsylvania,
319 U. S. 105 455, 726
Muskrat v. U'nited States,
219 U. S. 346 732
Mvers v . Jenkins, 63 Ohio
St. 101 187
apue , .. Illinois, 360 P. S.
264 151, 153-155,643
122
Nash v. Florida Industrial
Comm'Jt, 389 U. S. 235
NAACP v. Alabama, 357 u. s. 449 446,960
NAACP v. Alabama, 377
lT. S. 288 70, 961
NAACP v. Button, 371 U.S.
415 343, 521-522,533, 739
National Equip. Rental v.
S:i:ukhent, 375 U. S 311 185
National Exch. Bk. v. Wiley,
195 U. S. 257 178
NLRB v. Dal-Tex Optical
Co .. 310 F. 2d 58 125
NLRB v. Marine Workers,
391 U. S. 418 122
NLRB v. Metropolitan Ins.,
380 l'. S. 438 1013
NLRB v. Pittsburgh S. S.
Co., 337 U. S. 656 50'.2
NLRB v. Ritchie Mfg. Co.,
354 F. 2d 90 120-121
NLRB v. Syracuse St11mping
Co., 208 F. 2d 77 125
NLRB v. Wyman-Gordon
Co., 394 U. S. 759
National Laundry Council
v. Shultz, 143 U. S. App.
122
D. C. 274 760
Nationwide Auto Scrv. v.
Assn. of C. & S. Co., 382
F. 2d 925 263
Neal v. Delaware, 103 F. S.
370 626,628
Neely v. Eby Constr. Co.,
386 U. S. 317 106, 112, 113
New Hampshire v. Louisiana.,
108 l'. S. 76 259
New York v. New ,Terst>y,
256 U. S. 296 258
New York v. O'Neill, 359 u. s. 1 724
CXXX TABLE OF CASES CITED
Page
New York City v. Miln, 11
Pet. 102 163
Niblock v. Commissioner,
417 F. 2d 1185 96,100,108
Nicholson v. Boles, 375 U.S.
25 205
Nickey v. Mississippi, 292
U.S. 393 66
Nippert v. Richmond, 327
U. S. 416 717
Nixon v. Condon, 286 U. S.
73 140
Nixon v. Herndon, 273 U. S.
536 140
Norris v. Alabama, 294 U. S.
587 629,632
North Dakota v. Minnesota,
263 U. S. 365 258-259
Northern Pac. R. Co. v.
United States, 356 U. S.
1 262,607-608,615,621
Northern Securities v.
United States, 193 U. S.
197 575
Northwest Airlines v. Airport
Bd., 154 Mont. 352 711
Norwood v. Parenteau, 228
F. 2d 148 559
Nostrand v. Little, 362 U.S.
474 686
Noto v. United States, 367
U.S. 290 688
Noyd v. Bond, 395 U. S.
683 40--46,49-51
Noyd v. McNamara, 378
F. 2d 538 39
O'Callahan v. Parker, 395
U. S. 258 51, 53
Oestereich v. Selective Service
Bd., 393 U. S. 233 39,
371-377, 384-393, 547
Ohio v. Akron Park Dist.,
281 U. S. 74 77
Ohio v. Wyandotte Chemicals,
401 U. S. 493 267
Ohio Bell Tel. v. Public Util.
Comm'n, 301 U. S. 292
186,188
Ohlson v. Phillips, 304 F.
Supp. 1152 683, 695
Ohlson v. Phillips, 397 U. S.
317 682
Page
Oklahoma v. Atchison, T. &
S. F. R. Co., 220 U. S.
277 259
Oklahoma Gas Co. v. Packing
Co., 292 U. S. 386 906
Oklahoma Operating Co. v.
Love, 252 U. S. 331 383
Oklahoma Packing v. Oklahoma
Gas & Elec., 309
U.S. 4 559
Old Colony R. Co. v. Commissioner,
284 U. S. 552
300,310
Old Colony Tr. v. Commissioner,
279 U. S. 716 423
Olff v. East Side School
Dist., 404 U. S. 1042 1032
On Lee v. United States, 343
U. S. 747 1027
Opp Cotton Mills v. Administrator,
312 U. S. 126 383
Oregon v. Mitchell, 400 U. S.
112 336,338,341,344,
349, 357, 363, 724-725
Oriel v. Russell, 278 U. S.
358 11
Orlando v. Laird, 443 F. 2d
1039 980
Orloff v. Willoughby, 345 u. s. 83 40, 46
Osborn v. Hawley, 19 Ohio
130 178
Osborn v. United States, 385 u. s. 323 1027
Osmond v. Spence, 327 F.
Supp. 1349 200
Oswald v. Crouse, 420 F. 2d
373 484
Ove Gustavsson Contracting
Co. v. Floete, 278 F. 2d
912 733
Overmyer Co. v. Frick Co.,
405 U.S. 174
193,200-202,971
Oyama v. California, 332 u. s. 633 73
Pagan Cancel v. Delgado,
408 F. 2d 1018 284
Panhandle Oil v. Knox, 277
U. S. 218 686
Papachristou v. Jacksonville,
405 u. s. 156 172-173
TABLE OF CASES CITED CXXXI
Page
Parisi v. Davidson, 435 F.
2d 299 37
Parisi v. Davidson, 396 U.S.
1233 36
Parker v. Gladden, 385 U. S.
363 1055
Parrot v. Tallahassee, 381
U. S. 129 961
Passenger Cases, 7 How.
283 338, 723-724
Patton v. Mississippi, 332
U.S. 463 629
Paul v. Virginia, 8 Wall.
168 338,724
Pedersen v. NLRB, 234 F.
2d 417 124,126
Pedlosky v. Massachusetts
Inst. of Technology, 352
Mass. 127 690,694,697
Pennoyer v. Neff, 95 U. S.
714 184
Pennsylvania v. West Virginia,
262 U. S. 553 258
Penn Yan Agway Coop. v.
United States, 189 Ct. Cl.
434 300
People v. Bernatowicz, 35
Ill. 2d 192 285
People v. Bonner, 37 Ill. 2d
553 282,285
People v. Colombo, 25 N. Y.
2d 641 12
People v. Craig, 152 Cal.
42 166
People v. Givans, 83 Ill.
App. 2d 423 284
People v. Johnson, 31 Ill. 2d
602 282
People v. Morris, 30 Ill. 2d
406 279,283
People v. Moss, 309 N. Y.
429 169
Peoples Banking Co. v.
Brumfield Hay & Grain,
172 Ohio St. 545 178
Perez v. Ledesma, 401 U. S.
82 541,543, 560
Perkins v. Matthews, 400
U. S. 379 1004
Perma Life Mufflers v. Int'!
Parts Corp., 392 U. S. 134 262
Peru, Ex parte, 318 U. S.
578 33
Page
Philadelphia & So. S. S. Co.
v. Pennsylvania, 122 U. S.
326 723
Phillips v. North Carolina,
433 F. 2d 659 283
Phillips v. United States, 312
U. S. 246 903, 906
Phoenix v. Kolodziejski, 399
U.S. 204 337
Picard v. Connor, 404 U. S.
270 516,658
Pickard v. Pullman Southern
Car Co., 117 U. S. 34 725
Pickelsimer v. Wainwright,
375 U. S. 2 481
Pickering v. Bd. of Ed., 391
U. S. 563 692
Pierce v. Society of Sisters,
268 u. s. 510 457
Pierre v. Louisiana, 306 u. s. 354 626,629,636
Piliavin v. Hoel, 320 F.
Supp. 66 334
Pines v. Perssion, 14 Wis.
2d 590 69
Pittsburgh Towing v. Mississippi
Valley Barge Line,
385 U. S. 32 1001, 1004
Pleasants v. Greenhow, 114 u. s. 323 542
Pointer v. Texas, 380 U. S.
400 942
Polsky v. Wetherill, 403 u. s. 916 39
Poole v. State, 244 Ark. 1222 383
Pope v. Swenson, 395 F. 2d
321 284
Pope v. Williams, 193 U. S.
621 337, 343-344, 361-363
Posadas v. Nat. City Bk.,
296 U. S. 497 549
Potter v. Appleby, 136
Conn. 641 554
Powell v. McCormack, 395
U. S. 486 19, 26, 30, 32, 980
Preister v. Thrall, 229 Ore.
184 76
Prentis v. Atlantic C. L. R.
Co., 211 U. S. 210 20-22
Price v. Johnston, 159 F. 2d
234 327
Price v. Johnston, 334 U. S.
266 328
CXXXII TABLE OF CASES CITED
Pa,:e
Prince v. Massachusetts, 321
U. S. 158 446,651
Prize Cases, 2 Black 635 980
Procunier v. Atchley, 400 u. s. 446 297
Propper v. Clark, 337 U. S.
472 63
Public Service Co. v. Corboy,
250 U. S. 153 22
Public Util. Comm'n v. Pollak,
343 U. S. 451 458
Public Workers v. Mitchell,
330 u. s. 75 1001, 1004-1005
Pugach v. Dollinger, 365 u. s. 458 1027
Purity Extract v. Lynch, 226 u. s. 192 469
Putnam v. Commissioner,
352 U. S. 82 101, 110
Pyle v. Kansas, 317 U. S.
213 153
Quantity of Books v. Kansas,
378 U. S. 205 1024
Quarles, In re, 158 U. S. 532 89
Radio Station WOW v.
Johnson, 326 U. S. 120 1021
Railroad Co. v. Goodman,
57 Ohio St. 641 184
Railway Express v. New
York, 336 U. S. 106 454
Reade v. Ewing, 205 F. 2d
630 738
Reck v. Pate, 367 U. S. 433
286,288
Redrup v. New York, 386 u. s. 767 317,963, 1075
Reece v. Washington, 310
F. 2d 139 328
Reed v. County Comm'rs,
277 U. S. 376 19, 30
Reed v. Reed, 404 U. S. 71
446---447,641,656
Reetz v. Bozanich, 397 U. S.
82 63, 83, 91
Reetz v. Michigan, 188 U. S.
505 77
Reid v. Barry, 93 Fla. 849 742
Reid v. Covert, 354 U. S. 1
49-50
Reisman v. Caplin, 375 U. S.
440 383
Republic Nat. Gas v. Oklahoma,
334 U. S. 62 1021
Page
Rescue Army v. Municipal
Court, 331 U. S. 549 502
Reynolds v. Sims, 377 U. 8.
533 143,336
Reynolds v. United States,
98 u. s. 145 202
Reynolds Metals v. FTC,
114 U. S. App. D. C. 2
573,590
Rice v. Olson, 324 U. S.
786 2
Richards v. Thurston, 424
F. 2d 1281 1032
Richardson v. Cole, 300 F.
Supp. 1321 679
Richardson v. Perales, 402
U. S. 389 221
Rinaldi v. Yeager, 384 U. S.
305 551,719
Roberts v. Harder, 440 F.
2d 1229 551
Roberts v. La Vallee, 389
U. S. 40 294,296
Roberts v. Russell, 392 U. S.
293 430,942
Rogers v. Alabama, 192
U. S. 226 960
Rogers v. Missouri Pac. R.
Co., 352 U. S. 500 432,437
Rogers v. Richmond, 365
U.S. 534 436
Rogers v. United States, 340
U. S. 367 185
Roller v. Holly, 176 U. S.
398 85
Rosado v. Wyman, 397 U. S.
397 551
Roseland v. Phister Mfg.,
125 F. 2d 417 264
Rosenblatt v. American Cyanamid,
86 S. Ct. 1 1021
Rosencrantz v. Territory, 2
Wash. Ter. 267 641,643
Roth v. United States, 354
U.S. 476 314-315, 317
Roudebush v. Hartke, 405 u. s. 15 553
Royster Guano Co. v. Virginia,
253 U. S. 412 326
Rutkin v. United States, 343 u. s. 130 405,414,416,425
Sachs v. Nussenbaum, 92
Conn. 682 555
TABLE OF CASES CITED CXXXIII
Page
Samuels v. Mackell, 401
U.S. 66 560
Samuels v. State, 103 Ga.
App. 66 527,535
Sanders v. United States,
373 U. S. 1 967
Sanitary Milk Producers v.
Bergjans Dairy, 368 F. 2d
679 263
Santiago v. McE!roy, 319
F. Supp. 284 551
Saxon v. Georgia Ins.
Agents, 399 F. 2d 1010
401,418
Scales v. Spencer, 246 Ore.
111 76,80,90
Scenic Hudson Preservation
Conf. v. FPC, 354 F. 2d
608 738--739, 747,760
Schine Theatres v. United
States, 334 U. S. 110 573
Schlanger v. Seamans, 401
U.S. 487 39
Schneble v. Florida, 392 u. s. 298 428,432
Schneider v. State, 308 U. S.
147 353
Schuster v. Herold, 410
F. 2d 1071 511
Scott v. Commanding Officer,
431 F. 2d 1132 380
Screws v. United States, 325 u. s. 91 163,545
Scripps-Howard Radio v.
FCC, 316 U. S. 4 736-737
Sears v. Weimer, 143 Ohio
St. 312 184
SEC v. Chenery Corp., 318 u. s. 80 249-250
SEC v. Chenery Corp., 332
U. S. 194 1012
Sellers v. United States, 89
S.Ct.W 1W6
Serta Associates v. United
States, 393 U. S. 534 608,616
Shamrock Oil ,,. Sheets, 313 u. s. 100 705
Shapiro v. Doe, 396 U. S.
488 1001,1004
Shapiro v. Thompson, 394
U. S. 618 73, 82, 89, 338- 344,
348, 352, 358-359, 447,
671, 674, 714, 724-725
Page
Sharkiewicz v. Smith, 142
Conn. 410 555
Shelley v. Kraemer, 334 u. s. 1 544
Shelton v. Tucker, 364 U.S.
479 343,697
Shenandoah Valley Broadcasting
v. ASCAP, 375 u. s. 39 1035
Sherbert v. Verner, 374
U. S. 398
Shillitanj v. United States,
89
384 U. S. 364 11, 13
Shunk Latex Products v.
Commissioner, 18 T. C.
940 406,426
Shuttlesworth v. Birmingham,
382 U. S. 87
Sibron v. New York, 392
170
U.S. 40 205
Sicurella v. United States,
348 u. s. 385 1010
Sierra Club v. Harin, 325
F. Supp. 99 760
Silverman v. United States,
365 u. s. 505 1027
Simmons v. State, 456 S. W.
2d 66 480
Simmons v. United States,
348 U. S. 397 386
Simon v. Southern R. Co.,
236 u. s. 115 558
Sims v. Georgia, 389 U. S.
404 632
Sirak v. Brown, Civ. No.
70-164 (SD Ohio 1970) 334
Skinner v. Oklahoma, 316
U. S. 535 73,
82, 335, 352, 453, 651
Slaughter-House Cases, 16
Wall. 36 724
S!ochower v. Bd. of Ed., 350
U. S. 551 686
Smiley v. Holm, 285 U. S.
355
Smith v. Allwright, 321 U. S.
649
Smith v. Bennett, 365 U. S.
25
140
708 47, 77
Smith v. Cahoon, 283 U. S.
553
Smith v. Commissioner, 55
145
T. C. 260 96, 107-108
CXXXIV TABLE OF CASES CITED
Page
Smith v. Florida, 405 U. S.
172 157
Smith v. Reeder, 21 Ore.
541 71-72
Smith v. Safeguard Ins., 212
Pa. Super. 83 195
Smith v. State, 239 So. 2d
250 169
Smith v. Texas, 311 U. S.
128 632,636
Sniadach v. Family Finance
Corp., 395 U. S. 337
185,557,647
Snowden v. Hughes, 321
U. S. 1 143
South Carolina Council v.
Newton, 360 F. 2d 414 263
Southern Pac. Co. v. Arizona,
325 U. S. 761 722
Southern Pac. Terminal v.
ICC, 219 U. S. 498 333
Sparks v. Sparks, 114 Tenn.
666 348,351
Spaulding v. State, 481 P.
2d 389 481
Specht v. Patterson, 386
U. S. 605 508,511,513
Spector Motor Service v.
O'Connor, 340 U. S. 602 713
Speiser v. Randall, 357 U. S.
513 522,528,688,695,698
Spevak v. Klein, 385 U. S.
511 341
Sprout v. South Bend, 277
U.S. 163 715
Stack v. Boyle, 342 U. S. 1 293
Standard Oil v. United
States, 221 U. S. 1 607, 621
Stanley, In re, 45 Ill. 2d 132 647
Stanley v. Georgia, 394 U.S.
557 453, 1025
Stanley v. Illinois, 405 U. S.
645 1051
State. See also name of
State.
State v. Brooks, 224 Tenn.
7~ 1~
State v. Emery, 224 N. C.
581 643
State v. Miles, 364 S. W.
2d 532 1060
State v. Weaver, 122 Tenn.
198 346,353
Page
State ex rel. Acker v.
Reeves, 229 Ind. 126 24
State ex rel. Anderson v.
Winsett, 217 Tenn. 564 133
State ex rel. Batchelet v.
DeKalb Cir. Ct., 248 Ind.
481 24
State ex rel. Beaman v. Cir.
Ct. of Pike County, 229
Ind. 190 24
State ex rel. Stroetz v.
Burke, 28 Wis. 2d 195 513
State Farm Ins. v. Duel, 324
U. S. 154 659
State Freight Tax Case, 15
Wall. 232 725
Staub v. Baxley, 355 U. S.
313 961
Steelworkers v. Warrior &
Gulf, 363 U. S. 574 230
Stefanelli v. Minard, 342
U.S. 117 560
Stein v. Luken, 396 U. S.
555 1001, 1004
Stovall v. Denno, 388 U. S.
293 280-
281, 284-287, 295, 297
Stratmore v. United States,
420 F. 2d 461 97
Strauder v. West Virginia,
100 U. S. 303 628,635,642
Street v. New York, 394
U. S. 576 465, 523, 527
Stroetz v. Burke, 28 Wis. 2d
195 513
Stromberg v. California, 283
U. S. 359 455,465
Sturdavant v. Sturdavant,
28 Tenn. App. 273 351
Sturgis v. Attorney General,
358 Mass. 37 442,448,451,467
Subilosky v. Commonwealth,
265 N. E. 2d 80 481
Subilosky v. Moore, 443 F.
2d 334 483
Sullivan v. Alabama State
Bar, 394 U. S. 812 671
Sullivan v. Little Hunting
Park, 396 U. S. 229 544,961
Sutton's Hospital Case, 77
Eng. Rep. 937 743
Swarb v. Lennox, 405 U. S.
191 190,551,971
TABLE OF CASES CITED CXXXV
Page
Takahashi v. Fish & Game
Comm'n, 334 U. S. 410 73
Tank Truek Rentals v. Commissioner,
356 U. S. 30 414
Taylor v. Scott, 10 Ore. 483 72
Tehan v. Shott, 382 U. S.
406 286
Tennessee Power v. TVA,
306 U. S. 118 733
Terminiello v. Chicago, 337 u. s. 1 457,459,520
Terry v. Adams, 345 U. S.
461 140
Tesehner v. Commissioner,
38 T. C. 1003 406,410
Thiel v. Southern Pac. Co.,
328 U. S. 217 637
Thomas v. Collins, 323 U.S.
516 455--457, 726
Thornhill v. Alabama, 310
U. S. 88 162,170,445,457
Tileston v. Ullman, 318 U.S.
44 443
Tillman v. United States,
406 F . 2d 930 519
Timkrn Roller Bearing Co.
v. United States, 341 U.S.
593 608,616
Toomer v. Witsell, 334 U.S.
385 340
Torcaso v. Watkins, 367
U. S. 488 322
Toth v. Quarles, 350 U. S.
11 49-50
Toucey v. New York Life
Co., 314 U. S. 118 20
Townsend v. Sain, 372 U. S.
293 3-5,7,296,492-493
Townsend v. Swank, 404
U. S. 282 674,971
Travis v. Yale & Towne
Mfg., 252 TJ. S. 60 340
Trent "· Commissioner, 291
F. 2d 669 101,107,109
Tucker v. Alexandroff, 183
U. S. 424 742
Tucker v. Craven, 421 F . 2d
139 484
Tucker v. United States, 431
F. 2d 1292 480,483
Turner v. Fouche, 396 U. S.
346 143,146,632
Turner v. Louisiana, 379 u. s. 466 636, 1052-1060
Pago
Twining v. New Jersey, 211
U. S. 78 724
Udall v. FPC, 387 U. S.
428 747
Underwood v. Ribicoff, 298
F. 2d 850 211
United. For labor union,
see name of trade.
United Church of Christ v.
FCC, 123 U.S. App. D. C.
328 738,747
United States v. American
R. Express, 265 U. S. 425
202,204
United States v. American
Tobacco, 221 U. S. 106 621
United States v. Arnold,
Schwinn & Co., 388 U. S.
365 247,608,612,617--618
United States v. Atlas Life
Ins., 381 U. S. 233 421
United States v. Ball, 163
U. S. 662 131
l1nited States v. Beaty, 288
F. 2d 653 69
United States v. Bevilacqua,
18 U.S. C. M.A. 10 44
United States v. Brown, 7
U. S. C. M. A. 251 52
United States v. Broyles, 423
F . 2d 1299 380
United States v. Bruce, 353
F. 2d 474 69
United States v. Bufalino,
285 F. 2d 408 940
United States v. Cabbage,
430 F. 2d 1037 386
United States v. Christian
Echoes Ministry, 404 U.S.
561 903-904
United States v. Cohen Grocery,
255 U. S. 81 162
United States v. Compagna,
146 F. 2d 524 . 1058
United States v. Cooper
Corp., 312 U. S. 600 264
United States v. Cotton,
397 u. s. 45 1001 , 1004
United States v. Crescent
Amusement , 323 U. S.
173 573
United States v. Cummins,
425 F. 2d 646 380,386
CXXXVI TABLE OF CASES CITED
Page
United St.ates v. Donruss
Co., 393 U. S. 297 105
United States v. Du Pont,
353 u. s. 586 569,573
United States v. Du Pont,
366 u. s. 316 573,575
United States v. Edwards,
450 F. 2d 49 380
United States v. El Paso
Gas, 376 U. S. 651 573
United States v. Frischholz,
16 U. S. C. M. A. 150 53
United States v. General
Motors, 384 U. S. 127
610,612
United States v. Gilmor<',
372 U. S. 39 112
United States v. Guest, 383
U. S. 745 338, 723-725
United States v. Harriss,
347 U. s. 612 162
United States v. Haughton,
413 F. 2d 736 380--381
United States v. Hayden,
445 F. 2d 1365 1008, 1011
United States v. Illinois C.
R. Co., 291 U. S. 457 383
United States v. Jackson,
390 U. S. 570 342
United States v. Jacoby, 11
U.S. C. M.A. 428 52
United States v. Jennings,
19 U. S. C. M. A. 88 44
United States v. Johnson,
319 U. S. 302 732
United States v. Joliet & C.
R. Co., 315 U. S. 44 423
United States v. Jorn, 400
U.S. 470 133
United States v. Kemp, 13
U. S. C. M. A. 89 52
United States v. Keogh, 391
F. 2d 138 154
United States v. Lauchli,
444 F. 2d 1037 966
United States v. Lemmens,
430 F. 2d 619 380
United States v. Lenhard,
437 F. 2d 936 380
United States v. Maryland
Savings-Share Ins., 400
U.S. 4 82
United States v. Masonite
Corp., 316 U. S. 265 610,612
Page
United States v. Mitchell,
403 U. s. 190 423
United States v. National
Dairy, 372 U. S. 29 65, 162
United States v. National
Lead, 332 U. S. 319 608,616
United States v. Noyd, 18
U. S. C. M. A. 483 42
United States v. O'Brien,
391 U. S. 367 458,460,467
United States v. Owen, 415
F. 2d 383 386
United States v. Pacheco,
433 F. 2d 914 380
United States v. Paramount
Pictures, 334 U. S. 131
573,590
United States v. Penn-Olin
Chemical, 378 U. S. 158
568-569
United States v. Perez, 9
Wheat. 579 131
United States v. Petrillo, 332
U.S. 1 162
Unit,('d States v. Philadelphia
Nat. Bk., 374 U.S. 321
569-570,580,610
United States v. Price, 383
U.S. 787 549
United States v. Raines, 362
U. S. 17 65,202,
444-445, 466, 521, 530
United States v. Reese, 92 u. s. 214 165
United States v. Robel, 389 u. s. 258 343
United States v. Schalck, 14
U. S. C. M. A. 371
United States v. Sealy, Inc.,
52
388 u. s. 350 608-609, 616
United States v. Seeger, 380 u. s. 163 45, 54
United States v. Skelly Oil,
394 u. s. 678 115
44
United States v. Snyder, 18
U. S. C. M. A. 480
United States v. Speicher,
439 F. 2d 104 1012
United States v. Stephens,
445 F. 2d 192 1007
United States v. Stetter, 445
F. 2d 472 380
United States v. Stewart, 20
U.S. C. M.A. 272 43
TABLE OF CASES CITED cxxxvn
Page
United States v. Sullivan,
274 U. S. 259 413
United States v. Sweeney, 14
U. S. C. M. A. 599 52
United States v. Tempia, 16
U. S. C. M. A. 629 52
United States v. 37 Photographs,
402 U. S. 363
520,528,1024
United States v. Thompson,
431 F. 2d 1265 386
United States v. Timken
Roller Bearing Co., 83 F.
Supp. 284 576
United States v. Trenton
Potteries, 273 U. S. 392
611-612
United States v. Tropiano,
418 F. 2d 1069 576
United States v. Tucker, 404
U. S. 443 482 494--497
United States v. 201 Bags of
Furazolidone, 405 U. S.
964 967
United States v. U. S. Coin
& Currency, 401 U. S. 715 968
United States v. U. S. Gypsum
Co., 340 U.S. 76 573,575
United States v. Vierra, 14
U. S. C. M. A. 48 52
United States v. Wade, 388
U. S. 218 281
United States v. Washington,
392 F. 2d 37 380
United States v. Wheeler,
254 U. S. 281 724
United States v. White, 401
U. S. 745 1027, 1029-1030
United States v. Wilson, 19
U. S. C. M. A. 100 42
U. S. Bulk Carriers v. Arguelles,
400 U. S. 351 229-231
U. S. ex rel. See name of
real party in interest.
Upper Pecos Assn. v. Stans,
328 F. Supp. 332 760
Utah Comm'n v. El Paso
Gas, 395 U. S. 464 206
Vanderbilt v. Vanderbilt,
354 U. S. 416 184
Velvel v. Nixon, 415 F. 2d
236 980
Virginia, Ex parte, 100 U.S.
339 629
Page
Virginia v. Rives, 100 U. S.
313 628
Volasco Products v. Fry
Roofing Co., 308 F. 2d 383 263
Waddy v. Heer, 383 F. 2d
789 284
Wade v. Hunter, 336 U. S.
684 131
Walder v. United States, 347
U.S. 62 482
Walker v. Follette, 443 F.
2d 167 480,482,484
Walker v. Pate, 356 F. 2d
502 325
Walker v. Wainwright, 409
F. 2d 1311 284
Waller v. Florida, 397 U. S.
387 12
Walling v. General Industries,
330 U. S. 545 202
Ward v. '.Vfaryland, 12 Wall.
418 340
Washington v. Texas, 388
U. S. 14 941
Watson v. Paine, 25 Ohio St.
340 178
Weddle v. Commissioner,
325 F. 2d 849 96, 100, 104, 108
Weddle v. Director, 436 F'.
2d 342 542
Weil v. Calhoun, 25 F. 865 22
Welsh v. United States, 398
U. S. 333 909
Wesberry v. Sanders, 376
U. S. 1 143
West Virginia Conservancy
v. Island Creek Coal, 441
F. 2d 232 760
Wheeler v. Flood, 269 F.
Supp. 194 291
Wheeler v. Montgomery,
397 U. S. 280 215
Whipple v. Commissioner,
373 U. S. 193
99 / 102-104 I 107 / 109
Whitcomb v. Chavis, 403
U. S. 124 1202
White v. Crook, 251 F.
Supp. 401 639,644
White v. Maryland, 373
U. S. 59 283,291,293
White v. State, 11 Md. App.
423 481
CXXXVIII TABLE OF CASES CITED
Whitehill v.
U.S. 54
Whiteley v.
Page
Elkins, 389
680,692,695,697
Warden, 401
U.S. 560 169
White Motor Co. v. United
States, 372 U. S. 253 247,
608, 611-612, 615, 620
Whitley v. Williams, 393
U. S. 544 1001, 1005
Whitney Stores v. Summerford,
393 U. S. 9 671
Whitus v. Georgia, 385 U. S.
545 630-632
Wieman v. Updegraff, 344
U. S. 183 680, 688,695,697
Wiener v. Local Bd. No. 4,
302 F. Supp. 266 386
Wilentz v. Sovereign Camp,
306 U. S. 573 905
Williams v. Coiner, 392 F.
2d 210 480
Williams v. Dunbar, 377 F.
2d 505 326
Williams v. Fears, 179 U. S.
270 340
Williams v. Florida, 399
U.S. 78 637
Williams v. North Carolina,
317 U. S. 287 465
Williams v. Rhodes, 393 u. s. 23 141, 143,145,335
Williams v. United St/\tes,
401 U. S. 646 280-281
Williamson v. Lee Optical
Co., 348 U. S. 483 335,448
Wilson v. Harris, 351 F. 2d
840 284
Wilson v. State, 200 Tenn.
309 127,129
Wilson v. State, 223 Ga.
531 519,526-528,534
Page
Wilwording v. Swenson, 404
U. S. 249 516-517
Winters v. New York, 333
U. S. 507 165
Wisconsin v. J. C. Penney
Co., 311 U. S. 435 712
Witherspoon v. Illinois, 391
U. S. 510 637
Witmer v. United States, 34'8
U.S. 375 373
Wolff v. Selective Service
Bd., 372 F. 2d 817 373
Wright v. Baumann, 239
Ore. 410 87
Wyman v. Bowens, 397 U.S.
49 339
Wyman v. Lopez, 404 U. S.
1055 339
Yates v. United States, 354
U. S. 298 688-689, 694
Yates v. United States, 355
U. S. 66 11
Young, Ex parte, 209 U. S.
123 383
Young v. Margiotta, 136
Conn. 429 554
Young v. State, 185 Tenn.
596 127
Young v. United States, 315
U.S. 257 205
Younger v. Gilmore, 404
U. S. 15 321,325
Younger v. Harris, 401 U.S.
37 531,556,560-561
Youngstown Sheet & Tube
v. Sawyer, 343 U. S. 579 980
Zenith Radio v. Hazeltine
Research, 395 U. S. 100 262
Zwickl er v. Koota, 389 U. S.
241 63,91,548
TABLE OF STATUTES CITED
(A) STATUTES OF THE UNITED STATES
Page
1789, Sept. 24, c. 20, 1 Stat.
73, § 25. . . . . . . . . . . 1020
1793, Mar. 2, c. 22, 1 Stat.
333, § 5........... 15
1866, Apr. 9, c. 31, 14 Stat.
27, § 2 ............ 538
1871, Apr. 20, c. 22, 17 Stat.
13, § 1. ........... 538
1875, Mar. 1, c. 114, 18 Stat.
335, § 4 ........... 625
Mar. 3, c. 137, 18 Stat.
470 .............. 538
1887, Mar. 3, c. 373, 24 Stat.
552 . . . .... . . ... . . 538
1890, July 2, c. 647, 26 Stat.
209, as amended. . . . 298
§ 1 ......... 251,596
§ 4 ......... 562,596
§ 7 ............. 251
Sept. 25, c. 926, 26
Stat. 478, §§ 1-2 ... 727
1897, June 4, c. 2, 30 Stat.
11 ............... 727
1903, Feb. 11, c. 544, 32 Stat.
823, § 2 ....... 562,596
1905, Feb. 1, c. 288, 33 Stat.
628, § 1. .......... 727
1908, Apr. 22, c. 149, 35
Stat. 65. . . . . . . . . . . 427
1911, Mar. 3, c. 231, 36 Stat.
1087 ............. 538
1914, Sept. 26, c. 311, 38
Stat. 717, as amended,
§ 5 .... . .... . .. 233
Oct. 15, c. 323, 38 Stat.
730, as amended,
§§ 2, 4, 4A, 16 . ... 251
§§ 7, 15 .......... 562
1915, Mar. 4, c. 144, 38 Stat.
1086 ............. 727
1916, July 17, c. 245, 39 Stat.
360, as amended ... 298
Page
1916,Aug. 25, c. 408, 39
Stat. 535, §§ 1, 3. . 727
Sept. 7, c. 461, 39 Stat.
752 .............. 394
Sept. 8, c. 463, 39 Stat.
756, § 5........... 93
1917, May 18, c. 15, 40 Stat.
76, § 4 ............ 365
1918, Apr. 5, c. 45, 40 Stat.
506, § 20. . .. . . . . . . 394
1922, Feb. 18, c. 57, 42 Stat.
388 .............. 298
1923, Mar. 4, c. 252, 42 Stat.
1454, § 201 et seq. . 298
1924, June 2, c. 234, 43 Stat.
253, § 240. . . . . . .. . 394
1926, Feb. 26, c. 27, 44 Stat.
9, § 240 ........... 394
July 3, c. 744, 44 Stat.
818, §§ 3, 6. . . . . . . . 727
1928, May 29, c. 852, 45
Stat. 791, § 45 ..... 394
1929, June 15, c. 24, 46 Stat.
11, § 15 ........... 298
1933, June 16, c. 90, 48 Stat.
195 . . .. . ......... 117
June 16, c. 98, 48 Stat.
257, as amended .... 298
1934, June 19, c. 652, 48
Stat. 1064, § 402 ... 727
1935, July 5, c. 372, 49 Stat.
449, as amended,
§§ 7-8, 10-12 ...... 117
Aug. 14, c. 531, 49 Stat.
620, as amended,
§§ 204, 221, 223,
225 .............. 208
§§ 402, 406. . . . . . . 669
1936, June 19, c. 592, 49
Stat. 1526, § 1. . . . . 251
1937, Aug. 19, c. 704, 50 Stat.
703, § 5 ........... 298
CXXXIX
CXL TABLE OF STATFTES CITED
Pag~
1938, Mar. 21, r. 49, 52 Stat.
111 , § 3 ........... 233
June 25, c. 675, 52 Stat.
1040, as amended,
§§ 301, 303, 503 .... 438
June 25, c. 676, 52 Stat.
1060, as amended,
§§ 7, 16 ........... 228
1940,Sept. 16, C. 720, 54
Stat. 885, § 10 ..... 365
1942, Oct. 21, c. 619, 56
Stat. 798, § 120 .... 394
§ 124 .. . .. .. . .. . 93
1946, June 11, c. 324, 60
Stat. 237, § 10 ..... 727
Aug. 2, c. 753, 60 Stat.
812, as amended,
§ 207 . .. . . • .. .. .. . 34
1947, June 23, c. 120, 61 Stat.
136, as amended,
§ 101 ............. 117
1948, June 24, c. 625, 62 Stat.
604, as amended,
§§ 1, 10, 12, 22 ..... 365
§6 ............. 34
§ 13 ........... 1006
1950, May 5, c. 169, 64 Stat.
107 . . . . . . . . . . . . . . 34
Dec. 29, r. 1184, 64
Stat. 1125. .. .. .. .. 562
1953, Aug. 6, c. 335, 67 Stat.
390, §§ 2, 4 ........ 298
1954, Aug. 16, r. 736, 68A
Stat. 3. §§ 1-2..... 93
1955, July 7, c. 283, 69 Stat.
282, § 1. ....... ... 251
Aug. 11, c. 785, 69 Stat.
655, § 101. . .. . . . .. 298
1956, Mar. 13, c. 83, 70 Stat.
36 ............... 394
Aug. 1, c. 836, 70 Stat.
807, § 103 ......... 208
Aug. 10, r. 1041, 70A
Stat. I,§ 1552...... 34
1958, July 25, Pub. L. 85-
554, 72 Stat. 415 ... 538
1959 , June 25, Pub. L. 8~
69, 73 Stat. 112. . . . 394
1960, June 12, Pub. L. 8~
517, 74 Stat. 215 ... 727
1965, Aug. 6, Pub. L. 89-
110, 79 Stat. 437, as
amended, § 5 ...... 1001
§§ 201-202 ....... 330
Page
1967, June 30, Pub. L. 90-
40, 81 Stat, 100, § 1. 365
1968, Aug. 23, Pub. L. 90-
495, 82 Stat. 815,
§23 . ............ 1030
Oct. 24, Pub. L. 90-
632, 82 Stat. 1335 ,
§2 ............... 34
1970, Jan. 1, Pub. L. 91-
190, 83 Stat. 852 ... 727
May 21, Pub. L. 91-
258, 84 Stat. 219. . . 707
June 22, Pub. L. 91-
285, 84 Stat. 314,
§ 5 .............. 1001
§6 ............. 330
1971,Sept. 28, Pub. L. 92-
129, 85 Stat. 348,
§ 101 ............. 365
Revised Statutes.
§§ 563, 629.. .. .. .. .. . . 538
§ 1979 . . . . . . .. . . . . 15, 56,
191, 319, 504, 538, 669
§ 1980 ............... 965
§ 4529 ............... 228
§§ 5202, 5239 .......... 394
U.S. Code.
Title 5,
§ 701 et seq ...... 727
§ 554 ........... 1006
Title 7, §§ 291-292 .... 298
Title 10 (1952 ed., Supp.
V), § 1552... ....... 34
Title 10, §§ 133, 819,
832, 836, 846, 849,
867, 890, 1552 ...... 34
Title 12 (1958 ed.),
§ 1151 et seq ........ 298
Title 12,
§93 ............. 394
§§ 636a, 636r, 640a,
641 et seq., 1134
et seq., 114lj ... 298
Title 15,
§ 1 .......... 251,596
§ 4 .......... 562,596
§§ 13, 15, 15a, 26 .. 251
§§ 18, 25, 29 ....... 562
§29 ............. 596
§ 45 ............. 233
Title 16, §§ 1, 41, 43,
45c, 472, 497, 528-
531, 551, 688 ....... 727
TABLE OF STATUTES CITED CXLI
Page
U. S. Code-Continued.
Title 18,
§ 242 ............ 538
§ 243 ............ 625
§ 545 ............ 965
§ 1951 ........... 936
§§ 2421-2422 ...... 944
§ 3060 ........... 278
§ 3144 .......... 1205
Title 21,
§§ 331, 333, 353 .... 438
Title 23, §§ 109, 128.. 1030
Title 26,
§§ 1-2, 162, 165-166,
172, 262, 531,
1211- 1212 ..... 93
§§ 11, 215, 482, 673,
801 tt seq., 2036-
2038, 2040 . . . . . 394
§§ 163, 263, 1221 .. 298
§ 501 ............ 901
§ 2035 . . . . . . . . 93, 394
Title 28,
§§ 294-295 ........ 949,
999, 1034, 1049
§ 1252 ........... 901
§ 1253 . . . . . . . 15, 134,
538,669,676, 901
§ 1257 . . 645, 958, 1020
§ 1292 ........... 251
§§ 1331, 1361 .. 365, 538
§ 1332 . . . . . . . 538, 699
§§ 1333- 1334, 1336,
1338-1341, 1344-
1350, 1352-1353,
1357-1358 ..... 538
§ 1337 ....... 251, 538
§ 1343 . . . . . . . . . . . 15,
191,365,538,669
§§ 1441, 1444, 2410. 699
§ 1651 . . . . . . . . . . . 34
§ 1915 ....... 319, 965
§§ 2201-2202 ...... 669
§ 2253 ........... 504
§ 2254 ...... l, 34,504
§ 2255 ........... 965
§ 2281 . . . . . . . . . . . 15,
56, 134, 330, 538,
669, 676, 901
§ 2283 ........ 15,538
§ 2284 ..... . ..... 15,
134, 330, 538, 676
Page
U. S. Code-Continued.
Title 29,
§§ 157-158, 160-162. 117
§§ 207, 216 ........ 228
Title 42,
§§ 404, 421, 423,
425 ........... 208
§§ 602, 606 ........ 669
§ 1973c . . . . . . . . . 1001
§§ 1973aa, 1973aa-l. 330
§ 1983 .... 15, 56, 191,
319, 504, 538, 669
§ 1985 ........... 965
§ 4321 et seq. . . . . . 727
Title 46, § 596 ........ 228
Title 49, § 1701 et seq. . 707
Title 50 App.,
§§ 451, 460, 462 .... 365
§ 456 . . . .. . .. .. .. 34
§ 463 ........... 1006
Title 50 App. (Supp.
I), § 471a .......... 365
U.S. Code Ann.
Title 12, § 92 ......... 394
Administrative Procedure
Act .............. 727, 1006
Agricultural Credits Act of
1923 .................. 298
Agricultural Marketing Act. 298
Airport and Airway Development
Act of 1970 .... 707
All Writs Act............ 34
Capper-Volstead Act ...... 298
Geller-Kefauver Antimerger
Act ................... 562
Civil Rights Act of 1866 ... 504,
538
Civil Rights Act of 1871 .. 538
Civil Rights Act of 1875 ... 625
Clayton Act .......... 251,562
Communications Act of
1934 .................. 727
Expediting Act. . . . . . . . 562, 596
Fair Labor Standards Act
of 1938 ...... . .......... 228
Farm Credit Acts of 1933,
1937, 1953, 1955 ....... . 298
Federal-Aid Highway Act
of 1968 . . . . . . . . . . . . . . . . 1030
Federal Employers' Liability
Act ................... 427
Federal Farm Loan Act. . . 298
CXLII TABLE OF STATUTES CITED
Page
Federal Food, Drug, and
Cosmetic Act . . . . . . . . . . . 438
Federal Trade Commission
Act ................... 233
Forest Reserve Act. . . . . . . . 727
Internal Revenue Code of
1939, § 23. .. .. .. .. .. .. . 93
Internal Revenue Code of
1954,
§§ 1-2, 162, 165-166, 172,
262, 531, 1211-1212. 93
§§ 11, 215, 482, 673,
801 et seq., 2036-
2038, 2040 .......... 394
§§ 163, 263, 1221 ...... 298
§ 501 ................ 901
§ 2035 ............ 93,394
Judiciary Act of 1789. . . . 1020
Labor Management Relations
Act, 1947. . . . . . . . . . 117
Legislative Reorganization
Act of 1946............ 34
Life Insurance Company Income
Tax Act of 1959. . . 394
Life Insurance Company
Tax Act for 1955. . . . . . . 394
Military Justice Act of
1968 . . . . . . . . . . . . . . . . . . 34
Military Selective Service
Act of 1967 ........ 365, 1006
Page
Multiple-Use Sustained-Yield
Act of 1960. . . . . . . . . . . . 727
National Environmental Policy
Act of 1969 . . . . . . . . . 727
National Industrial Recovery
Act ................. 117
National Labor Relations
Act ................... 117
Revenue Act of 1916...... 93
Revenue Acts of 1924, 1926,
1928 .................. 394
Revenue Act of 1942 .. 93,394
Robinson-Patman Act ..... 251
Selective Draft Act ....... 365
Selective Service Act of
1948 .................. 365
Selective Training and Service
Act of 1940 .......... 365
Sherman Act .. 251,298,562,596
Social Security Act. . . . 208, 669
Uniform Code of Military
Justice, Arts. 19, 32, 36,
46, 49, 67, 90.......... 34
Voting Rights Act Amendments
of 1970. . . . . . . . . . 330
Voting Rights Act of 1965 .. 330,
1001
War Finance Corporation
Act ................... 394
Wheeler-Lea Act .......... 233
(B) CONSTITUTIONS AND STATUTES OF THE STATES
AND THE DISTRICT OF COLUMBIA
Alabama.
Code, Tit. 20, § 16; Tit.
62, § 248 ........... 174
Arizona.
Rev. Stat. Ann. §§ 6-
629, 44-143 ......... 174
Rev. Stat. Ann. §§ 10-
121, 32-1964 to 32-
1965, 32-1975, 36-
1061 .............. 901
Rev. Stat. Ann. § 13-
537 ............... 313
California.
Civil Code § 1941 . . . . . 56
Penal Code §§ 311.2,
1538.5, 1539-1540 .. 1020
Connecticut.
Gen. Stat. Rev. § 9-
323 . . . . . . . . . . . . . . . 15
Connecticut-Continued.
Gen. Stat. Rev. §§ 36-
236, 42-88 .......... 174
Gen. Stat. Rev. §§ 51-
85, 52-54, 52-89, 52-
302, 52-304, 52-329. 538
District of Columbia.
Code, Tit. 7. . .. . . . . . 1030
Florida.
Laws 1971, c. 71-132 .. 156
Stat. § 847 .011 . . . . . . . . 958
Stat. § 856.02. . . . . 156, 172
Georgia.
Code Ann. §§ 26-2610,
26-6303 ............ 518
Code Ann. § 59- 124 ... 625
Illinois.
Const., Art. I, § 7. . . . 278
Rev. Stat., c. 3, § 12-8. 645
TABLE OF STATUTES CITED CXLIII
Illinois-Continued.
Rev. Stat., c. 23, § 11-
23 . . . . . . . . . . . . . . . . 56
Rev. Stat., c. 37, §§ 701-
2, 701-14, 702-1, 702-
4 to 702-5, 704-1
et seq., 705-8 ...... 645
Rev. Stat., c. 38, §§ 114-
2, 114-9 to 114-10 .. 278
Rev. Stat., c. 80, § 71. . 56
Rev. Stat., c. 89, § 4 .. 645
Rev. Stat., c. 106¾,
§ 52 ............... 645
Rev. Stat., c. 110, § 50. 174
Juvenile Court Act .... 645
Indiana.
Ann. Stat. §§ 2-2904,
2-2906 ............ 174
Ann. Stat. §§ 29-5201
to 29-5220, 29- 5306
to 29-5309, 29-5401
to 29-5417 ......... 15
Election Code. . . . . . . . . 15
Louisiana.
Code Crim. Proc., Arts.
401-402 ........... 625
Massachusetts.
Stat. 1879, C. 159, § 1 .. 438
Stat. 1966, c. 265, § 1 .. 438
Gen. Laws Ann,, c. 94,
§187A ............. 438
Gen. Laws Ann., c. 231,
§ 13A ............. 174
Gen. Laws Ann., c. 239,
§8A ........... ... 56
Gen. Laws Ann., c. 264,
§§ 14-15 ........... 676
Gen. Laws Ann., c. 272,
§§ 18, 21, 21A ...... 438
Michigan.
Pub. Acts 1968, c. 2. . 56
Comp. Laws §§ 4\:lo.n,
600.2906 ........... 174
Comp. Laws § 564.204. 56
Stat. Ann. §§ 23.667,
27A-2906 .......... 174
Stat. Ann. § 26.1300. . 56
Minnesota.
Stat. §§ 56.12, 168.71,
548.22 ............. 174
Missouri.
Const., Art. I, § 22 .... 625
Rev. Stat. § 511.100 ... 174
New Hampshire.
Laws 1926, c. 378, § 2 .. 518
Laws 1969, c. 391. .... 707
Laws 1971, c. 140 ..... 707
Rev. Stat. Ann.§§ 422:-
3, 422:43-422:45 .... 707
New Jersey.
Stat. Ann. §2A:16-9. 174
New Mexico.
Stat. Ann. §§ 21-9-16,
21-9-18 ........... 174
New York.
Judiciary Law § 507 . . . 625
Judiciary Law § 750.. 9
Mult. Resid. Law
§ 305-a . . . . . . . . . . . . 56
Penal Law §§ 245.l~
245.11 ............. 313
Penal Law § 600. .... . 9
Real Prop. Actions Law
§§ 769-782 . . . . . . . . . 56
Ohio.
1 Chase's Stats., c. 243,
§34 ··············· 174
Laws 1969-1970, p.
196 ........ ...... . 174
R ev. Code § 2323.IJ ... 174
Oregon.
Rev. Stat. §§ 16.0 10,
16.220, 16.460, 19.040,
46.250, 53.040, 53.090,
91.220, 105.105-105.-
160 . . . . . . . . . . . . . . . 56
Rev. Stat. § 166.270. . 1047
Forcible Entry and
Wrongful Detainer
Act . . . . . . . . . . . . . . . 56
Pennsylvania.
Laws 1937, p. 1982 .... 191
Stat. Ann., Tit. 12,
§§ 738-739 . .... 174, 191
Stat. Ann., Tit. 17,
§ 1482 ............. 191
Stat. Ann., Tit. 35,
§ 1700-1 . . . . . . . . . . . 56
Rules Civ. Proc. 295~
2976 .............. 191
Rhode Island.
Gen. Laws Ann. § 9- 9-
11 ..... . ........... 625
CXLIV TABLE OF STATUTES CITED
Page
Rhode Island-Continued.
Gen. Laws Ann. §§ 19-
25-24, 19-25-36 ..... 174
South Dakota.
Comp. Laws § 21-26-1. 174
Comp. Laws Ann. § 43-
32-9 . . . . . . . . . . . . . . 56
Tennessee.
Const., Art. IV, § 1 . . . . 330
Code Ann. §§ 2-201 to
2-202, 2-204, 2-301 et
seq., 2-1309 et seq.,
2-1601 to 2-1602, 2-
1614, 2-1701 et seq.,
2- 2207 to 2-2209. . . . 330
Code Ann. §§ 22-101,
22-108 ............ 625
Code Ann. § 39-3901 .. 127
Texas.
Acts 1967, c. 723, § 77. 134
62d Leg., 1st Sess., c.
11, §7 (1971) ...... 134
Code Crim. Proc., Art.
36.24 .......... . .. 1052
Page
Texas-Continued.
Election Code Ann.,
Arts. 13.02 - 13.03,
13.07, 13.07a, 13.08,
13.08a, 13.08c, 13.09,
13.15-13.16, 13.50 ... 134
Penal Code, Art. 1189 . . 4 73
Virginia.
Code Ann. § 24-277.1.. 15
Washington.
Rev. Code § 9.68.010 .. 313
Wisconsin.
Rev. Stat. § 593 (1878,
1883) ............. 504
Laws 1880, c. 266. . . . . 504
Stat. 1947, § 51.37 .... 504
Stat. 1951, § 340.485 .. 504
Stat. 1958, c. 292. . . . . 504
Stat. Ann. §§ 51.02-51.-
03, 51.75, 947.15,
959.15 , 974.06 , 975.06,
975.14, 975.16 ....... 504
Mental Health Act. ... 504
Sex Crimes Act. . . . . . . 504
(C) FOREIGN STATUTE
England.
23 F..<lw. 3, c. 1; 25 Edw. 3, c. 1. ....................... 156
CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1971
BOYD v. DUTTON, WARDEN
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 70-5075. Decided February 22, 1972
Where the material facts bearing upon the issue of whether petitioner,
charged with four felonies, knowingly and voluntarily
waived his constitutional right to counsel before entering a guilty
plea in the state trial court,. were inadequately developed in a
state court post-conviction hearing, the Federal District Court
considering a habeas corpus petition was under a duty to hold
an evidentiary hearing. Townsend v. Sain, 372 U. S. 293, 313;
28 U.S. C. §2254(d).
Certiorari granted; 435 F. 2d 153, vacated and remanded to District
Court.
PER CURIAM.
The petitioner, Jack Boyd, pleaded guilty in a Georgia
trial court to three counts of forging checks and to one
count of possession of a forged check. He was not represented
by a lawyer. The court sentenced him to serve
28 years in prison-four consecutive terms of seven years
each. No transcript of that plea or sentencing proceeding
exists.
He sought habeas corpus relief in the state trial court,
alleging, among other things, that he had been denied
the assistance of counsel. An evidentiary hearing was
1
2 OCTOBER TERM, 1971
Per Curiam 405 u. s.
held, and relief was denied. An appeal was dismissed by
the Georgia Supreme Court. The petitioner then filed
a petition for habeas corpus in a Federal District Court,
which denied relief without a hearing, basing its decision
on the record of the state post-conviction proceeding.
The Court of Appeals for the Fifth Circuit affirmed,
Boyd v. Smith, 435 F. 2d 153.
At the Georgia post-conviction hearing, where the petitioner
was also without the assistance of counsel, the only
witness for the State on the question of waiver of counsel
at the arraignment was a man named Dunnaway, who
had been present at the arraignment, as Deputy Sheriff
of Terrell County, Georgia. According to Dunnaway,
the prosecutor told the petitioner that he was entitled
to legal counsel and that the court would appoint a
lawyer if the petitioner could not afford one. By Dunnaway's
account, the prosecutor then asked the petitioner
if he wanted a lawyer, and the petitioner replied
that he did not. Yet there were apparently no questions
from either the judge or the prosecutor during the
arraignment inquiring whether the petitioner understood
the nature and consequences of his alleged waiver
of the right to counsel or of his guilty plea.
The petitioner expressed a desire to call witnesses at
the state post-conviction hearing, but the court did not
ask him who the proposed witnesses were or inquire
about the expected nature of their testimony. The judge
simply noted that the petitioner, who obviously possessed
no legal skills, had failed to subpoena those whom he
wanted to testify.
A person charged with a felony in a state court has
an unconditional and absolute constitutional right to a
lawyer. Gideon v. Wainwright, 372 U. S. 335. This
right attaches at the pleading stage of the criminal process,
Rice v. Olson, 324 U. S. 786, and may be waived
BOYD v. DUTTON 3
1 BLACKMUN, J., concurring
only by voluntary and knowing action, Johnson v. Zerbst,
304 U.S. 458; Carnley v. Cochran, 369 U.S. 506. Waiver
will not be "lightly presumed," and a trial judge must
"indulge every reasonable presumption against waiver."
Johnson, supra, at 464.
The controlling issue in this case is whether the petitioner
knowingly and voluntarily waived his constitutional
right to counsel before entering the guilty plea in
the state trial court. It is evident that the material
facts bearing upon that issue were inadequately developed
in the state court post-conviction hearing. That
being so, the Federal District Court was under a duty to
hold an evidentiary hearing. Townsend v. Sain, 372 U. S.
293, 313; 28 U.S. C. § 2254 (d). Accordingly, we grant
the petition for a writ of certiorari, vacate the judgment
before us, and remand the case to the District Court
for an evidentiary hearing.
It is so ordered.
MR. JUSTICE BLACKMUN, concurring.
I join the Court's per curiam opinion and judgment.
I do so, however, only after some initial hesitation, for
there is force in MR. JUSTICE POWELL'S dissent when it
stresses that the unanimous judgment of four courts is
being overturned and that the trier of fact in the state
post-conviction procedure decided the factual issues
against the petitioner.
A reading of the post-conviction transcript, however,
persuades me that the petitioner was utterly lost at that
proceeding; that his assertion that favorable witnesses
existed was frustrated because he did not know how to
compel their attendance and received no assistance in
this respect; and that the development of the material
facts leaves something to be desired and falls somewhat
short of the standards laid down in Townsend v. Sain,
372 U. S. 293, 313 (1963). When a 20-year-old who
4 OCTOBER TERM, 1971
WHITE, J., dissenting 405 U.S.
claims he could not read or write (although he apparently
was able to sign his name to the petition in the present
proceeding) receives four consecutive seven-year sentences,
totaling 28 years, for forging three checks within
a fortnight in the respective amounts of $45, $45, and $40,
and for possessing a forged check in the amount of $10,
his post-conviction hearing, for me and on balance, must
clearly meet those standards. Certainly, the appointment
of counsel is indicated.
MR. JusTICE WHITE, with whom THE CHIEF JusTICE
joins, dissenting.
There is no suggestion that either the trial court accepting
petitioner's plea of guilty or the state court denying
habeas corpus employed an erroneous legal standard
in proceeding as it did. On this record we may "properly
assume that the state trier of fact applied correct standards
of federal law to the facts, in the absence of evidence
... that there is reason to suspect that an incorrect
standard was in fact applied." Townsend v. Sain,
372 U. S. 293, 315 (1963). And in participating in our
appellate function and acting on the cold record before
us, I cannot presume greater insight into petitioner's
understanding of his rights, his waiver of counsel, and
his plea of guilty than that of the other courts that have
considered this case, including the state court accepting
the plea of guilty and the habeas corpus court that
heard petitioner and the other evidence. According to
the undisputed evidence as to the circumstances surrounding
the plea, petitioner stated that he waived counsel,
admitted that he was guilty, and accordingly entered
his plea. Like MR. JusTICE POWELL, I think the judgment
of the state court was fairly supported by the evidence.
The petition for writ of certiorari having been
granted, I would affirm the judgment of the Court of
Appeals.
BOYD v. DUTTON 5
1 PowELL, J., dissenting
MR. JusTICE PowELL, with whom THE CHIEF JUSTICE
and MR. JUSTICE REHNQUIST join, dissenting.
The per curiam opinion of the Court finds that the
facts in this case were "inadequately developed" with respect
to the controlling issue whether petitioner knowingly
and voluntarily waived his constitutional right to
counsel before entering the guilty plea in the state trial
court. Relying on Townsend v. Sain, 372 U. S. 293
(1963), the majority remands the case to the District
Court.
As it seems to me that the facts on this issue were
adequately developed in the state post-conviction evidentiary
hearing, I dissent from the majority holding.
At that hearing Deputy Sheriff Dunnaway, who was present
at the time petitioner waived counsel, testified as
follows:
"Q. What prompted you to get him out of jail?
Had he indicated he wanted to enter a plea or what?
"A. He stated he wanted to go before the Judge
and enter a plea of guilty.
"Q. And is Saturday the regular day that the
Judge takes pleas there?
"A. Yes, sir. He takes 'em in Colquitt, his home
town.
"Q. And you took him yourself to the Courtroom
from the jail?
"A. Yes, sir.
"Q. Would you tell the Court briefly what happened
whenever you got him to the Courtroom?
"A. He was carried to the Courtroom, and, uh,
the Solicitor drawed up the accusations against him,
and after he drawed up the accusation against him,
and I signed the accusation, we called Jack Boyd
and Clinton. Henderson, another boy that was with
him, into the Courtroom, and Mr. Ray advised each
6 OCTOBER TERM, 1971
POWELL, J., dissenting 405 u. s.
of 'em what the charges against 'em was and asked
'em did they have legal counsel, and which both
of 'em stated they did not have legal counsel. Mr.
Ray advised both of 'em that they were entitled to
legal counsel, and if they could not afford it, the
Court would appoint 'em legal counsel, and asked ...
also, he advised 'em if they wanted to go to trial by
jury, that the Court would appoint 'em an attorney
to represent 'em in trial, and this defendant and
Clinton Henderson both stated to Mr. Ray, in my
presence, that they both knew they was guilty and
they didn't want a trial, and they both signed the
accusation that they was guilty, and I witnessed
the signature of both of 'em.
"Q. I believe you said you had known Jack Boyd
for a good many years. Did he appear to understand
from his demeanor what was going on and
what he was charged with?
"A. Yes, sir.
"Q. Is he possessed of average intelligence at
least?
"A. Yes, sir.
"Q. Did he appear to understand Mr. Ray when
he told him that he had the right to have an
attorney?
"A. Mr. Ray asked him did he understand what
he had stated to him. He said that he did.
"Q. In your opinion, from your familiarity with
him, your acquaintance with him, and from your
observation of him at that time, did he knowingly
and intelligently enter his plea of guilty?
"A. Yes, sir.
"Q. Did he knowingly and intelligently ... this
is your opinion also I'm asking about, waive his
right to any counsel, legal counsel?
"A. Yes, sir."
BOYD v. DUTTON 7
1 POWELL, J ., dissenting
Petitioner was present when Dunnaway testified and
did not contradict the foregoing testimony that he waived
counsel. This undisputed testimony seems adequate, as
the courts below found, to warrant the conclusions that
petitioner knowingly and voluntarily waived his right
to counsel, and that no further evidentiary hearing was
required.
It is true that petitioner is uneducated, and that the
sentence imposed seems disproportionate to the crime.'
It is also true that the state court hearing could have
been more exhaustive.2 Additional witnesses might have
been called, as suggested by the majority opinion, although
there is no indication in the record that they
would have contradicted the testimony with respect to
waiving counsel which petitioner himself failed to dispute.
But the ultimate test with respect to the holding
of an evidentiary hearing by a federal district court is
whether there was "a full and fair fact hearing" in the
state proceedings. Townsend, supra, at 313. Where the
material facts bearing upon the relatively narrow issue
of waiving counsel are undisputed, except inferentially,
and show that waiver was made "knowingly and intelligently,"
I believe that this test has been met.3
There is little likelihood that a new hearing now, eight
years after the 1964 conviction, will be conducive to de-
1 Petitioner, having served some eight years, may well merit consideration
for parole or executive clemency.
2 The trial judge would have been well advised to have appointed
a lawyer, although that is not constitutionally required. See Johnson
v. Avery, 393 U. S. 483, 488 (1969) (dictum); Developments in
the Law-Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1197
(1970).
3 In Townsend v. Sain, 372 U. S. 293, 319 (1963), the Court
recognized that it must rely largely on district judg-es, who have
the "paramount responsibility in this area," to implement the prescribed
standards.
8 OCTOBER TERM, 1971
POWELL, J., dissenting 405 U.S.
pendable factfinding • or will enlarge upon the evidence
already considered. This case already has received the
attention of four courts. Remanding it may further the
repetitive judicial re-examination which has become so
commonplace. The current flood of petitions for postconviction
relief already threatens-because of sheer volume----
to submerge meritorious claims and even to produce
a judicial insensitivity to habeas corpus petitioners.5
• Petitioner demonstrated in the state court proceeding the infirmity
of his memory by initially denying that he had ever been in
court prior to the forgery charge, when in fact he had been convicted
previously of receiving stolen goods and had served a sentence for
that crime.
5 See Bator, Finality in Criminal Law and Federal Habeas Corpus
for State Prisoners, 76 Harv. L. Rev. 441, 451 (1963).
COLOMBO v. NEW YORK 9
Per Curiam
COLOMBO v. NEW YORK
ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
APPEALS OF NEW YORK
No. 71-352. Decided February 22, 1972
Petitioner refused to answer a grand jury's questions despite a
grant of immunity. A trial judge found the questions to be
proper and directed petitioner to answer. Petitioner refused, and
the judge found that by "his contumacious and unlawful refusal
. . . to answer any legal a.nd proper interrogatories and
for his wilful disobedience to the lawful mandate of this Court"
petitioner had "committed a criminal contempt of court" in
violation of N. Y. Judiciary Law § 750. He was sentenced to
30 days and fined $250. His offer to testify thereafter was refused
and he paid his fine and served his sentence. Petitioner was
then indicted under N. Y. Penal Law § 600 ''for his contumacious
and unlawful refusal . . . to answer legal and proper interrogatories."
The trial court dismissed the indictment on double
jeopardy grounds, but the appellate court reversed. The New
Yark Court of Appeals, sustaining the reversal, held that there
were two acts of contempt, one before the grand jury, and the
other the refusal to obey the court order, and that the trial
judge had committed petitioner for civil, not criminal, contempt.
Held: Petitioner was penalized for criminal contempt for purposes
of the Double Jeopardy Clause, and in view of the state court's
misconception of the nature of the contempt judgment, and the
substantial question of state law arising from the State's response
that it considers the two acts of contempt as being partially
intertwined, the judgment is vacated and the case is remanded
to the state court.
Certiorari granted; 29 N. Y. 2d 1, 271 N. E. 2d 694, vacated and
remanded.
PER CuRIAM.
Despite a grant of immunity in response to the assertion
of his Fifth Amendment privilege not to be a witness
against himself, petitioner refused to answer questions
put to him before a Kings County, New York, grand
jury. On December 7, 1965, a trial judge found that
OCTOBER TERM, 1971
Per Curiam 405 U.S.
the questions put had been proper and directed petitioner
to answer them. Petitioner refused; the trial court,
after allowing petitioner a week's time to change his
mind, signed a commitment order stating that by "his
contumacious and unlawful refusal after being sworn as
a witness to answer any legal and proper interrogatories
and for his wilful disobedience to the lawful mandate
of this Court" petitioner had "committed a criminal contempt
of court in the immediate view and presence of
the Court and that said contempt was wilful and unlawful
and in violation of Section 750 of the Judiciary
Law of the State of New York .... " Petitioner was
sentenced to 30 days and fined $250.
Appellate proceedings proved fruitless. Petitioner
then offered to testify, the offer was refused, and petitioner
paid his fine and served his sentence. On October
10, 1966, petitioner was indicted under § 600,
subd. 6, of the New York Penal Law of 1909 "for his contumacious
and unlawful refusal, after being duly sworn
as a witness, to answer legal and proper interrogatories."
The trial court dismissed the indictment on double jeopardy
grounds but the appellate court reversed. The
reversal was sustained by the Court of Appeals, which
concluded that the Fourteenth Amendment and the
double jeopardy provision of the Fifth Amendment did
not bar the indictment. The court reasoned that petitioner
had committed two acts of contempt-one on October
14, 1965, before the grand jury, and the other on
December 7 when he refused to obey the order of the
judge~and that the trial judge had committed petitioner
for civil, not criminal, contempt.
The judgment of the Court of Appeals must be vacated.
The judgment of the New York trial court entered on December
15, 1965, was for "criminal contempt," petitioner
was sentenced to a definite term in jail and ordered to
pay a fine, and neither the prosecutor nor the trial court
COLOMBO v. NEW YORK 11
9 DouoLAS, J ., dissenting
considered his offer to testify as sufficient to foreclose
execution of the sentence. For purposes of the Double
Jeopardy Clause, petitioner was confined and penalized
for criminal contempt. Yates v. United States, 355 U.S.
66 (1957); see also Cheff v. Schnackenberg, 384 U.S. 373
(1966); Shillitani v. United States, 384 U.S. 364 (1966);
Oriel v. Russell, 278 U. S. 358 (1929). To the extent
that the judgment of the Court of Appeals rested on a
contrary view, it must be set aside. It also appears from
its supplemental response that the State considers the
two acts of contempt on October 14 and on December 7
as being partially intertwined. As we understand it
from the State's response, petitioner's refusal to answer
on October 14 did not mature into a complete contempt
until December 7 when the trial court passed on the
propriety of the grand jury's inquiry and petitioner thereafter
refused to obey the court's direction to return to the
grand jury and answer the questions properly put to him.
In view of the New York Court of Appeals' misconception
of the nature of the contempt judgment entered
against petitioner for purposes of the Double Jeopardy
Clause and in view of the substantial question of New
York law that has emerged, we are disinclined at this
juncture to entertain and determine the double jeopardy
question presented by petitioner. The better course is
to grant the petition for writ of certiorari, vacate the
judgment of the New York Court of Appeals, and remand
the case to that court for further proceedings not inconsistent
with this opinion, thus affording that court the
opportunity to reconsider the validity of the indictment
under the Double Jeopardy Clause of the Constitution.
So ordered.
MR. JusTICE DouGLAS, dissenting.
On October 14, 1965, petitioner refused to testify
when called before a Kings County, New York, grand
jury. When, on December 15, after a grant of immunity
12 OCTOBER TERM, 1971
DouoLAs, J ., dissenting 405 U.S.
and a judicial inquiry into the validity of the grand jury
investigation under state law, the petitioner persisted in
his refusal to testify, the presiding judge cited him for
contempt and imposed a sentence of 30 days and a fine
of $250.1 Despite petitioner's later willingness to testify,
the sentence was executed.
The grand jury then returned an indictment against
petitioner charging him with criminal contempt for his
refusal to testify.2 Petitioner successfully moved to
quash the indictment, but on appeal it was reinstated
and upheld against petitioner's contention that it put him
twice in jeopardy for the same offense in violation of the
Fifth Amendment. People v. Colombo, 25 N. Y. 2d 641,
254 N. E. 2d 340. We granted the petition for certiorari,
vacated the judgment of the New York Court of
Appeals, and remanded for consideration in light of
Waller v. Florida, 397 U. S. 387. 400 U. S. 16. On
remand, however, the Court of Appeals adhered to its
earlier decision, reasoning that the first citation was for
civil contempt while the indictment charged a criminal
offense and that "two distinct acts [ were J being punished-
refusal to testify before the Grand Jury and a
separate refusal to obey the lawful mandate of a Supreme
Court Justice." 29 N. Y. 2d 1, 3, 271 N. E. 2d
694,695.
The Court of Appeals' characterization of the December
15 citation as "civil" rather than criminal is not dispositive
of the question before us. To be sure, federal
courts normally are bound by state court interpretations
of state law, but involved here is a question of federal
right under the Double Jeopardy Clause. In such cases,
federal rather than state law governs. Suffice it to say
that a 30-day sentence and a $250 fine imposed for refusal
1 This contempt citation rested upon § 750 of the New York Judiciary
Law.
2 The present indictment is founded upon the former § 600 of the
New York Penal Law.
COLOMBO v. NEW YORK 13
9 DoUGLAS, J., dissenting
to testify before a grand jury constitutes criminal punishment
within the meaning of the double jeopardy provision
of the Bill of Rights, at least where the witness'
willingness to purge himself of contempt by testifying
does not result in the vacation of the sentence. Shillitani
v. United States, 384 U. S. 364, relied upon by respondent,
is not to the contrary. There, we held "that the conditional
nature of [the] sentences [ allowing the contemnors
to purge themselves by agreeing to testify] render [ ed]
each of the actions a civil contempt proceeding .... "
Id., at 365. In the present case, by contrast, the jail
sentence and fine was imposed despite petitioner's willingness
to testify.
Nor does the characterization of the two contempts as
involving different acts avoid the prohibition against
twice being put in jeopardy for the same offense. The
30-day sentence and $250 fine were imposed, inter alia,
for the petitioner's "refusal after being sworn as a witness
to answer any legal and proper interrogatories."
This is precisely the offense charged in the present indictment.
Respondent lists five elements 3 for the offense of
3 Respondent says that "[i]n order to prove the crime of criminal
contempt, the following elements must be shown:
"I. That the defendant did unlawfully and contumaciously refuse
to answer a legal and proper question before the Grand Jury.
"2. That the quorum of the Grand Jury was present at all times,
on any such day when the defendant testified and when the indictment
was voted.
"3. That the question which is claimed that the defendant refused
to answer was a legal and proper one.
"4. That any such question asked of the defendant, and which,
it is charged he refused to answer, was relevant and germane to the
investigation being conducted by the Grand Jury.
"5. That the defendant was duly sworn as a witness and contumaciously
and unlawfully refused to answer any such legal and
proper question." Supplemental Brief 6.
All of these elements-with the exception of the proviso "when
the indictment was voted" which relates to the sufficiency of the
indictment rather than being a separate element of the offense-were
14 OCTOBER TERM, 1971
DOUGLAS, J., dissenting 405 U.S.
criminal contempt. All of these elements were necessarily
included in the trial court's earlier citation for "civil"
contempt. Petitioner need not "run the gantlet" on this
offense a second time.' Green v. United States, 355 U.S.
184, 190.
plainly included in the "civil" contempt. The "witness's contumacious
and unlawful refusal to answer questions," ibid., stems from
the refusal to obey the trial court's order which also formed the basis
for the December 15 citation.
• I agree with MR. JUSTICE BRENNAN'S concurring opinion in Ashe
v. Swenson, 397 U. S. 436, 453-454, where he said:
"In my view, the Double Jeopardy Clause requires the prosecution,
except in most limited circumstances, to join at one trial all the
charges against a defendant that grow out of a single criminal act,
occurrence, episode, or transaction. This 'same transaction' test of
'same offence' not only enforces the ancient prohibition against vexatious
multiple prosecutions embodied in the Double Jeopardy
Clause, but responds as well to the increasingly widespread recognition
that the consolidation in one lawsuit of all issues arising out of
a single transaction or occurrence best promotes justice, economy,
and convenience." (Footnotes omitted.}
It would be repugnant to these views to allow a separate criminal
prosecution and punishment for each day, hour, or minute that a witness
refused to testify before a grand jury.
ROUDEBUSH v. HARTKE 15
Syllabus
ROUDEBUSH v. HARTKE ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF INDIANA
No. 70--66. Argued December 13, 1971-Decided February 23, 1972*
Incumbent Senator Hartke was certified by the Indiana Secretary of
State to the Governor as the winner of the close 1970 Indiana
senatorial election. Candidate Roudebush filed a timely recount
petition in state court. The state court denied Hartke's motion to
dismiss on the grounds of conflict with the Indiana and Federal
Constitutions, and granted the petition for a recount. Hartke
sought an injunction against the recount in United States District
Court, invoking jurisdiction under 28 U. S. C. § 1343 (3) and
claiming that the recount was barred by Art. I, § 5, of the Federal
Constitution, delegating to the Senate the power to judge the
elections, returns, and qualifications of its members. The threejudge
District Court issued the requested injunction. After appeals
were filed here, the Senate seated Hartke "without prejudice
to the outcome of an appeal pending in the Supreme Court ...
and without prejudice to the outcome of any recount that the
Supreme Court might order." Hartke then moved to dismiss the
appeals as moot. Held:
1. The issue here, whether a recount is a valid exercise of the
State's power to prescribe the times, places, and manner of holding
elections, pursuant to Art. I, § 4, of the Constitution, or is a forbidden
infringement on the Senate's power under Art. I, § 5, is not
moot, as the Senate has postponed making a final determination
of who is entitled to the office of Senator pending the outcome of
this action. Pp. 18-19.
2. The District Court was not barred from issuing an injunction
by 28 U. S. C. § 2283, which generally prohibits a federal court
from enjoining state court proceedings. Pp. 20-23.
(a) That section does not restrict a federal court from enjoining
a state court acting in a nonjudicial capacity. P. 21.
(b) The state court's recount functions are nonjudicial, as
they consist merely of determining that the recount petition is
correct as to form and appointing recount commissioners. Pp.
21-22.
*Together with No. 70--67, Sendak, Attorney General of Indiana
v. Hartke et cil., also on appeal from the same court.
16 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
(c) The complaint did not seek to enjoin the action of the
state court but rather to enjoin the recount commission from proceeding
after the court had appointed members of the commission.
P. 22.
3. Article I, § 5, does not prohibit a recount oi the ballots by
Indiana, as the recount will not prevent an independent Senate
evaluation of the election any more than the original count did,
and it would be mere speculation to assume that Indiana's procedure
would impair the Senate's ability to make an independent
final judgment. Pp. 23-26.
321 F. Supp. 1370, reversed.
STEWART, J., delivered the opm1on of the Court, in which
BuRGER, C. J., and WHITE, MARSHALL, and BLACKMUN, JJ., joined.
DouGLAs, J., filed an opinion dissenting in part, in which BRENNAN,
J., joined, post, p. 26. PowELL and REHNQUIST, JJ., took
no part in the consideration or decision of the cases.
Donald A. Schabel argued the cause for appellant in
No. 70-66. With him on the briefs was L. Keith Bulen.
Richard C. Johnson, Chief Deputy Attorney General of
Indiana, argued the cause for appellant in No. 70-67.
On the briefs were Theodore L. Sendak, Attorney General,
pro se, fVilliam F. Thompson, Assistant Attorney
General, and Mark Peden, Deputy Attorney General.
John J. Dillon argued the cause for appellees in both
cases. With him on the brief for appellee Hartke were
David W. Mernitz and James L. Tuohy.
MR. JUSTICE STEWART delivered the opinion of the
Court.
The 1970 election for the office of United States
Senator was the closest in Indiana history. The incumbent,
Senator R. Vance Hartke (Hartke), was declared
the winner by a plurality of 4,383 votes-a margin
of approximately one vote per state precinct. On November
16, 1970, 13 days after the election, the Indiana
Secretary of State certified to the Governor that Hartke
ROUDEBUSH 11. HARTKE 17
15 Opinion of the Court
had been re-elected. On the following day, candidate
Richard L. Roudebush (Roudebush) filed in the Superior
Court of Marion County a timely petition for a recount.1
Hartke moved in that court to dismiss the petition, arguing
that the state recount procedure conflicted with the
Indiana and Federal Constitutions. On December 1,
the state court denied the motion to dismiss and granted
the petition for a recount. It appointed a three-man
recount commission and directed it to begin its task on
December 8.
Hartke then filed a complaint in the United States
District Court for the Southern District of Indiana asking
for an injunction against the recount. He invoked federal
jurisdiction under 28 U.S. C. § 1343 (3) 2 and claimed
that the recount was prohibited by Art. I, § 5, of the
Constitution of the United States, which delegates to
the Senate the power to judge the elections, returns,
and qualifications of its members.3 A single district
1 Roudebush filed similar petitions in 10 other counties. Recounts
in all 11 counties have been postponed, pending the outcome of this
cause.
2 Title 28 U. S. C. § 1343 provides:
"The district courts shall have original jurisdiction of any civil
action authorized by law to be commenced by any person:
"(3) To redress the deprivation, under color of any State law,
statute, ordinance, regulation, custom or usage, of any right, privilege
or immunity secured by the Constitution of the United States or
by any Act of Congress providing for equal rights of citizens or of
all persons within the jurisdiction of the United States."
The District Court apparently viewed the suit as substantively
based upon 42 U. S. C. § 1983, which authorizes a civil action on
the part of a person deprived, under color of state law, "of any rights,
privileges, or immunities secured by the Constitution .... "
3 U. S. Const., Art. I, § 5, provides in pertinent part:
"Each House shall be the Judge of the Elections, Returns and
Qualifications of its own Members .... "
18 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
judge issued an order temporarily restraining the recount
pending decision by a three-judge district court.
The Attorney General of Indiana then moved successfully
to intervene as a defendant, and a three-judge
court was convened pursuant to 28 U. S. C. § 2284.
After taking testimony and hearing argument, the court
ruled in Hartke's favor and issued an interlocutory injunction,
321 F. Supp. 1370, one judge dissenting.
Roudebush and the Attorney General both brought
direct appeals to this Court.•
On January 21. 1971, shortly after the jurisdictional
statements were filed, the Senate administered the oath
of office to Hartke, who had been issued a certificate
of election by the Governor. Hartke was seated, however,
"without prejudice to the outcome of an appeal
pending in the Supreme Court of the United States,
and without prejudice to the outcome of any recount
that the Supreme Court might order .... "" Following
the Senate's decision to seat him, Hartke moved to
dismiss the appeals as moot. We consolidated both
appeals and postponed further consideration of questions
of jurisdiction to the hearing of the cause on the
merits. 401 U. S. 972.
I
We consider first the claim that these appeals are moot.
This claim is based upon the proposition, as stated in
appellee Hartke's brief, that the "basic issue" before the
Court is "whether appellee Hartke or appellant Roudebush
is entitled to the office of United States Senator
from Indiana." Since the Senate has now seated Hartke,
and since this Court is without power to alter the Sen-
4 Direct appeals from such interlocutory orders are authorized by
28 U. S. C. § 1253.
5 117 Cong. Rec. 6.
ROUDEBUSH v. HARTKE 19
15 Opinion of the Court
ate's judgment,6 it follows, the argument goes, that
the cause is moot.
The difficulty with this argument is that it is based
on an erroneous statement of the "basic issue." Which
candidate is entitled to be seated in the Senate is, to
be sure, a nonjusticiable political question-a question
that would not have been the business of this Court even
before the Senate acted.7 The actual question before
us, however, is a different one. It is whether an Indiana
recount of the votes in the 1970 election is a valid exercise
of the State's power, under Art. I, § 4, to prescribe
the times, places, and manner of holding elections,8 or
is a forbidden infringement upon the Senate's power
under Art. I, § 5.
That question is not moot, because the Senate has
postponed making a final determination of who is entitled
to the office of Senator, pending the outcome of
this lawsuit. Once this case is resolved arid the Senate
is assured that it has received the final Indiana tally,
the Senate will be free to make an unconditional and
final judgment under Art. I, § 5. Until that judgment
is made, this controversy remains alive, and we are
obliged to consider it.9
6 See Reed v. County Comm'rs, 277 U.S. 376, 388: "[The Senate]
is the judge of the elections, returns and qualifications of its
members. Art. I, § 5. It is fully empowered, and may determine
such matters without the aid of the House of Representatives or the
Executive or Judicial Department."
1 Powell v. McCormack, 395 U. S. 486.
8 U. S. Const., Art. I, § 4, provides in pertinent part:
"The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or
alter such Regulations, except as to the Place~ of chusing Senators."
9 See Powell v. McCormack, supra, at 496.
20 OCTOBER TERM, 1971
Opinion of the Court 40fi U.S.
II
It is the position of the appellants that, quite apart
from the merits of the controversy, the three-judge District
Court was barred from issuing an injunction by
reason of 28 U. S. C. § 2283, which prohibits a federal
court from enjoining state court proceedings except in
a few specific instances.10 This argument has weight,
of course, only if the Indiana statutory recount procedure
is a "proceeding in a State court" within the
meaning of § 2283. This Court has said of a predecessor
to § 2283,11 "The provision expresses on its face the duty
of 'hands off' by the federal courts in the use of the
injunction to stay litigation in a state court." 12 More
recently, we characterized the statute as designed to
assure "the maintenance of state judicial systems for
the decision of legal controversies." 13
We have in the past recognized that not every state
court function involves "litigation" or "legal controversies."
In the case of Prentis v. Atlantic Coast Line R.
Co., 211 U. S. 210, the Court reviewed a federal injunction
preventing a state commission from fixing passenger
rail rates. The Court assumed that the commission
had the powers of a state court and that the predecessor
of § 2283 governed any attempt by a federal court to
enjoin the exercise of the commission's judicial powers.
10 Title 28 U. S. C. § 2283 provides:
"A court of the United States may not grant an injunrtion to stay
proceedings in a State court except as expressly authorized by Act
of Congress, or where necessary in aid of its jurisdiction, or to protect
or effectuate its judgments."
11 The statute dates from 1793. Act of Mar. 2, 1793, § 5, 1 Stat.
334.
12 Toucey v. New York Life Ins. Co., 314 U. S. 118, 132. (Emphasis
supplied.)
ia Atlantic Coast Line R. Co. v. Brotherhood of Locomotive
Engineers, 398 U. S. 281, 285. (Emphasis supplied.)
ROUDEBUSH v. HARTKE 21
15 Opinion of the Court
Nevertheless, the Court concluded that rate-making
could be enjoined because it was legislative in nature.
Hence, the Court held that § 2283 does not restrict a
federal court from enjoining a state court when it is
involved in a nonjudicial function.
To determine whether an Indiana court engages in
a judicial function in connection with an election recount,
we turn to the law of that State.'4 In Indiana
every candidate has a right to a recount and can obtain
one by merely filing a timely petition in the circuit or
superior court of the appropriate county. If the petition
is correct as to form, the state court "shall . . .
grant such petition ... and order the recount .... "
When it grants a petition, the court is required to appoint
three commissioners to carry out the recount.
Once these appointments are made, the Indiana court
has no other responsibilities or powers.15
The exercise of these limited responsibilities does not
constitute a court proceeding under § 2283 within the
test of Prentis: "A judicial inquiry investigates, declares
and enforces liabilities as they stand on present or past
facts and under laws supposed already to exist. That
is its purpose and end." 211 U. S., at 226. The
state courts' duties in connection with a recount may
be characterized as ministerial, or perhaps administrative,
but they clearly do not fall within this definition
of a "judicial inquiry." The process of determining that
the recount petition is correct as to form-that it contains
the proper information, such as the names and addresses
of all candidates, and is timely filed-is clearly
not a judicial proceeding. Nonjudicial functionaries
14 See Hill v. Martin, 296 U. S. 393, 398.
15 Ind. Ann. Stat. §§ 29-5401 through 29-5417. The election
recount provisions of some other States appear to give the state
courts a broader function. See, e.g., Conn. Gen. Stat. Rev.§ 9-323;
Va. Code Ann. § 24-277.1 (1969).
22 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
continually make similar determinations in the processing
of all kinds of applications.16
And finally, Hartke's complaint in this cause did not
ask the three-judge federal court to restrain the action
of the Indiana court as such. It did not seek to enjoin
the state court from ruling on the formal correctness
of the petition; it did not even seek to enjoin the state
court's appointive function. It sought, rather, to enjoin
the recount commission from proceeding after the court
had appointed the members of the commission.11
16 The role of the Indiana courts in this connection is not unlike
that of the state court in the case of Public Service Co. of Northern
Illinois v. Corboy, 250 U. S. 153. A state statute there authorized
property owners to petition a state court to establish a drainage
district and to construct a drainage ditch. To assist in the planning
of a ditch, the state court was empowered to appoint a drainage
commissioner. The commissioner served on a commission that submitted
plans for construction. The state court could either accept
or reject these submissions. If it approved plans, the court allocated
funds and supervised construction. Applying Prentis, this Court
held that these activities were not judicial, and that enjoining the
construction of a drainage ditch was not enjoining a state court "proceeding."
See also Central Electric & Gas Co. v. City of Stromsburg,
192 F. Supp. 280, aff'd, 289 F. 2d 217 (federal court could enjoin
a state court's appointment of an appraiser pursuant to a state
statute); Central R. Co. of New Jersey v. Martin, 19 F. Supp.
82, aff'd sub nom. Lehigh Valley R. Co. v. Martin, 100 F. 2d 139
(federal court could enjoin ministerial act of state judge, pursuant
to state statute, converting a state tax into a lien against the taxpayer);
Weil v. Calhoun, 25 F. 865 (federal court could enjoin a
state ordinary, having the powers of a probate judge, from declaring
the results of a county election).
17 The only injunctive relief sought in Hartke's amended complaint
was "that the court permanently restrain and enjoin the defendants
and restraining and enjoining the defendants Samuel Walker,
John R. Hammond and Duge Butler [the recount commissionersJ
from convening and commencing a recount, and the defendant
Richard L. Roudebush and all persons acting in his behalf or in
concert with him [from] taking any further action to use said
machinery and procedures to carry forward a recount of the vote
ROUDEBUSH v. HARTKE 23
15 Opinion of the Court
We conclude that the three-judge District Court was
not prohibited by § 2283 from issuing and had power
under 28 U. S. C. § 2281 to issue, an injunction in this
cause.
III
We turn, therefore, to the merits of the District Court's
decision. The Indiana Election Code calls for the vote
to be initially counted, in each precinct, by an election
board. After recording the voting machine totals, the
board seals the machines. Paper ballots, including absentee
ballots, are then counted and tallied. Counted
ballots are placed in a bag and sealed. Ballots that
bear distinguishing marks or are mutilated or do not
clearly reveal the voter's choice are not counted. These
rejected ballots are sealed in a separate bag. Both bags
are preserved for six months and may not be opened
except in the case of a recount.10
If a recount is conducted in any county, the voting
machine tallies are checked and the sealed bags containing
the paper ballots are opened. The recount commission
may make new and independent determinations
as to which ballots shall be counted. In other words,
it may reject ballots initially counted and count ballots
initially rejected. Disputes within the commission are
settled by a majority vote. When the commission finishes
its task it seals the ballots it counted in one bag,
and the ballots it rejected in another. Once the recount
is completed, all previous returns are superseded.19
The District Court held these procedures to be contrary
to the Constitution in two ways. First, the court
found that in making judgments as to which ballots to
for the office of United States Senator in the general election of
November 3, 1970." An interlocutory injunction against the same
defendants was also sought.
18 Ind. Ann. Stat. §§ 29-5201 through 29--5220.
19 Ind. Ann. Stat. §§ 29-5401 through 29-5417.
24 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
count, the recount commission would be judging the
qualifications of a member of the Senate. It held this
would be a usurpation of a power that only the Senate
could exercise. Second, it found that the Indiana ballots
and other election paraphernalia would be essential
evidence that the Senate might need to consider in
judging Hartke's qualifications. The court feared that
the recount might endanger the integrity of those materials
and increase the hazard of their accidental destruction.
Thus, the court held that, even if the commission
would not be usurping the Senate's exclusive power, it
would be hindering the Senate's exercise of that power.
We cannot agree with the District Court on either
ground.2° Unless Congress acts, Art. I, § 4, empowers
the States to regulate the conduct of senatorial elections.
21 This Court has recognized the breadth of those
powers: "It cannot be doubted that these comprehensive
words embrace authority to provide a complete
code for congressional elections. not only as to times
and places, but in relation to notices, registration, supervision
of voting, protection of voters, prevention of
fraud and corrupt practices, counting of votes, duties
of inspectors and canvassers, and making and publication
of election returns; in short, to enact the numerous
requirements as to procedure and safeguards which experience
shows are necessary in order to enforce the
20 The District Court cited three cases decided by the Indiana
Supreme Court as authority for its rulings. State ex rel. Batchelet
v. Dekalb Circuit Court, 248 Ind. 481, 229 N. E. 2d 798; State ex rel.
Beaman v. Circuit Court of Pike County, 229 Ind. 190, 96 N. E. 2d
671; State ex rel. Acker v. Reeves, 229 Ind. 126, 95 N. E. 2d 838.
These cases held that the Indiana Constitution prohibited recounts
in certain state elections. They do not address the federal constitutional
question at issue in this cause.
21 See n. 8, supra.
ROUDEBUSH v. HARTKE 25
15 Opinion of the Court
fundamental right involved." Smiley v. Holm, 285 U. S.
355,366.
Indiana has found, along with many other States, that
one procedure necessary to guard against irregularity
and error in the tabulation of votes is the availability
of a recount. Despite the fact that a certificate of election
may be issued to the leading candidate within 30
days after the election, the results are not final if a
candidate's option to compel a recount is exercised.22 A
recount is an integral part of the Indiana electoral
process and is within the ambit of the broad powers
delegated to the States by Art. I, § 4.
It is true that a State's verification of the accuracy
of election results pursuant to its Art. I, § 4, powers
is not totally separable from the Senate's power to judge
elections and returns. But a recount can be said to
"usurp" the Senate's function only if it frustrates the
Senate's ability to make an independent final judgment.
A recount does not prevent the Senate from independently
evaluating the election any more than the initial
count does. The Senate is free to accept or reject the
22 The Secretary of State is required by statute to certify to the
Governor the leading candidate as duly elected "as soon as he shall
receive" certified statements from the counties. The statutory period
for receiving those statements is 26 days. The Governor is required
to give a certificate of election to each certified candidate. Ind.
Ann. Stat. §§ 29-5306 through 29-5309.
A petition for a recount ma.y be filed 15 days after the election is
held. § 29-5403. The petition cannot be granted nor the recount
commission appointed by the court for another 25 days. § 29-5409.
The recount may not commence until at least five days after the
commission is appointed. § 29-5411. Additional time elapses before
the results are made final and the appropriate persons are notified.
Thus, the recount is unlikely to be completed before the Governor
becomes obligated by statute to issue a certificate of election based
on the initial count. Nevertheless, the recount supersedes the initial
count even though a certificate of election may have been issued.
§ 29- 5415.
26 OCTOBER TERM, 1971
DOUGLAS, J., dissenting in part 405 U.S.
apparent winner in either count,23 and, if it chooses, to
conduct its own recount.24
It would be no more than speculation to assume that
the Indiana recount procedure would impair such an
independent evaluation by the Senate. The District
Court's holding was based on a finding that a recount
would increase the probability of election fraud and accidental
destruction of ballots. But there is no reason
to suppose that a court-appointed recount commission
would be less honest or conscientious in the performance
of its duties than the precinct election boa.l'ds that initially
counted the ballots.
For the reasons expressed, we conclude that Art. I,
§ 5, of the Constitution, does not prohibit Indiana from
conducting a recount of the 1970 election ballots for
United States Senator. Accordingly, the judgment of
the District Court is reversed.
It is so ordered.
MR. JusTICE POWELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of these cases.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN
concurs, dissenting in part.
While I agree with the Court that the cases are not moot
and that the three-judge court was not barred by 28
U. S. C. § 2283 from issuing an injunction, I disagree on
the merits.
23 The Senate's power to judge the qualifications of its members
is limited to the qualifications expressly set forth in the Constitution.
Powell v. McCormack, 395 U. S. 486. One of those qualifications
is that a Senator be elected by the people of his State. U. S.
Const., Amend. XVII.
24 The Senate itself has recounted the votes in close elections in
States where there was no recount procedure. E. g., O'Conor v.
Markey, Senate Election, Expulsion and Censure Cases from 1789
to 1960, S. Doc. No. 71, 87th Cong., 2d Sess., 144 (1962).
ROUDEBUSH v. HARTKE 27
15 DouGLAs, J., dissenting in part
By virtue of Art. I, § 5, Senate custom, and this Court's
prior holdings, the Senate has exclusive authority to
settle a recount contest once the contestee has been
certified and seated, albeit conditionally.
Article I,§ 5, provides: "Each House shall be the Judge
of the Elections, Returns and Qualifications of its own
Members." To implement this authority, the Senate
has established a custom of resolving disagreements
over which of two or more candidates in a senatorial race
attracted more ballots. The apparent loser may initiate
the process by filing with the Senate a petition stating
(a) what voting irregularities he suspects, and (b) how
many votes were affected. Upon receipt of such a petition,
a special committee may be authorized to investigate
the charges alleged. If the allegations are not frivolous
and would be sufficient, if true, to alter the
apparent outcome of the election, actual ballots may be
and have been subpoenaed to Washington for recounting
by the committee. Also, witnesses may be required to
testify. The committee performs the function of deciding
both the factual issues and what allegations would
be sufficient to warrant favorable action on a petition.
Thus, in the Iowa senatorial campaign of 1924, Smith
Brookhart was the apparent winner over Daniel Steck,
who filed with the Senate the complaint that illegal
votes had been cast for his opponent. The petition
was referred to the Subcommittee on Privileges and
Elections which was authorized to make a full investigation.
It heard testimony and recounted the ballots
in Washington. The committee and eventually the Senate
agreed that, contrary to earlier assumptions, Steck
had won. Accordingly, Brookhart was replaced by Steck
as a Senator from Iowa. See Steck v. Brookhart, Senate
Election, Expulsion and Censure Cases from 1789 to
1960, S. Doc. No. 71, 87th Cong., 2d Sess., 116-117
(1962). See also Hurley v. Chavez, id., at 151 (upon re28
OCTOBER TERM, 1971
DOUGLAS, J., diSS€llting in part 405 U.S.
counting, the subcommittee and the Senate found that
neither candidate had won and the seat was declared
vacant); Sweeney v. Kilgore, id., at 145 (adjustments for
fraudulent campaign tactics were insufficient to reverse
official outcome); O'Conor v. Markey, id., at 144 (recount
of all votes cast in 1946 Maryland race revealed too
few mistakes to cause reversal in outcome); Willui v.
Van Ji:uys, id., at 138-139 (petition rejected as insufficient
grounds for recount); Bursurn v. Bratton, id., at 114 (recount
will not be conducted absent a showing of grounds
to doubt the accuracy of official count).
The Senate's procedure is flexible:
"The Senate has never perfected specific rules
for challenging the right of a claimant to serve,
inasmuch as each case presents different facts. The
practice has been to consider and act upon each
case on its own merits, although some general principles
have been evolved from the precedents
established.
"This practice of viewing each case affecting
claims to membership on its individual merits has
resulted in a variety of means by which the cases
are originated. The Senator-elect to a seat in the
Senate generally appears with his credentials. On
some occasions, when these credentials are presented,
some Senators will submit a motion that the credentials
be referred to the Committee on Rules and
Administration, and that, pending report, he be denied
the privilege of taking the oath of office. Upon
adoption of such a motion, the Senator-elect steps
aside and the Senate seat is vacant for the time
being. Any question or motion arising or made
upon the presentation of such credentials is privileged
and would be governed by a majority vote.
"On other occasions, the Senator-elect is permitted
to take the oath of office, and this is now regarded and
15
ROUDEBUSH v. HARTKE 29
DouGLAS, J., dissenting in part
followed as the proper procedure, but thereafter inquiry
as to his election is undertaken by the Senate.
Resolutions calling for such investigations may be
offered by any Senator. In an instance where a
newspaper charged a Senator had obtained his office
by illegal means, the Senator himself offered a resolution
calling for an investigation of the charges.
"The usual origin of such cases, however, is by
petition. The contestant may file such a petition,
protesting the seating of the contestee, and asserting
his own right to the seat in question. It is not
required to be filed prior to the swearing-in of the
contestee, and no rights are lost if filed afterwards.
In some cases, petitions have been signed and filed
by others than the contestant, simply protesting
against the seating of the contestee, without asserting
any claim in behalf of the defeated candidate.
Any number of citizens may submit such a petition;
and it might make charges of illegal practices in
the election, or of the improper use of money, or
even of the unfitness of the claimant to serve in the
United States Senate.
"A petition of contest is addressed to the U. S.
Senate, and may be laid before the Senate by the
presiding officer or formally presented by some Senator.
There is no prescribed form for such a petition.
It is somewhat analogous to a complaint filed
in a lawsuit. It customarily sets forth the grounds
or charges upon which the contest is based, and in
support of which proof is expected to be adduced.
The petition is usually referred to the Committee
on Rules and Administration, which has jurisdiction
over ' ... matters relating to the election of the
President, Vice President, or Members of Congress;
corrupt practices; contested elections; credentials
artd qualifications; [and] Federal elections
generally . . . .'
30 OCTOBER TERM, 1971
DOUGLAS , J ., dissenting in part 405 U.S.
"The Legislative Reorganization Act of 1946 empowers
each standing committee of the Senate, including
any subcommittee of any such committee,
to hold such hearings, to sit and act at such times
and places during the sessions, recesses, and adjourned
periods of the Senate, to require by subpena
or otherwise the attendance of such witnesses and
the production of such correspondence, books, papers,
and documents, to take such testimony and to
make such expenditures (not in excess of $10,000
for each committee during any Congress) as it deems
advisable. Each such committee may make investigations
into any matter within its jurisdiction and
may report such hearings as may be had by it."
S. Doc. No. 71, 87th Cong. , 2d Sess., vii-viii (1962).
The parties before the Court are apparently in agreement
that, as is true of several other arenas of public
decisionmaking, there has been a "textually demonstrable
constitutional commitment" (Baker v. Carr, 369
U. S. 186, 217; Powell v. McCormack, 395 U. S. 486, 518-
549) to the Senate of the decision whether Hartke or
Roudebush received more lawful votes. Our case law
agrees. Both Barry v. Cunningham, 279 U. S. 597, and
Reed v. County Comm'rs, 277 U. S. 376, were generated
during the disputed 1926 senatorial election in Pennsylvania
in which William Vare appeared to have defeated
William Wilson. In 1926 a Senate committee was authorized
to inquire into the means used to influence the
nomination of candidates in that election. The committee
asked some local county commissioners to produce
certain ballots but were refused, whereupon members of
the committee sought a federal court order compelling
the ballots' production. On appeal, this Court held
that because the Senate had been fully competent to
use its own subpoena power to secure the ballots, the
District Court had lacked jurisdiction to act only at
ROUDEBUSH v. HARTKE 31
15 DouGLAS, J., dissenting in part
the behest of the committee. In the course of discussing
the committee's scope of authority the Court said:
"The resolutions are to be construed having regard
to the power possessed and customarily exerted by
the Senate. It is the judge of the elections, returns
and qualifications of its members. Art. I,
§ 5. It is fully empowered, and may determine such
matters without the aid of the House of Representatives
or the Executive or Judicial Department. That
power carries with it authority to take such steps
as may be appropriate and necessary to secure information
upon which to decide concerning elections."
277 U. S., at 388.
In Barry v. Cunningham, supra, the Court upheld the
Senate's power under Art. I, § 5, to call witnesses before
it in order to determine the factual history of the same
controverted 1926 election involved in Reed. In answer
to the argument that Vare had not been a member of
the Senate inasmuch as he was unseated (and therefore
the witness was relieved of the duty to answer inquiries)
the Court held:
"It is enough to say ... that upon the face of
the returns [Vare] had been elected and had received
a certificate from the Governor of the state
to that effect. Upon these returns and with this
certificate, he presented himself to the Senate, claiming
all the rights of membership. Thereby, the
jurisdiction of the Senate to determine the rightfulness
of the claim was invoked and its power to adjudicate
such right immediately attached by virtue
of § 5 of Article I of the Constitution." Barry v.
Cunningham, supra, at 614.
And Cunningham holds that, "The Senate, having
sole authority under the Constitution to judge of the elections,
returns and qualifications of its members, may exer32
OCTOBER TERM, 1971
DOUGLAS, J ., dissenting in part 405 U.S.
cise in its own right the incidental power of compelling
the attendance of witnesses without the aid of a statute."
Id., at 619 (emphasis added). Judicial interference with
this "indubitable power" was said to be possible only
upon a clear showing of "such arbitrary and improvident
use of the power as will constitute a denial of due
process of law." Id., at 620.
Once certification by the Governor has been presented
to the Senate, a State may not by conducting a recount
alter the outcome of the election-a principle that has
been widely recognized by state courts. See Laxalt v.
Cannon, 80 Nev. 588, 397 P. 2d 466, and cases cited
therein.
Thus, although the Houses of Congress may not engraft
qualifications for membership beyond those already contained
in Art. I, Powell v. McCormack, 395 U. S. 486,
where all that is at stake is a determination of which
candidates attracted the greater number of lawful ballots,
each has supreme authority to resolve such controversies. 1
Although all agree that in the end the Senate will
be the final judge of this seating contest, the nub of the
instant case comes down to opposing positions on how
important it may be to preserve for the Senate the
opportunity to ground its choice in unimpeachable evidence.
It is with regard to this phase of the cases that I
disagree with the majority.
The Senate may conclude that only a recomputation
supervised by it under laboratory conditions could serve
as an acceptable guide for decision. Such a recomputation,
however, will not be possible once local investigators
have exposed these presently sealed ballots to human
judgment.
1 Several areas of decisionmaking are immune from judicial review
by federal courts. The cases are reviewed in Baker v. Carr, 369
U. S. 186.
ROUDEBUSH v. HARTKE 33
15 DouGLAS, J., dissenting in part
Obviously, state officials might desire to preview these
presently sealed ballots in order to influence the Senate's
deliberations.
Charges or suspicions of inadvertent or intentional
alteration, however baseless, will infect the case. No
longer will the constitutionally designated tribunal be
able to bottom its result on unassailed evidence. Since
even a slight adjustment in the tally could dramatically
reverse the outcome, the federal interest in preserving
the integrity of the evidence is manifest.
What the Senate should do in the merits is not a
justiciable controversy. The role of the courts is to
protect the Senate's exclusive jurisdiction over the subject
matter, as did this Court in Barry v. Cunningham,
supra. The Senate's Subcommittee on Privileges and
Elections, for exiimple, might subpoena these ballots,
thereby precluding, as a practical matter, any local recount.
Or the Senate might ask for a local recount.
Either course is within the control and discretion of the
Senate and is unreviewable by the courts. The District
Court had jurisdiction only to protect the Senate's choice,2
not to make the choice for or on behalf of the Senate.
I would affirm the judgment of the District Court.
2 Cf. Ex parte Peru, 318 U. S. 578.
34 OCTOBER TERM, 1971
Syllabus
PARISI v. DAVIDSON ET AL.
405 u. s.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 70-91. Argued October 19-20, 1971-Decided February 23, 1972
Petitioner, a member of the armed forces, applied unsuccessfully for
discharge as a conscientious objector. After he had exhausted all
his administrative remedies, he filed a habeas corpus petition in
Federal District Court, claiming that the Army's denial of his
application was without basis in fact. Thereafter court-martial
charges were brought against him, and the District Court ordered
consideration of the petition deferred until final determination of
the court-martial proceedings. The Court of Appeals affirmed.
II eld: The District Court should not have stayed its hand in this
case. Pp. 37-45.
(a) All alternative administrative remedies have been exhausted
by petitioner. Pp. 37-39.
(b) Since the military judicial system in its processing of the
court-martial charge could not provide the discharge sought by
petitioner with promptness and certainty, the District Court
should proceed to determine the habeas corpus claim despite the
pendency of the court-martial proceedings. Pp. 39-45.
435 F. 2d 299, reversed.
STEWART, J., delivered the opinion of the Court, in which BuRGER,
C. J., and BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined.
DouGLAS, J ., filed an opinion concurring in the result, post, p. 46.
PowELL and REHNQUIST, JJ., took no part in the consideration or
decision of the case.
Richard L. Goff argued the cause for petitioner. With
him on the briefs were George A. Blackstone and Stephen
V. Bomse.
William Terry Bray argued the cause for respondents.
On the brief were Solicitor General Griswold, Assistant
Attorney General M ardian, William Bradford Reynolds,
Robert L. Keuch, and Robert A. Crandall.
PARISI v. DAVIDSON 35
34 Opinion of the Court
MR. JUSTICE STEWART delivered the opinion of the
Court.
When a member of the armed forces has applied for
a discharge as a conscientious objector and has exhausted
all avenues of administrative relief, it is now settled that
he may seek habeas corpus relief in a federal district
court on the ground that the denial of his application
had no basis in fact. The question in this case is
whether the district court must stay its hand when
court-martial proceedings are pending against the
serviceman.
The petitioner, Joseph Parisi, was inducted into the
Army as a draftee in August 1968. Nine months later
he applied for a discharge as a conscientious objector,
claiming that earlier doubts about military service had
crystallized into a firm conviction that any form of military
activity conflicted irreconcilably with his religious
beliefs. He was interviewed by the base chaplain, the
base psychiatrist, and a special hearing officer. They all
attested to the petitioner's sincerity and to the religious
content of his professed beliefs. In addition, the commanding
general of the petitioner's Army training center
and the commander of the Army hospital recommended
that the petitioner be discharged as a conscientious
objector. His immediate commanding officer, an Army
captain, disagreed, recommending disapproval of the application
on the ground that the petitioner's beliefs
were based on essentially political, sociological, or philosophical
views, or on a merely personal moral code.
In November 1969, the Department of the Army denied
the petitioner conscientious objector status, on the
grounds that his professed beliefs had become fixed prior
to entering the service and that his opposition to war
was not truly based upon his religious beliefs. On November
24, 1969, the petitioner applied to the Army
Board for Correction of Military Records (hereafter
36 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
sometimes ABCMR) for administrative review of that
determination.
Four days later the petitioner commenced the present
habeas corpus proceeding in the United States District
Court for the Northern District of California, claiming
that the Army's denial of his conscientious objector application
was without basis in fact. He sought discharge
from the Army and requested a preliminary
injunction to prevent his transfer out of the jurisdiction
of the District Court and to prohibit further training
preparatory to being transferred to Vietnam. The District
Court declined at that time to consider the merits
of the habeas corpus petition, but it retained jurisdiction
pending a decision by the ABCMR, and in the
meantime enjoined Army authorities from requiring the
petitioner to participate in activity or training beyond
his current noncombatant duties.
Shortly thereafter the petitioner received orders to
report to Fort Lewis, Washington, for deployment to
Vietnam, where he was to perform noncombatant duties
similar to those that had been assigned to him in this
country. He sought a stay of this redeployment order
pending appeal of the denial of habeas corpus, but his
application was denied by the Court of Appeals, on the
condition that the Army would produce him if the
appeal should result in his favor. A similar stay application
was subsequently denied by MR. JusTICE DOUGLAS
as Ninth Circuit Justice, Parisi, v. Davidson, 396 U. S.
1233. The petitioner then reported to Fort Lewis. He
refused, however, to obey a military order to board a
plane for Vietnam. As a result, he was charged with
violating Art. 90 of the Uniform Code of Military Justice,
10 U. S. C. § 890, and, on April 8, 1970, a courtmartial
convicted him of that military offense.1
1 At the time of oral argument of the present case, an appeal from
this conviction was pending in a court of military review.
PARISI v. DAVIDSON 37
34 Opinion of the Court
While the court-martial charges were pending, the
Army Board for Correction of Military Records notified
the petitioner that it had rejected his application for
relief from the Army's denial of his conscientious objector
application. The District Court then ordered the Army
to show cause why the pending writ of habeas corpus
should not issue. On the Government's motion, the
District Court, on March 31, 1970, entered an order
def erring consideration of the habeas corpus petition
until final determination of the criminal charge then
pending in the military court system. The Court of
Appeals for the Ninth Circuit affirmed this order, concluding
that "habeas proceedings were properly stayed
pending the final conclusion of Parisi's military trial and
his appeals therefrom," 435 F. 2d 299, 302. We granted
certiorari, 402 U. S. 942.
In affirming the stay of the petitioner's federal habeas
corpus proceeding until completion of the military
courts' action, the Court of Appeals relied on the related
doctrines of exhaustion of alternative remedies and
comity between the federal civilian courts and the military
system of justice. We hold today that neither
of these doctrines required a stay of the habeas corpus
proceedings in this case.
With respect to available admini.strative remedies,
there can be no doubt that the petitioner has fully met
the demands of the doctrine of exhaustion-a doctrine
that must be applied in each case with an "understanding
of its purposes and of the particular administrative
scheme involved." McKart v. United States, 395 U. S.
185, 193. The basic purpose of the exhaustion doctrine
is to allow an administrative agency to perform functions
within its special competence-to make a factual record,
to apply its expertise, and to correct its own errors so
as to moot judicial controversies. Id., at 194--195;
38 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
McGee v. United States, 402 U. S. 479, 485; K. Davis,
Administrative Law Treatise§ 20.01 et seq. (Supp. 1970).
In this case the petitioner fully complied with Army
Regulation 635-20, which dictates the procedures to be
followed by a serviceman seeking classification as a conscientious
objector on the basis of beliefs that develop
after induction.2 Moreover, following a rule of the
Ninth Circuit then in effect,3 he went further and appealed
to the Army Board for Correction of Military
Records! The procedures and corrective opportunities
2 The right of a person in the armed forces to be classified as a
conscientious objector after induction is bottomed on Department
of Defense Directive No. 1300.6 (May 10, 1968), issued by the
Secretary of Defense pursuant to his authority under IO U. S. C.
§ 133. The purpose of the directive is to provide "uniform procedures
for the utilization of conscientious objectors in the Armed
Forces and consideration of requests for discharge on the grounds
of conscientious objection." Army Regulation 635-20 was issued
to effectuate the broader policies announced in DOD Directive
No. 1300.6.
3 Under the rule of Craycroft v. Ferral,l, 408 F. 2d 587 (CA9
1969), the petitioner was required to appeal the Department of the
Army's decision to the civilian Army Board for Correction of
Military Records in order to exhaust military administrative remedies
and have access to federal court. Current governmental policy
rejects Craycroft. Compliance with Army Regulation 635-20, not
perfection of an ABCMR appeal, marks the point when military
administrative procedures have been exhausted. Department of
Justice Memo. No. 652 (Oct. 23, 1969). In Craycroft v. Ferrall,
397 U. S. 335, this Court vacated the judgment of the Ninth Circuit
that the petitioner there had to appeal to the Board for the
Correction of Naval Records before proceeding in federal court.
But our decision was announced on March 30, 1970, more than four
months after the present petitioner had appealed to the ABCMR.
• In 1946, Congress enacted legislation empowering the service
secretaries, acting through boards of civilian officers of their respective
departments, to alter military records when necessary to prevent
injustice. Legislative Reorganization Act of 1946, § 207, 60
Stat. 837, as amended by 70A Stat. 116, 10 U. S. C. § 1552 (1952
PARISI v. DAVIDSON 39
34 Opinion of the Court
of the military administrative apparatus had thus been
wholly utilized at the time the District Court entered
its order deferring consideration of the petitioner's habeas
corpus application.
It is clear, therefore, that, if the court-martial charge
had not intervened, the District Court would have been
wrong in not proceeding to an expeditious consideration
of the merits of the petitioner's claim. For the writ of
habeas corpus has long been recognized as the appropriate
remedy for servicemen who claim to be unlawfully
retained in the armed forces. See, e. g., Eagles v. Samuels,
329 U. S. 304, 312; Oestereich v. Selective Service
Board, 393 U. S. 233, 235; Schlanger v. Seamam, 401
U. S. 487, 489. And, as stated at the outset, that writ
is available to consider the plea of an in•service applicant
for discharge as a conscientious objector who claims that
exhaustion of military administrative procedures has
led only to a factually baseless denial of his application.
In re Kelly, 401 F. 2d 211 (CA5); Hammond v. LMfest,
398 F. 2d 705 (CA2).5
But since a court-martial charge was pending against
the petitioner when he sought habeas corpus in March
1970, the respondents submit that the Court of Appeals
was correct in holding that the District Court must
ed., Supp. IV). Pursuant to this legislation, each service established
a board for the correction of military records whose function
is, on application by a serviceman, to review the military record
and intervene where necessary to correct error or remove injustice.
10 U. S. C. § 1552 (a).
5 The Department of Justice, in consultation with the Department
of Defense, has accepted the holdings of the Kelly and Hammond
cases. Department of Justice Memo. No. 652 (Oct. 23, 1969).
See United States ex rel. Brooks v. Clifford, 409 F. 2d 700, 701
(CA4). Compare Noyd v. McNamara, 378 F. 2d 538 (CAlO), with
Polsky v. Wetherill, 403 U.S. 916, vacating judgment in 438 F. 2d
132 (CAlO).
40 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
await the final outcome of those charges in the military
judicial system before it may consider the merits of the
petitioner's habeas corpus claim. Although this argument,
too, is framed in terms of "exhaustion," it may
more accurately be understood as based upon the appropriate
demands of comity between two separate judicial
systems.6 Requiring the District Court to defer to the
military courts in these circumstances serves the interests
of comity, the respondents argue, by aiding the military
judiciary in its task of maintaining order and
discipline in the armed services and by eliminating "needless
friction" between the federal civilian and military
judicial systems. The respondents note that the military
constitutes a "specialized community governed by
a separate discipline from that of the civilian," Orloff v.
Willoughby, 345 U. S. 83, 94; Gusik v. Schilder, 340
U. S. 128, and that in recognition of the special nature
of the military community, Congress has created an
autonomous military judicial system, pursuant to Art. I,
6 The respondents do not contend that the military courts have
a special competence in determining if a consrientious objertor
application has been denied without basis in fact. As they acknowledge
in their brief:
"Plainly, judicial review of the factual basis for the Army's
denial of petitioner's conscientious objector rlaim does not require
an interpretation of 'extremely technical provisions of the Uniform
Code [of Military Justicel which have no analogs in civilian juri,iprudence,'"
quoting Noyd v. Bond, 395 U. S. 683, 696.
Thus,. it is not rontended that exhaustion of military court remedies-
like exhaustion of military administrative remedies-is required
by the principles announced in M cKart v. United States,
395 U. S. 185, and McGee v. United States, 402 U. S. 479.
The concept of "exhaustion" in the context of the demands of
comity between different judirial systems is closely analogous to the
doctrine of abstention. For a discussion of the exhaustion and
abstention dortrines in tlH' frderal-state context, see generally
C. Wright, Handbook of the Law of Federal Courts 186-188, 196-
208 (2d ed. 1970).
PARISI v. DAVIDSON 41
34 Opinion of the Court
§ 8, of the Constitution.7 They further point out that
civilian courts, out of respect for the separation-of-powers
doctrine and for the needs of the military, have rightly
been reluctant to interfere with military judicial
proceedings. 8
But the issue in this case does not concern a federal
district court's direct intervention in a case arising in
the military court system. Cf. Gusik v. Schilder,
supra; Noyd v. Bond, 395 U. S. 683. The petitioner's
application for an administrative discharge-upon which
the habeas corpus petition was based-antedated and
was independent of the military criminal proceedings.
The question here, therefore, is whether a federal court
should postpone adjudication of an independent civil
lawsuit clearly within its original jurisdiction. Under
accepted principles of comity, the court should stay its
hand only if the relief the petitioner seeks-discharge
as a conscientious objector-would also be available to
him with reasonable promptness and certainty through
the machinery of the military judicial system in its
7 Barker, Military Law-A Separate System of Jurisprudence,
36 U. Cin. L. Rev. 223 (1967); Warren, The Bill of Rights and
the Military, 37 N. Y. U. L. Rev. 181 (1962). Military courts are
legislative courts; their jurisdiction is independent of Art. III
judicial power. Following World War II, Congress, in an attempt
to reform and modernize the system of military law, ('reated the
Uniform Code of Military Justice, Act of May 5, 1950, c. 169, 64
Stat. 107. In 1968, the Code was amended by the Military Justice
Act, 10 U. S. C. § 819, to improve court-martial and review
procedures.
8 See Hammond v. Lenfest, 398 F. 2d 705, 710 (CA2 1968):
"Judicial hesitancy when faced with matters touching on military
affairs is hardly surprising in view of the doctrine of separation
of powers and the responsibility for national defense which the
Constitution .. places upon the Congress and the President.
Moreover, the ever-present and urgent need for discipline in the
armed services would alone explain the rPlative freedom of the
military from judicial supervision."
42 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
processing of the court-martial charge. Griffin v.
County School Board of Prince Edward County, 377
U. S. 218, 229; Davis v. Mann, 377 U. S. 678, 690----691;
Lucas v. Forty-Fourth General Assembly of Colorado,
377 U. S. 713, 716--717. For the reasons that follow,
we are not persuaded that such relief would be even
potentially available, much less that it would be either
prompt or certain.
Courts-martial are not convened to review and rectify
administrative denials of conscientious objector claims or
to release conscientious objectors from military service.
They are convened to adjudicate charges of criminal violations
of military law. It is true that the Court of
Military Appeals has held that a soldier charged in a
court-martial with refusal to obey a lawful order may,
in certain limited circumstances, defend upon the ground
that the order was not lawful because he had wrongfully
been denied an administrative discharge as a conscientious
objector. United States v. Noyd, 18 U.S. C. M.A.
483, 40 C. M. R. 195. 9 The scope of the Noyd doctrine
is narrow, United States v. Wilson, 19 U. S. C. M. A. 100,
9 Army Regulation 635-20 provides that
"individuals who have submitted formal applications [for conscientious
objector status] ... will be retained in their units
and assigned duties providing the minimum practicable conflict with
their asserted beliefs pending a final decision on their applications."
Noyd involved an Air Force officer who, after being denied conscientious
objector status, refused to obey an order to instruct
student pilots to fly a fighter plane used in Vietnam. Noyd's
commanding officer had refrained from ordering the accused to
give such instruction until the application had been processed and
denied. As the Court of Military Appeals said:
"The validity of the order [ to instruct students], therefore,
depended upon the validity of the Secretary's decision [rejecting
the conscientious objector application] ... If the Secretary's decision
was illegal, the order it generated was also illegal." United
States v. Noyd, 18 U. S. 0. M. A. 483, 492, 40 0. M. R. 195, 204.
PARISI v. DAVIDSON 43
34 Opinion of the Court
41 C. M. R. 100, and its present vitality not wholly clear,
United States v. Stewart, 20 U. S. C. M. A. 272, 43
C. M. R. 112. AN oyd defense, therefore, would be available,
even arguably, only in an extremely limited category
of court-martial proceedings. But even though we
proceed on the assumption that Noyd offered this petitioner
a potential affirmative defense to the court-martial
charge brought against him,'0 the fact remains that the
Noyd doctrine offers, at best, no more than a defense to a
criminal charge. Like any other legal or factual defense,
it would, if successfully asserted at trial or on appeal,
entitle the defendant to only an acquittal 11- not
to the discharge from military service that he seeks in
the habeas corpus proceeding.
The respondents acknowledge, as they must, the limited
function of a Noyd defense in the trial and appeal
of the court-martial proceeding itself. But they suggest
that, if the military courts should eventually acquit the
petitioner on the ground of his Noyd defense, then the
petitioner may have "an available remedy by way of
habeas corpus in the Court of Military Appeals." '"
In support of this suggestion, the respondents point to
the All Writs Act, 28 U. S. C. § 1651 (a) , and to cases
in which the Court of Military Appeals has exercised
10 The petitioner did, in fact, interpose a Noyd defense at his
court-martial trial, and it was rejected upon the military judge's
finding that "the ruling of the Secretary of the Army was not
arbitrary, capricious, unreasonable, or an abusive [sic] discretion."
11 We have been referred to no reported military court decision
(including Noyd itself) that has yet acquitted a defendant upon the
basis of a Noyd defense.
12 If the military courts should ultimately acquit the petitioner
on grounds other than wrongful denial of his conscientious objector
application, the respondents acknowledge that he could not seek
habeas corpus in the military judicial system. In this event, therefore,
the petitioner could clearly not obtain the relief that he
seeks in the military court system.
44 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
power under that Act to order servicemen released from
military imprisonment pending appeals of their courtmartial
convictions. See A~oyd v. Bond, 395 U. S., at
695; Levy v. Resor, 17 U. S. C. M. A. 135, 37 C. M. R.
399; United States v. Jennings, 19 U. S. C. M. A. 88,
41 C. M. R. 88; Johnson v. United States, 19 U.S. C. M.A.
407, 42 C. M. R. 9.
But the All Writs Act only empowers courts to "issue
all writs necessary or appropriate in aid of their respective
jurisdictions ... ," and the jurisdiction of the
Court of Military Appeals is limited by the Uniform
Code of Military Justice to considering appeals from
court-martial convictions. 10 U. S. C. § 867; United
States v. Snyder, 18 U.S. C. M.A. 480, 40 C. M. R. 192.
That court has been given no "jurisdiction" to consider
a serviceman's claim for discharge from the military as
a conscientious objector.
Whether this conceptual difficulty might somehow be
surmounted is a question for the Court of Military Appeals
itself ultimately to decide. See United States v.
Bevilacqua, 18 V. S. C. M. A. 10, 12, 39 C. M. R. 10, 12.
But the short answer to the respondents' suggestion in
this case is the respondents' own concession that that
court has, to date, never so much as intimated that it
has power to issue a writ of habeas corpus granting
separation from military service to a conscientious objector.
We conclude here, therefore, as in Noyd v.
Bond, supra, at 698 n. 11, that the petitioner cannot
"properly be required to exhaust a remedy which
may not exist." 13 Accordingly, we reverse the judg-
13 This result is not inconsistent with the need to maintain order
and disripline in the military and to avoid needless friction between
the federal civilian and military judicial systems. If the Noyd
defense is availablE> and if the order that the petitioner disobeyed
was unlawful if his conscientious objector claim is valid, then allowing
him to proceed in federal district court as soon as military
PARISI v. DAVIDSON 45
34 Opinion of the Court
ment of the Court of Appeals and remand the case to
the District Court with directions to give expeditious
consideration to the merits of the petitioner's habeas
corpus application.
In holding as we do today that the pendency of courtmartial
proceedings must not delay a federal district
court's prompt determination of the conscientious objector
claim of a serviceman who has exhausted all administrative
remedies, we no more than recognize the historic
respect in this Nation for valid conscientious objection
to military service. See 50 U.S. C. App. § 456 (j); United
States v. Seeger, 380 U. S. 163.14 As the Defense Department
itself has recognized, "the Congress ... has
deemed it more essential to respect a man's religious
beliefs than to force him to serve in the Armed Forces."
Department of Defense Directive No. 1300.6 (May 10,
1968).
11dministrat.ive remedies have been exhausted does not affect military
discipline. For if the conscientious objector claim is valid,. the
Army can have no interest in punishing him for disobedience of
an unlawful order. If the conscientious objector claim is invalid,
then the Army can, of course, prosecute the petitioner for his alleged
disobedience of a lawful order.
Correlatively, if the charges in military court would be unaffected
by the validity of the conscientious objector claim, both the petitioner's
habeas corpus action and the criminal trial in military court
could proceed concurrently. See n. 15, infra. Needless to say, the
question whether wrongful denial of conscientious objector status
may be raised as a defense against various types of military charges
must remain with the military courts, as they exercise their special
function of administering military law.
u See generally Report of the National Advisory Commission on
Selective Service, In Pursuit of Equity: Who Serves When Not All
Serve? 48-51 (1967); Selective Sen·irt> System ::Vfonograph }Jo. 11,
Conscientious Objection (1950); Russell, Development of Conscientious
Objector Recognition in the United States, 20 Geo. Wash.
L. Rev. 409 (1952); Comment, God, the Army, and Judirial Review:
The In-Service Conscientious Objector, 56 Calif. L. Rev. 379
(1968).
46 OCTOBER TERM, 1971
DoUGLAS, J., concurring in result 405 U.S.
But our decision today should not be understood as
impinging upon the basic principles of comity that must
prevail between civilian courts and the military judicial
system. See, e. g., Noyd v. Bond, 395 U. S. 683; Bu.ms
v. Wilson, 346 U. S. 137; Orloff v. Willoughby, 345 U. S.
83; Gusik v. Schilder, 340 U. S. 128. Accordingly, a
federal district court, even though upholding the merits
of the conscientious objector claim of a serviceman
against whom court-martial charges are pending, should
give careful consideration to the appropriate demands
of comity in effectuating its habeas corpus decree.15
The judgment is reversed.
MR. JusTICE PowELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of this case.
MR. JUSTICE DouGLAS, concurring in the result.
I agree with the Court's view that habeas corpus is
an overriding remedy to test the jurisdiction of the
military to try or to detain a person. The classic case
is Ex parte Milligan, 4 Wall. 2, where habeas corpus
was issued on behalf of a civilian tried and convicted
in Indiana by a military tribunal. During the Civil War
all civil courts in that State were open and federal authority
had always been unopposed. While the President
15 In the present case the respondents acknowledge that if the
administrative denial of the petitioner's conscientious objector claim
had no basis in fact, then the court-martial charge against him is
invalid. It follows that, if he should prevail in the habeas corpus
proceeding, he is entitled to his immediate release from the military.
At the other end of the spectrum is the hypothetical case of a
court-martial charge that has no real connection with the conscientious
objector claim-e. g., a charge of stealing a fellow
soldier's watch. In such a case, a district court, even though
upholding the serviceman's conscientious objector claim, might condition
its order of discharge upon the completion of the court-martial
proceedings and service of any lawful sentence imposed.
PARISI v. DAVIDSON 47
34 DouGLAS, J., concurring in result
and the Congress had "suspended" the writ, id., at 115,
the suspension, said the Court, went no further than to
relieve the military from producing in the habeas corpus
court the person held or detained. "The Constitution
goes no further. It does not say after a writ of habeas
corpus is denied a citizen, that he shall be tried otherwise
than by the course of the common law; if it had
intended this result, it was easy by the use of direct
words to have accomplished it." Id., at 126.
Mr. Chief Justice Taney in Ex parte Merryman, 17
F. Cas. 144 (No. 9,487) (CC Md. 1861), held that the
President alone had no authority to suspend the writ, a
position that Lincoln did not honor. To date, the question
has never been resolved, and its decision is not relevant
to the present case. I mention the matter because
of the constitutional underpinning of the writ of habeas
corpus. Article I of the Constitution, in describing the
powers of the legislative branch, states in § 9 tha.t: "The
Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion
the public Safety may require it."
The Court has consistently reaffirmed the preferred
place of the Great Writ in our constitutional system.
Fay v. Noia, 372 U. S. 391, 400; Smith v. Bennett, 365
U. S. 708, 713.
Article III, § 1, gives Congress the power to "ordain
and establish" inferior federal courts; and § 2 subjects
the "appellate Jurisdiction'' of this Court to "such Exceptions,
and . . . such Regulations as the Congress
shall make." Once Congress withdrew from this Court
its appellate jurisdiction in habeas corpus cases. See
Ex parte McCardle, 6 Wall. 318, 7 Wall. 506. An Act
of Congress passed by the very first Congress ·provided
for the issuance of the writ. But as Chief Justice
Marshall said in Ex parte Bollman, 4 Cranch 75,
95, "for if the means be not in existence, the privilege
48 OCTOBER TERM, 1971
DOUGLAS, J ., concurring in result 405 U.S.
itself would be lost, although no law for its suspension
should be enacted." It is also true that "the meaning
of the term habeas corpus" is ascertained by resort
"to the common law;" yet "the power to award the writ
by any of the courts of the United States, must be given
by written law." Id., at 93-94.
What courts may do is dependent on statutes,1 save
as their jurisdiction is defined by the Constitution.
What federal judges may do, however, is a distinct question.
Authority to protect constitutional rights of individuals
is inherent in the authority of a federal judge,
conformably with Acts of Congress. The mandate in
Art. I, § 9, that "The Privilege of the Writ ... shall not
be suspended" must mean that its issuance, in a proper
case or controversy, is an implied power of any federal
judge.
We have ruled that even without congressional statutes
enforcing constitutional rights, the federal judges
have authority to enforce the federal guarantee. Fay v.
A'ew York, 332 "C'. S. 261, 283- 284, 285, 293; Katzenbach
v. Morgan, 384 U. S. 641, 647. Those cases involved protests
by individuals against state action. Certainly the
military does not stand in a preferred position.
The matter is germane to the present problem. For
here the military is charged with exceeding its proper
bounds in seeking to punish a person for claiming his statutory
and constitutional exemption from military serv-
1 It has been assumed that this Court has no jurisdiction to issue
an original writ of habeas corpus except when issuance of the writ
has been first denied by a lower court. R. Stern & E. Gressman,
Supreme Court Practice 419-420 ( 4th ed. 1969). But the Court
has not settled the question. See Hirota v. MacArthur, 335 U. S.
876, 338 u. s. 197.
Some members of the Court have felt that, absent statutory authorization,
the Court may not even transfer a petition for an original
writ of habeas corpus to a lower court. But that view has not
prevailed. See Chaapel v. Cochran, 369 U. S. 869.
PARISI v. DAVIDSON 49
34 Dou GLAS, J ., concurring in result
ice. The conflict between military prerogatives and
civilian judicial authority is as apparent in this case
as it was in Ex parte Milligan. A person who appropriately
shows that he is exempt from military duty
may not be punished for failure to submit. The question
is not one of comity between military and civilian tribunals.
One overriding function of habeas corpus is
to enable the civilian authority to keep the military
within bounds. The Court properly does just that in the
opinion announced today.
While the Court of Military Appeals has the authority
to issue the writ of habeas corpus, Noyd v. Bond, 395
U. S. 683, 695 n. 7; Levy v. Resor, 17 U. S. C. M. A. 135,
37 C. M. R. 399, we have never held that a challenge to
the military's jurisdiction to try a person must first be
sought there rather than in a federal district court.2 Of
2 See Billings v. Truesdell, 321 U. S. 542. This case involved a
Selective Service registrant whose conscientious objector claim was
rejected by the service. Billings subsequently t'eported as ordered
for induction, but refused to take the required oath. The oath was
then read to him, and he was told that his refusal to take it made no
difference; he was "in the army now." Id., at 545. When Billings
refused an order to submit to fingerprinting, military charges were
brought against him.
While the charges were pending, Billings sought federal habeas
corpus relief, challenging the military's jurisdiction to try him, on
the theory that he had not been lawfully inducted. The District
Court discharged the writ, and the Court of Appeals affirmed, but
this Court held that Billings' induction had indeed violated existing
statutory law, and ordered that the writ issue. Implicit in this holding
is an affirmation of the proposition that exhaustion of military
remedies, including pending court-martial, is not required of one
challenging the military's jurisdiction to try him in the first instance.
While Billings was decided before the enactment of the Uniform
Code of Military Justice, cases decided under the Code have reached
similar results. See, e. g ., M cElroy v. Guagliardo, 361 U. S. 281;
Reid v. Covert, 354 U. S. 1; Toth v. Quarles, 350 U. S. 11.
Noyd v. Bond, 395 U. S. 683, is not to the contrary. There, the
Court was faced with a serviceman who had refused to obey an order
50 OCTOBER TERM, 1971
DOUGLAS, J ., concurring in result 405 U.S.
course, where comity prevails, as it does between state and
federal courts, federal habeas corpus will be denied where
state habeas corpus or a like remedy is available but has
not been utilized. Ex parte Hawk, 321 U. S. 114. A
petitioner must, indeed, pursue his alleged state remedies
until it is shown that they do not exist or have been
futilely invoked.
The principle of comity was invoked by Congress when
it wrote in 28 U. S. C. § 2254 that federal habeas corpus
shall not be granted a person in state custody "unless it
appears that the applicallt has exhausted the remedies
available in the courts of the State." That principle of
comity is important in the operation of our federal system,
for both the States and the Federal Government
because of his asserted conscientious srruples against the war in Vietnam.
His court-martial conviC'tion was pending in the Court of
:\<Iilitary Appeals. The issue decided against him on his federal
habeas application, however, was not the jurisdiction of the military
to try him in the first inst.anre, but merely his entitlement to bail
pending disposition of his military appeals. The Court held that
his bail motion should first be presented to the Court of Military
Appeals; but we were explicit in distinguishing Guo.gliardo, Covert,
and Toth:
"The cited cases held that the Constitution barred the assertion of
court-martial jurisdiction over various classes of civilians connected
with the military, and it is true that this Court there vindicated
complainants' rlaims without requiring exhaustion of military remedies.
We did so, however, because we did not believe that the expertise
of military courts extended to the consideration of constitutional
claims of the type presented. Moreover, it appeared especially
unfair to require exhaustion of military remedies when the complainants
raised substantial arguments denying the right of the military
to try them at all. Neither of these factors is present in the
case before us." 395 U. S., at 696 n. 8.
Thus, Noyd supports the proposition that "exhaustion is not required
when a prisoner challenges the personal jurisdiction of the
military." Developments in the Law-Federal Habeas Corpus, 83
Harv. L. Rev. 1038, 1233 n. 169. And Parisi's challenge is precisely
of that nature.
PARISI v. DAVIDSON 51
34 DouaLAs, J., concurring in result
are administering programs relating to criminal justice.3
See Fay v. Noia, 372 U. S. 391. But "the principles of
federalism which enlighten the law of federal habeas
corpus for state prisoners are not relevant," Noyd v.
Bond, 395 U. S., at 694, to analogous questions involving
military prisoners. Military proceedings are different.
As we said in O'Calla.han v. Parker, 395 U. S. 258, 265,
"A court-martial is not yet an independent instrument
of justice but remains to a significant degree a specialized
part of the overall mechanism by which military discipline
is preserved."
Comity is "a doctrine which teaches that one court
should defer action on causes properly within its jurisdiction
until the courts of another sovereignty with concurrent
powers, and already cognizant of the litigation,
have had an opportunity to pass upon the matter." Darr
v. Burford, 339 U. S. 200, 204. But the Pentagon is not
yet sovereign. The military is simply another administrative
agency, insofar as judicial review is concerned.
Cf. Comment, 43 S. Cal. L. Rev. 356, 377-378. While
we have stated in the past that special deference is due
the military decisionmaking process, Gusik v. Schilder,
340 U. S. 128, this is so neither because of "comity," nor
the sanctity of the Executive Branch, but because of a
concern for the effect of judicial intervention on morale
and military discipline, and because of the civilian judiciary's
general unfamiliarity with "extremely technical
provisions of the Uniform Code [of Military Justice]
which have no analogs in civilian jurisprudence," Noyd v.
Bond, supra, at 696.
3 As Irving Brant says in the Bill of Rights 483 (1965), "the
essential differences between state and federal r.rimin11.I law, though
immense in subject matter, have little bearing on 'fundamental fairness'
or 'basic liberties.' These are involved when overlapping
jurisdictions produce double jeopardy, but the fundamentals of fairness
are not different in state and federal courts."
52 OCTOBER TERM, 1971
DouGLAs, J ., concurring in result 405 U.S.
The "special expertise" argument is of ten employed by
the defenders of the military court system. Thus, the
argument was advanced-and rejected-that the civilian
judges who were to staff the Court of Military Appeals
could not do service, absent military experience, to the
complicated, technical niceties of military law.4 See,
4 Many of today's critics of the Court of Military Appeals feel
that an insensitivity to military needs is the least of the court's
problems. Recent attacks have rested on the premise that, in fact,
the court has become too closely identified with the viewpoint of
the military establishment it is supposed to oversee. See, e. (J.,
R. Sherrill, Military Justice Is to Justice as Military Music Is to
Music 214--215 (1970). Critics must concede, however, that the
court has at least been partially successful in infusing civilian notions
of due process into the military justice system. See, e. g., E. Sherman,
Justice in the Military, in Conscience and Command 21, 28
(J. Finn ed. 1971). Thus, the court has extended to servicemen the
right to a speedy trial, United States v. Schalck, 14 U. S. C. M. A.
371, 34 C. M. R. 151; the right to confront witnesses, United States
v. Jacoby, 11 U. S. C. M. A. 428, 29 C. M. R. 244; the right to
protection against unreasonable searches and seizures, United States
v. Vierra, 14 U. S. C. M. A. 48, 33 C. M. R. 260; the privilege
against self-incrimination, United States v. Kemp, 13 U.S. C. M.A.
89, 32 C. M. R. 89; the right to a public trial, United States v.
Brown, 7 U. S. C. M. A. 251, 22 C. M. R. 41; the right to compulsory
service of process, United States v. Sweeney, 14 U. S. C.
M. A. 599, 34 C. M. R. 379; and the right to Miranda-type
warnings, United States v. Tempia, 16 U. S. C. M. A. 629, 37
C. M. R. 249.
Despite these advances, however, the military justice system's
disregard of the constitutional rights of servicemen is pervasive.
See Hearings on Constitutional Rights of Military Personnel before
the Subcommittee on Constitutional Rights of the Senate Committee
on the Judiciary, pursuant. to S. Res. No. 260, 87th Cong., 2d Sess.;
Joint Hearings on S. 745 et al. before the Subcommittee on Constitutional
Rights of the Senate Committee on the Judiciary and a
Special Subcommittee of the Senate Armed Services Committee,
89th Cong., 2d Sess., pts. 1 and 2. See also Summary-Report of
Hearings on Constitutional Rights of Military Personnel, by the
Subcommittee on Constitutional Rights of the Senate Committee on
tho Judiciary, pursuant to S. Res. No. 58, 88th Cong., 1st Sess.
(Comm. Print 1963).
PARISI v. DAVIDSON 53
34 DoUGLAS, J., concurring in result
e. g., 96 Cong. Rec. 1305-1306. But civilian courts
must deal with equally arcane matters in such areas
as patent, admiralty, tax, antitrust, and bankruptcy law,
on a daily basis.
Our system of specialized military courts, though
"necessary to an effective national defense establishment,"
O'Callahan v. Parker, 395 U. S., at 265, has roots in a system
almost alien to the system of justice provided by the
Bill of Rights, by Art. III, and by the special provision
for habeas corpus contained in Art. I, § 9. Military law
is primarily an instrument of discipline and a "military
trial is marked by the age-old manifest destiny of retributive
justice." Id., at 266.5 For the sake of discipline
and orderliness a person in the military service
must normally follow the military administrative procedure
and exhaust its requirements. Gusik v. Schilder,
340 U. S. 128. But once those administrative remedies
are exhausted, he must then be permitted to resort to
civilian courts 6 to make sure that the military regime acts
5 At the hearings on the proposed Uniform Code of Military Justice,
one witness analogized the military court-martial panel to a
jury appointed by the sheriff's office. Hearings on the Uniform
Code of Military Justice before a Subcommittee of the House Committee
on Armed Services, 81st Cong., 1st Sess., 630 (1949). Rep.
Sutton of Tennessee, himself a much-decorated veteran, summarized
his views on the state of military justice during World War II by
his statement, during the floor debates on the proposed Code, that
"[h]ad they used the Pentagon Building for what it was desig1wd, a
veteran's hospital, America would have been lots better off today."
95 Cong. Rec. 5727.
" The Federal Rules of Civil Procedure govern habeas corpus (Rule
81 (a) (2)), that remedy being civil in nature; and those Rules are
comprrhensive, including depositions and disco wry. Rules 26-37.
The Rules of Practice and Procedure of the Court of Military
Appeals (see the Rules ff. 10 U. S. C. A. § 867, Supp. 1972) contain
no provisions respecting habeas corpus.
While collateral remedies have been recognized by the Court of
Military Appeals since 1966, United States v. Frischholz, 16 U. S. C.
M. A. 150, 36 C. M. R. 306, and the express power to grant habeas
54 OCTOBER TERM, 1971
DOUGLA S, J ., concurring in result 405 U.S.
within the scope of statutes governing the problem and
any constitutional requirements. To repeat, both statutes;
and the Constitution 8 are implicated in the claims
of conscientious objectors.
Petitioner claims to be a conscientious objector and
therefore not subject to military orders. He was charged
with refusing to obey a military order sending him to
Vietnam and has been convicted of that offense. While
the court-martial charges against him were pending, he
exhausted all administrative remedies for relief from the
Army's denial of his conscientious objector application.
In theory he could pursue his remedies within the military
system by appealing the conviction or seeking habeas
corpus in the Court of Military Appeals. But he need
go no further than to exhaust his administrative remedies
for overruling the decision that he was not a conscientious
objector. If there is a statutory or constitutional reason
why he should not obey the order of the Army, that
agency is overreaching when it punishes him for his
refusal.
The Army has a separate discipline of its own and obviously
it fills a special need. But matters of the mind
and spirit, rooted in the First Amendment, are not in the
corpus relief was asserted in 1967, Levy v. Resor, 17 U. S. C. M. A.
135, 37 C. M. R. 399, the military prisoner is at a substantial disadvantage
compared to his civilian counterpart. See Uniform Code
of Military Justice, Arts. 32, 36, 46, and 49, 10 U. S. C. §§ 832,
836, 846, and 849. See Melnick, The Defendant's Right to Obtain
Evidence: An Examination of the 11ilitary Viewpoint, 29 Mil. L.
Rev. 1 (1965). See genera.Uy M. Comisky & L. Apothaker, Criminal
Procedure in the United States District and Military Courts
(1963). And see l'vlanual for Courts-Martial, 30f, 34, 115, 117,
and 145a (1968).
1 50 U. S. C. App. § 456 (j). See United States v. Seeger, 380
U.S. 163.
8 See Gillette v. United States, 401 U. S. 437, 463 (DouGLAs, J.,
dissenting).
PARISI v. DAVIDSON 55
34 DouGLAS, J., concurring in result
keeping of the military. Civil liberty and the military
regime have an "antagonism" that is "irreconcilable."
Ex parte Milligan, 4 Wall., at 124, 125. When the military
steps over those bounds, it leaves the area of its
expertise and forsakes its domain.9 The matter then becomes
one for civilian courts to resolve, consistent with
the statutes and with the Constitution.
9 Another factor militating against the Court's reliance on "comity"
in analyzing the insulation of the military justice system from civilian
review is the enormous power of the military in modern American
life.
"From an initial authorized strength of well under one thousand,
our army alone has grown into a behemoth numbering well over
a million men even in time of nominal peace. No longer does the
military lie dormant and unnoticed for years on end, coming to the
attention of the typical citizen only in time of war. Today every
male resident is a potential soldier, sailor, or airman; and it has been
estimated that even in time of peace such service occupies at least
four percent of the adult life of the average American reaching draft
age. As Mr. Chief Justice Warren recently observed:
" 'When the authority of the military has such a sweeping capacity
for affecting the lives of our citizenry, the wisdom of treating the
military establishment a.s an enclave beyond the reach of the civilian
courts almost inevitably is drawn into question.' [Warren, The Bill
of Rights and the Military, 37 N. Y. U. L. Rev. 181, 188.]"
Comment, God, the Army, and Judicial Review: The In-Service
Conscientious Objector, 56 Calif. L. Rev. 379, 446--447.
56 OCTOBER TERM, 1971
Syllabus
LINDSEY ET AL. v. NORMET ET AL.
405 U.S.
APPEAL FROM THE l." NITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
No. 70-5045. Argued November 15, 1971-
Decided February 23, 1972
Appellants, month-to-month tenants of appellee Normet; refused to
pay their monthly rent unless certain substandard conditions were
remedied, and appellee threatened eviction. Appellants filed a class
action seeking a declaratory judgment that the Oregon Forcible
Entry and Wrongful Detainer (FED) Statute was unconstitutional
on its face, and an injunction against its continued
enforcement. Appellants attacked principally ( 1) the requirement
of trial no later than six days after service of the complaint
unless security for accruing rent is provided, (2) the limitation
of triable issues to the tenant's default, defenses based on the
landlord's breach of duty to maintain the premises being precluded,
and (3) the requirement of posting bond on appeal, with
two sureties, in twice the amount of rent expected to accrue
pending appellate decision, this bond to be forfeited if the lower
court decision is affirmed. The District Court granted the motion
to dismiss the complaint, concluding that the statute did not
violate the Due Process or the Equal Protection Clause. Held:
1. Neither the early-trial provision nor the limitation on litigable
issues is invalid on its face under the Due Process Clause
of the Fourteenth Amendment. Pp. 64-69.
(a) The time for trial preparation is not unduly short where
the issue is simply whether the tenant has paid or has held over,
and the requirement for rent security for a continuance of the
action is not irrational or oppressive. Pp. 64-65.
(b) Appellants are not denied due process because rental
payments are not suspended while the alleged wrongdoings of the
landlord are litigated, as Oregon may treat the tenant's undertakings
and those of the landlord as independent covenants.
P. 68.
(c) Appellants are uot foreclosed from instituting suit against
the landlord and litigating their right to damages and other relief
in that action, nor have they shown that Oregon excludes any
"available" defenses on the limited questions at issue in an FED
suit. Pp. 65-66, 69.
56
LINDSEY v. NORMET 57
Syllabus
2. Neither the early-trial provision nor the limitation on litigable
issues is invalid on its face under the Equal Protection
Clause. Pp. 69-74.
(a) The State has the power to implement its legitimate
objective of achieving rapid and peaceful settlement of possessory
disputes between landlord and tenant by enacting special
provisions applicable only to such disputes. Pp. 70-73.
(b) Absent constitutional mandate, the assurance of adequate
housing and the definition of landlord-tenant relationships is a
legislative function. P. 74.
3. The double-bond prerequisite for appealing an FED action
does violate the Equal Protection Clause as it arbitrarily discriminates
against tenants wishing to appeal from adverse FED
decisions. It heavily burdens the statutory right of an FED
defendant to appeal and is not necessary to effectuate the State's
purpose of preserving the property at issue. Pp. 74-79.
Affirmed in part and reversed in part.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C. J., and STEWART, MARSHALL, and BLACKMUN, JJ., joined. DouGLAs,
.T., post, p. 79, and BnE:-.NAN, J., post, p. 90, filed opinions
dissenting in part. PowELL and REHNQUIST, JJ., took no part in
the consideration or decision of the case.
John H. Clough argued the cause for appellants. With
him on the briefs was Myron Moskovitz.
Theodore B. Jensen argued the cause for appellee Normet.
With him on the briefs ,vas Donald J. DeFrancq.
Briefs of arnici curiae urging reversal were filed by
Delane C. Carpenter for the Pima County Bar Assn.;
by Haward W. Dixon, Bruce S. Rogow, and Steven Rappaport
for Legal Services of Greater Miami, Inc.; by
Hden S. J·Vhite and Gerald D. McGonigle for New Hampshire
Legal Assistance; by W. J. Michael Cody I II for
Memphis and Shelby County Legal Services Assn., Inc.;
by Elizabeth M. Brooks for June Brooks; by Paul L.
McKaskle for \Vestern Center on Law and Poverty; by
Martin R. Glenn and John G. O' Mara for Legal Aid
Society of Louisville; by Andrea M. Alcarese for Legal
58 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
Aid Bureau, Inc.; by .Yancy E. LeBlanc for Community
Action for Legal Services, Inc., et al.; and by Franklin
Arthur Martens for Allen County Legal Aid Society et al.
MR. JusTICE WHITE delivered the opinion of the
Court.
This case presents the question of whether Oregon's
judicial procedure for eviction of tenants after nonpayment
of rent violates either the Equal Protection Clause
or the Due Process Clause of the Fourteenth Amendment.
The material facts were stipulated. Appellants were
the month-to-month tenants of appellee ~ormet 1 and
paid 5100 a month for the use of a single-family residence
in Portland, Oregon. On November 10, 1969, the City
Bureau of Buildings declared the dwelling unfit for habitation
due to substandard conditions on the premises.2 Appellants
requested appellee to make certain repairs which,
with one minor exception, appellee ref used to do. Appellants,
who had paid the November rent, refused to
1 The original complaint was filed on behalf of Donald and Edna
Lindsey, seven other named plaintiffs (one of whom was an intervenor),
and all other persons similarly situated. Permission to maintain
the suit as a class action was granted, App. 33, but the class
was not further defined. The other named plaintiffs raised claims
essentially similar to the Lindseys, who were the only two plaintiffs
to appeal and who are hereafter termed "appellants." Appellee Normet
was the owner of the seller's interest in the property rented to
the appellants and held the legal title to secure the purchaser's performance
of the contract of sale. An assignee of the purchaser's
interest in the contract had rented the residence to appellants. The
trial court found, however, that there was a landlord-tenant relationship
between appellee and appellants at the time the suit was filed.
App. 71.
i It was stipulated that city inspectors found rusted gutters,
broken windows , broken plaster, missing rear steps, and improper
sanitation, all in violation of the Portland Housing Code, and that
the in.spectors posted a notice that the dwelling was required to be
vacated within 30 days unless the owner could show cause why the
building should not be declared unfit for occupancy. App. 43.
LINDSEY v. NORMET 59
56 Opinion of the Court
pay the December rent until the requested improvements
had been made. Appellee's attorney wrote a letter on
December 15 threatening to "get a Court Order out on
this matter" unless the accrued rent was immediately
paid.
On January 7, 1970, however, before statutory eviction
procedures were begun in the Oregon courts, appellants
filed suit in federal district court under 42 U. S. C. § 1983
seeking a declaratory judgment that the Oregon Forcible
Entry and \Vrongful Detainer (hereinafter sometimes
FED) Statute, Ore. Rev. Stat. (ORS)§§ 105.105-105.160,3
3 In its entirety, the Oregon Forcible Entry and Wrongful Detainer
Statute provides:
"FORCIBLE ENTRY AND WRONGFUL DETAINER
"105.105 Entry to be lawful and peaceable only. No person shall
enter upon any land, tenement or other real property unless the right
of entry is given by law. When the right of entry is given by law
the entry shall be made in a. peaceable manner and without force.
"105.110 Action for forcible entry or wrongful detainer. When
a forcible entry is made upon any premises, or when an entry is
made in a peaceable manner and possession is held by force, the
person entitled to the premises may maintain in the county where
the property is situated an action to recover the possession thereof
in the circuit court, district court or before any justice of the peace
of the county.
"105.115 Causes of unlawful holding by force. The following are
causes of unlawful holding by force within the meaning of ORS
105.110 and 105.125:
" ( 1) When the tenant or person in possession of any premises fails
or refuses to pay rent within 10 days after it is due under the lease
or agreement under which he holds, or to deliver possession of the
premises after being in default on payment of rent for 10 days.
"(2) When the lease by its terms has expired and has not been
renewed, or when the tenant or person in possession is holding from
month to month, or year to year, and remains in possession after
notice to quit as provided in ORS 105.120, or is holding contrary
to any condition or covenant of the lease or is holding possession
without any written lease or agreement.
"105.120 Notice necessary to maintain action in certain cases;
waiver of notice; effect of advance payments of rent. ( 1) An action
60 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
was unconstitutional on its face, and an injunction against
its continued enforcement. A three-judge court was convened
under 28 U. S. C. § 2281, a temporary restraining
for the recovery of the possession of the prf'mises may be maintained
in cases provided in subsection (2) of ORS 105.115, when the
notice to terminate the tenancy or to quit has been served upon the
tenant or person in possession in the manner prescribed by ORS
91.110 and for the period prescribed by ORS 91.060 to 91.080 before
the commenC'ement of the action, unless the leasing or OCC'upation
is for the purpose of farming or agriculture, in which case such
notice must be served for a period of 90 days before the commencement
of the action.
"(2) Any person entering into the possession of real estate under
written lease as the tenant of another may, by the terms of his
lease, waive the giving of any notfre required by this section.
"(3) The service of a notice to quit upon a tenant or person in
possession does not authorize an action to be maintained against
him for the possession of premises before the expiration of any
period for which the tenant or person has paid the rent of the
premises in advance.
"105.125 Complaint. In an action pursuant to ORS 105.110 it
is sufficient to state in the complaint:
"(1) A description of the premises with convenient certainty;
"(2) That the defendant is in possession of the premises;
"(3) That he entered upon the premises with force or unlawfully
holds the premises with force; and
" ( 4) That the plaintiff is entitled to the possession of the premises.
"105.130 How action condu<'ted. Except as provided in ORS
105.135 to 105.160, an artion pursuant to ORS 105.110 shall be
conducted in all respects as other actions in courts of this state.
"105.135 Service and return of summons. The summons shall
be served and returned as in other actions. The service shall be
not less than two or more than four days before the day of trial
appointed by the court.
"105.140 Continuance. No continuance shall be granted for a
longer period than two days unless the defendant applying therefor
gives an undertaking to the adverse party with good and sufficient
security, to be approved by the court, conditioned for the payment
of the rent that may arcrue if judgment is rendered against the
defendant.
"105.145 Judgment on trial by court. If the action is tried by
LINDSEY v. NORMET 61
56 Opinion of the Court
order was issued against the enforcement of the FED
Statute, and appellants were ordered to make their rent
payments into an escrow account during the pendency of
the court without a jury, and after hearing the evidence it concludes
that the complaint is not true, it shall enter judgment against the
plaintiff for costs and disbursements. If the court finds the complaint
true or if judgment is rendered by default, it shall render a
general judgment against the defendant and in favor of the plaintiff,
for restitution of the premises and the costs and disbursements of
the action. If the court finds the complaint true in part, it shall
render judgment for the restitution of such part only, and the costs
and disbursements shall be taxed as the court deems just and
equitable.
"105.150 Verdict and judgment on trial by jury. If the action
i3 tried by a jury and they find the complaint true, they shall render
a general verdict of guilty against the defendant; if not true, they
shall render a general verdict of not guilty; if true in part, they
shall render a verdict setting forth the facts they find, and the court
shall render judgment according to the verdict.
"105.155 Form of execution. The execution, should judgment of
restitution be rendered, may be in the following fonn:
State of Oregon, l
County of --(s.
To the sheriff or any constable of the county:
Whereas, a certain action for the forcible entry and detention, (or
the forcible detention) of the following described premises, to wit:
- - - - - - - - - , lately tried before the above entitled court,
wherein - - - - - was plaintiff and - - -- - was defendant,
judgment was rendered on the - - day of - - , A. D., --, that
the plaintiff - - - - - have restitution of the premises, and also
that he recover the costs and disbursements in the sum of $---;
In the name of the State of Oregon, you are, therefore, hereby
commanded to cause the defendant and his goods and chattels to be
forthwith removed from the premises and the plaintiff is to have
restitution of the same. In the event the goods and chattels are
not promptly removed thereafter by the defendant you are authorized
and empowered to cause the same to be removed to a safe place
for storage. You are also commanded to levy on the goods and
62 OCTOBER TERM, 1971
Opinion of the Court 405U.S.
the District Court proceeding. A lengthy stipulation
of facts was agreed upon, a number of exhibits and depositions
were submitted, and the District Court then
granted appellee's motion to dismiss the complaint,4 after
concluding that the statute was not unconstitutional
under either the Due Process Clause or the Equal Protection
Clause of the Fourteenth Amendment.5 Appelchattels
of the defendant, and make the costs and disbursements,
aforesaid, and all accruing costs, and to make legal service and due
return of this writ.
Witness my hand and official seal (if issued out of a court of record)
this -- day of --, A. D., --.
Justice of the peace, or clerk
of the district or circuit court.
"105.160 Additional undertaking on appeal. If judgment is
rendered against the defendant for the restitution of the real property
described in the complaint, or any part thereof, no appeal shall be
taken by the defendant from the judgment until he gives, in addition
to the undertaking now required by law upon appeal, an undertaking
to the adverse party, with two sureties, who shall justify in
like manner as bail upon arrest, for the payment to the plaintiff if
the judgment is affirmed on appeal of twice the rental value of the
real property of which restitution is adjudged from the commencement
of the action in which the judgment was rendered until final
judgment in the action."
Civ. No. 70-8, Sept. 10, 1970, D. Ore. (unreported). Reprinted
at App. 72.
5 The District Court correctly declined to abstain from considering
the constitutionality of the FED Statute since: "The challenged
statute is clear. It is unlikely that an application of state law would
change the posture of the federal constitutional issues. No state
administrative process is involved. The case ha.s been thoroughly
briefed and argued on the merits, and is presented on a clear and
complete record." App. 73. Since the judicially created doctrine
of abstention involves duplication of effort and expense and an
attendant delay, see England v. Louisiana State Board of Medical
Examiners, 375 U. S. 411 , 418 (1964), this Court has emphasized
that it should be applied only "where the issue of state law is unLINDSEY
v. NORMET 63
56 Opinion of the Court
lants promptly appealed, and we noted probable
jurisdiction.6
I
The Oregon Forcible Entry and Wrongful Detainer
Statute establishes a procedure intended to insure that
any entry upon real property "shall be made in a peaceable
manner and without force." § 105.105. A landlord
may bring an action for possession whenever the tenant
has failed to pay rent within 10 days of its due date, when
the tenant is holding contrary to some other covenant
in a lease, and whenever the landlord has terminated the
rental arrangement by proper notice and the tenant remains
in possession after the expiration date specified
in the notice. § 105.115. Service of the complaint on
the tenant must be not less than two nor more than
four days before the trial date, § 105.135; a tenai1t may
obtain a two-day continuance, but grant of a longer
continuance is conditioned on a tenant's posting security
for the payment of any rent that may accrue, if the
plaintiff ultimately prevails, during the period of the
continuance. § 105.140. The suit may be tried to either
a judge or a jury, and the only issue is whether the a11egations
of the complaint are true, §§ 105.145, 105.150.
The only award that a plaintiff may recover is restitution
of possession. § 105.155. A defendant who loses such a
suit may appeal only if he obtains two sureties who
will provide security for the payment to the plaintiff,
if the defendant ultimately loses on appeal, of twice the
certain," Harman v. Forssenius, 380 U. S. 528, 534 (1965), and "only
in narrowly limited 'special circumstances,'" Zwickler v. Koota, 389
U. S. 241, 248 (1967) (citing Propper v. Clark, 337 U. S. 472, 492
( 1949)). See Reetz v. B ozanich, 397 U. S. 82 ( 1970). The Oregon
FED Statute had been in effect for over 100 years, and there is a
substantial body of interpretative decisions by the Oregon courts.
6 402U. S. 941 (1971).
64 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
rental value of the property from the time of commencement
of the action to final judgment. § 105.160.7
Appellants' principal attacks 8 are leveled at three characteristics
of the Oregon FED Statute: the requirement
of a trial no later than six days after service of the complaint
unless security for accruing rent is provided; the
provisions of § 105.145 which, either on their face or as
construed, are said to limit the triable issues in an FED
suit to the tenant's default and to preclude consideration
of defenses based on the landlord's breach of a duty to
maintain the premises; and the requirement of posting
bond on appeal from an adverse decision in twice the
amount of the rent expected to accrue pending appellate
decision. These provisions are asserted to violate both
the Equal Protection and Due Process Clauses of the
Fourteenth Amendment. Except for the appeal bond
requirement (see Part IV, infra), we reject these claims.
II
We are unable to conclude that either the early-trial
provision or the limitation on litigable issues is invalid
on its face under the Due Process Clause of the Fourteenth
Amendment. In those recurring cases where the
tenant fails to pay rent or holds over after expiration
of his tenancy and the issue in the ensuing litigation
7 If the FED action is initiated in the district court instead of
the circuit court, the double bond is required for a trial de novo in
the circuit court. ORS §§ 46.250, 53.090. Appellants do not, however,
contend that there is anything unconstitutional about the District
Court trial, except for the claims noted above, and they do not
contend that the dual level trial system itself violates their constitutional
rights. Brief for Appellants 63.
8 Appellants make a conclusory argument that allowing a landlord
to allege that the tenant is guilty of "unlawful holding by force"
is impermissible on grounds of vagueness. Brief for Appellants 58-
59. ORS § 105.115 adequately defines this term, however, see n. 3,
supra, and the District Court properly rejected this argument.
LINDSEY v. NORMET 65
56 Opinion of the Court
is simply whether he has paid or held over, we cannot
declare that the Oregon statute allows an unduly short
time for trial preparation. Tenants would appear to
have as much access to relevant facts as their landlord,
and they can be expected to know the terms of their
lease, whether they have paid their rent, whether they are
in possession of the premises, and whether they have
received a proper notice to quit, if one is necessary. Particularly
where, as here, rent has admittedly been deliberately
withheld and demand for payment made, claims
of prejudice from an early trial date are unpersuasive.
The provision for continuance of the action if the tenant
posts security for accruing rent means that in cases where
tenant defendants, unlike appellants, deny nonpayment
of rent and may require more time to prepare for litigation,
they will not be forced to trial if they provide for
rent payments in the interim. A requirement that the
tenant pay or provide for the payment of rent during the
continuance of the action is hardly irrational or oppressive.
It is customary to pay rent in advance, and the simplicity
of the issues in the typical FED action will usually
not require extended trial preparation and litigation, thus
making the posting of a large security deposit unnecessary.
Of course, it is possible for this provision to be
applied so as to deprive a tenant of a proper hearing
in specific situations, but there is no such showing made
here, and possible infirmity in other situations does not
render it invalid on its face.9
Nor does Oregon deny due process of law by restricting
the issues in FED actions to whether the tenant
has paid rent and honored the covenants he has assumed,
issues that may be fairly and fully litigated under the
Oregon procedure. The tenant is barred from raising
9 United States v. National, Dairy Corp., 372 U. S. 29, 32 (1963);
United States v. Raines, 362 U.S. 17, 22 (1960).
66 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
claims in the FED action that the landlord has failed
to maintain the premises, but the landlord is also barred
from claiming back rent or asserting other claims against
the tenant.10 The tenant is not foreclosed from instituting
his own action against the landlord and litigating
his right to damages or other relief in that action.11
"Due process requires that there be an opportunity
to present every available defense." American Surety
Co. v. Baldwin, 287 U. S. 156, 168 (1932). See also
Nickey v. Miss-issippi, 292 U.S. 393, 396 (1934). Appellants
do not deny, however, that there are available procedures
to litigate any claims against the landlord
cognizable in Oregon. Their claim is that they are denied
due process of law because the rental payments are not
suspended while the alleged wrongdoings of the landlord
are litigated.12 We see no constitutional barrier to Ore-
10 ORS § 16.220 (1) (i) provides that when a plaintiff joins an
FED action with an action for rental due, "the defendant shall
have the same time to answer, or otherwise plead, as is now
provided by law in actions for the recovery of rental due." ORS
§ 91.220 provides that accrued rent may be recovered in an
"action at law'' which is subject to the general rules of pleading
and procedure enumerated in § 16.010 and not the special FED
procedures.
11 Oregon also recognizes certain equitable defenses in FED actions,
see Leathers v. Peterson, 195 Ore. 62, 244 P. 2d 619 (1952) (mental
incompetence); Crossen v. Campbell, 102 Ore. 666, 202 P. 745 (1921)
(forfeiture of lease); Friedenthal v. Thompson, 146 Ore. 640, 31
P. 2d 643 (1934) (reformation of lease); Menefee Lumber Co. v.
Abrams, 138 Ore. 263, 5 P. 2d 709 (1931) (lessor's breach of dependent
covenant not to rent another part of premises to business
competitive with lessee-tried by stipulation), and ORS § 16.460
provides that when an equitable matter is interposed, the FED action
will be stayed until the equitable matters are determined. Apparently,
however, the defenses sought to be raised by appellants are
not in this category.
12 This claim is explicitly presented in the complaint: "For their
cause of action, said Plaintiffs set forth the following: ... (c) That
said Defendant-Landlords have a duty to refrain from taking retaliLINDSEY
v. NORMET 67
56 Opinion of the Court
gon's insistence that the tenant provide for accruing rent
pending judicial settlement of his disputes with the
lessor.13
The Court has twice held that it is permissible to
segregate an action for possession of property from other
actions arising out of the same factual situation that
may assert valid legal or equitable defenses or counterclaims.
In Grant Timber & Mfg. Co. v. Gray, 236 U. S.
133 (1915) (Holmes, J.), the Court upheld against due
process attack a Louisiana procedure that provided that
a defendant sued in a possessory action for real property
could not bring an action to establish title or present
equitable claims until after the possessory suit was
atory measures against said Plaintiffs as a result of this action or as
a result of reporting Housing Code violations or as a result of Plaintiffs
withholding rent to compel the Defendant-Landlords to repair
the premises." App. 24. Appellants stipulated that, if permitted,
they would raise various legal and equitable defenses (unconstitutionality
of the proceeding, illegality of contract, failure of consideration,
warranty of fitness of habitability, unclean hands of landlord)
if an FED action were brought against them. App. 44. It is sufficiently
clear from the District Court's pretrial order that all of the
parties, including the defendant state court judge, agreed that the
defenses appellants desired to press were unavailable in Oregon FED
actions. The District Court agreed that this accurately reflected
Oregon law. In these circumstances, therefore, there was no reason
for the District Court to abstain. See n. 5, supra.
13 At oral argument, appellants conceded that if a tenant remained
in possession without paying rent, a landlord might be deprived of
property without due process of law:
"Q: If you didn't have that deposit in escrow [rent paid by
tenants during litigation J, might you not be confronted with a
counter-suggestion that this is a taking of property without due
process, without compensation?
"Mr. Clough: Of course; that is correct.
"Q: But you would accept that as an invariable condition to
maintaining possession?
"Mr. Clough: Yes, we'd have no problem with that." Tr. of
Oral Arg. 14.
68 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
brought to a conclusion." In Bi,a.nchi v. Morcles, 262
U. S. 170 (1923) (Holmes, J.), the Court considered
Puerto Rico's mortgage law which provided for summary
foreclosure of a mortgage without allowing any defense
except payment. The Court concluded that it was permissible
under the Due Process Clause to "exclude all
claims of ultimate right from possessory actions," id.,
at 171, and to allow other equitable defenses to be set
up in a separate action to annul the mortgage.
Underlying appellants' claim is the assumption that
they are denied due process of law unless Oregon recognizes
the failure of the landlord to maintain the premises
as an operative defense to the possessory FED action
and as an adequate excuse for nonpayment of rent. The
Constitution has not federalized the substantive law of
landlord-tenant relations, however, and we see nothing
to forbid Oregon from treating the undertakings of the
tenant and those of the landlord as independent rather
than dependent covenants. Likewise, the Constitution
does not authorize us to require that the term of an
otherwise expired tenancy be extended while the tenant's
damage claims against the landlord are litigated. The
substantive law of landlord-tenant relations differs
14 "It would be a surprising extension of the Fourteenth Amendment
if it were held to prohibit the continuance of one of the most
universal and best known distinctions of the mediaeval law. From
the exceptio spolii of the Pseudo-Isidore the Canon Law and Braeton
to the assize of novel disseisin the principle was of very wide
application that a wrongful disturbance of possession must be righted
before a claim of title would be listened to---or at least that in a
proceeding to right such disturbance a claim of title could not be
set up; and from Kant to Ihering there has been much philosophising
as to the grounds. But it is unnecessary to follow the speculations
or to consider whether the principle is eternal or a no longer
useful survival. The constitutionality of the law is independent of
our views upon such points." Grant Timber & Mfg. Co, v. Gray,
236 u. S, 133, 134 (1915).
LINDSEY v. NORMET 69
56 Opinion of the Court
widely in the various States. In some jurisdictions, a
tenant may argue as a defense to eviction for nonpayment
of rent such claims as unrepaired building code
violations, breach of an implied warranty of habitability,
or the fact that the landlord is evicting him for reporting
building code violations or for exercising constitutional
rights. 15 Some States have enacted statutes authorizing
rent withholding in certain situations.16 In other
jurisdictions, these claims, if cognizable at all, must be
litigated in separate tort, contract, or civil rights suits.
There is no showing that Oregon excludes any defenses
it recognizes as "av.ailable" on the three questions (physical
possession, forcible withholding, legal right to possession)
at issue in an FED suit.
III
We also cannot agree that the FED Statute is invalid
on its face under the Equal Protection Clause. It is true
that Oregon FED suits differ substantially from other
15 For various tenant remedies for housing code violations, see
N. Y. Real Prop. Actions Law §§ 769-782 (Supp. 1971-19i2);
Brown v. Southall ReaJ,ty Co., 237 A. 2d 834 (D. C. Ct. App.
1968); S. D. Comp. Laws Ann.§ 43-32-9 (1967). For recognition of
an implied warranty of habitability, see Pines v. Perssion, 14 Wis. 2d
590, 111 N. W. 2d 409 (1961); Earl Millikin, Inc. v. Allen, 21 Wis.
2d 497, 124 N. W. 2d 651 (1963); Cal. Civ. Code § 1941 (1954
and Supp. 1971). For prohibitions against various kinds of retaliatory
evictions, see Ill. Rev. Stat., c. 80, § 71 (1971); Mich. Corrp.
Laws § 564.204, added by Pub. Acts 1968, c. 2, Mich. Stat. Ann.
§ 26.1300 (20!) (1970); Edwards v. Habib, 130 U.S. App. D. C. 126,
397 F. 2d 687 (1968), cert. denied, 393 U. S. 1016 (1969); United
States v. Bruce, 353 F. 2d 474 (CA5 1965); United States v.
Beaty, 288 F. 2d 653 (CA6 1961).
16 N. Y. Mult. Resid. Law § 305-a (Supp. 1971- 1972); Ill. Rev.
Stat., c. 23, § 11-23 (1971); Mass. Gen. Laws Ann., c. 239, § 8A
(Supp. 1971); Pa. Stat. Ann., Tit. 35, § 1700-1 (Supp. 1971). See
generally Comment, Rent Withholding and the Improvement of
Substandard Housing, 53 Calif. L. Rev. 304 (1965).
70 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
litigation, where the time between complaint and trial
is substantially longer,11 and whne a broader range of
issues may be considered. But it does not follow that
the Oregon statute invidiously discriminates against defendants
in FED actions.
The statute potentially applies to all tenants, rich
and poor, commercial and noncommercial; it cannot be
faulted for over-exclusiveness or under-exclusiveness.
And classifying tenants of real property differently from
other tenants for purposes of possessory actions will offend
the equal protection safeguard "only if the classification
rests on grounds wholly irrelevant to the achievement of
the State's objective," McGowan v. Maryland, 366 U. S.
420, 425 ( 1961), or if the objective itself is beyond the
State's power to achieve, Gomillion v. Lightfoot, 364
U. S. 339 (1960); NAACP v. Alabama, 377 U. S. 288
(1964); Douglas v. California, 372 U. S. 353 (1963). It
is readily apparent that prompt as well as peaceful resolution
of disputes over the right to possession of real property
is the end sought by the Oregon statute.18 It is
also clear that the provisions for early trial and simplification
of issues are closely related to that purpose.
The equal protection claim with respect to these pro-
17 An FED defendant has from two to six days between the serving
of the complaint and trial unless he files a continuance bond. See
§§ 105.135, 105.140, n. 3, supra.
18 The statute itself declares the public policy of the State of Oregon
to be that: "No person shall enter upon any land, tenement or other
real property unless the right of entry is given by law. When the
right of entry is given by law the entry shall be made in a peaceable
manner and without force." § 105.105. One out of actual possession
of real property, although lawfully entitled to such possession,
is liable criminally for assault and battery if, instead of filing an
FED action, he accomplishes an entry upon such real property by
the exertion of force against the person of an actual occupant who
opposes and resists such entry. Coghlan v. Miller, 106 Ore. 46,
54-56, 211 P. 163, 166-167 (1922).
LINDSEY v. NORMET 71
56 Opinion of the Court
visions thus depends on whether the State may validly
single out possessory disputes between landlord and
tenant for especially prompt judicial settlement. In
making such an inquiry a State is "presumed to have
acted within [its] constitutional power despite the fact
that, in practice, [ its] laws result in some inequality."
McGowan v. Maryland, supra, at 425-426.
At common law, one with the right to possession could
bring an action for ejectment, a "relatively slow, fairly
complex, and substantially expensive procedure." rn But,
as Oregon cases have recognized, the common law also
permitted the landlord to "enter and expel the tenant by
force, without being liable to an action of tort for damages,
either for his entry upon the premises, or for an
assault in expelling the tenant, provided he uses no
more force than is necessary, and do [ es] no wanton damage."
Smith v. Reeder, 21 Ore. 541, 546, 28 P. 890, 891
( 1892). The landlord-tenant relationship was one of the
few areas where the right to self-help was recognized by
the common law of most States, and the implementation
of this right has been fraught with "violence and quarrels
and bloodshed." Entelman v. Hagood, 95 Ga. 390, 392,
22 S. E. 545 ( 1895). "0 An alternative legal remedy to
prevent such breaches of the peace has appeared to be an
overriding necessity to many legislators and judges.
Hence, the Oregon statute was enacted in 1866 to alter
the common law and obviate resort to self-help and
violence. The statute, intended to protect tenants as
well as landlords, provided a speedy, judicially super-
19 A. Casner & W. Leach; Cases and Text on Property 451
(2d ed. 1969).
20 See Annot., Right of Landlord to Dispossess Tenant \Vithout
Legal Process, 45 A. L. R. 313 (1926), 49 A. L. R. 517 (1927),
60 A. L. R. 280 (1929), 101 A. L. R. 476 (1936), 6 A. L. R. 3d 17i
(1966).
72 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
vised proceeding to settle the possessory issue in a peaceful
manner:
"But if [ the landlord] forcibly enter and expel the
tenant, while he may not be liable to him in an
action of tort, he is guilty of a violation of the
forcible entry and detainer act, which is designed to
protect the public peace; and in such case the law
will award restitution to the tenant, not because
it recognizes any rights in him, but for the reason
that out of regard for the peace and good order of
society it does not permit a person in the quiet and
peaceable possession of land to be disturbed by force,
even by one lawfully entitled to the possession."
Smith v. Reeder, 21 Ore., at 546-547, 28 P., at 891.
Before a tenant is forcibly evicted from property the
Oregon statute requires a judicial determination that
he is not legally entitled to possession. "The action
of forcible entry and detainer is intended for the benefit
of him whose possession is invaded." Taylor v. Scott,
10 Ore. 483, 485 (1883). The objective of achieving
rapid and peaceful settlement of possessory disputes
between landlord and tenant has ample historical explanation
and support. It is not beyond the State's
power to implement that purpose by enacting special provisions
applicable only to possessory disputes between
landlord and tenant.
There are unique factual and legal characteristics of
the landlord-tenant relationship that justify special statutory
treatment inapplicable to other litigants. The
tenant is, by definition, in possession of the property of
the landlord; unless a judicially supervised mechanism
is provided for what would otherwire be swift repossession
by the landlord himself, the tenant would be able
to deny the landlord the rights of income incident to
ownership by refusing to pay rent and by preventing
sale or rental to someone else. Many expenses of the
LINDSEY v. NORMET 73
56 Opinion of the Court
landlord continue to accrue whether a tenant pays his
rent or not. Speedy adjudication is desirable to prevent
subjecting the landlord to undeserved economic loss and
the tenant to unmerited harassment and dispossession
when his lease or rental agreement gives him the right
to peaceful and undisturbed possession of the property.
Holding over by the tenant beyond the term of his agreement
or holding without payment of rent has proved a
virulent source of friction and dispute. We think Oregon
was well within its constitutional powers in providing
for rapid and peaceful settlement of these disputes.
Appellants argue, however, that a more stringent standard
than mere rationality should be applied both to the
challenged classification and its stated purpose. They
contend that the "need for decent shelter" and the "right
to retain peaceful possession of one's home" are fundamental
interests which are particularly important to the
poor and which may be trenched upon only after the
State demonstrates some superior interest. They invoke
those cases holding that certain classifications based on
unalterable traits such as race 21 and lineage 22 are inherently
suspect and must be justified by some "overriding
statutory purpose." They also rely on cases where classifications
burdening or infringing constitutionally protected
rights were required to be justified as "necessary
to promote a compelling governmental interest." 23
21 McLaughlin v. Florida, 379 U.S. 184 (1964); Loving v. Virginia,
388U.S.1 (1967).
22 Korematsu v. United States, 323 U. S. 214 (1944); Takahashi v.
Fish & Game Comm'n, 334 U. S. 410 (1948); Oyama v. California,
332 U. S. 633 (1948); Levy v. Louisiana, 391 U. S. 68 (1968);
Olona v. American Guarantee & Liability Insurance Co., 391 U. S.
73 (1968).
28 Shapiro v. Thompson, 394 U. S. 618, 634 (1969) (emphasis
omitted) (right to travel). See also Harper v. Virginia Bd. of Elections,
383 U. S. 663, 668 (1966) (right to vote). Cf. Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).
74 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
We do not denigrate the importance of decent, safe,
and sanitary housing. But the Constitution does not
provide judicial remedies for every social and economic
ill. We are unable to perceive in that document any
constitutional guarantee of access to dwellings of a particular
quality, or any recognition of the right of a tenant
to occupy the real property of his landlord beyond the
term of his lease without the payment of rent or otherwise
contrary to the terms of the relevant agreement.
Absent constitutional mandate, the assurance of adequate
housing and the definition of landlord-tenant relationships
are legislative, not judicial, functions. Nor should
we forget that the Constitution expressly protects against
confiscation of private property or the income therefrom.
Since the purpose of the Oregon Forcible Entry and
Wrongful Detainer Statute is constitutionally permissible
and since the classification under attack is rationally related
to that purpose, the statute is not repugnant to the
Equal Protection Clause of the Fourteenth Amendment.
IV
We agree with appellants, however, that the doublebond
prerequisite for appealing an FED action violates
their right to the equal protection of the laws. To appeal
a civil case in Oregon, the ordinary litigant must file an
undertaking, with one or more sureties, covering "all damages,
costs and disbursements which may be awarded
against him on the appeal." ORS § 19.040." In order
to secure a stay of execution, the undertaking, where the
judgment is for money, must also provide that the appel-
24 The Oregon civil appeal bond statute provides:
"19.040 Form of undertaking on appeal; conditions for stay of
proceedings; enforcement against sureties on dismissal of appeal.
( 1) The undertaking of the appellant shall be given with one or more
sureties, to the effect that the appellant will pay all damages, costs
and disbursements which may be awarded against him on the appeal;
LINDSEY v. NORMET 75
56 Opinion of the Court
lant will satisfy the judgment if he loses the appeal or,
if the judgment is for real property, that he will commit
no waste during the pendency of the appeal and, if he
loses the appeal, that he will pay for the use of the property
during this time. In an FED action, however, a
defendant who loses in the district court and who wishes
to appeal must give "in addition to the undertaking now
required by law upon appeal," an undertaking with two
sureties for the payment of twice the rental value of
but such undertaking does not stay the proceedings, unless the
undertaking further provides to the effect following:
"(b) If the judgment or decree appealed from is for the recovery
of the possession of real property, for a partition thereof, or thr
foreclosure of a lien thereon, that during the possession of such
property by the appellant he will not commit, or suffer to be committed,
any waste thereon, and that if such judgment or decree or
any part thereof is affirmed, the appellant will pay the value of the
use and occupation of such property, so far as affirmed, from the
time of the appeal until the delivery of the possession thereof, not
exceeding the sum therein specified, to be ascertained and tried by
t-he court or judge thereof.
"(2) When the decree appealed from requires the execution of a
conveyance or other instrument, execution of the decree is not stayed
by the appeal, unless the instrument is executed and deposited with
the clerk within the time allowed to file the undertaking, to abide the
decree of the appellate court.
"(3) If the appeal is dLsmissed, the judgment or decree, so far as
it is for the recovery of money, may, by the appellate court, be
enforced against the sureties in the undertaking for a stay of proceedings,
as if they were parties to the judgment or decree."
An FED action may be brought in the cirruit court, the district
court, or before a justice of the peace. ORS § 19.040 by its terms
applies to appeals from the cirruit court to the court of appf'als
and to the Supreme Court, but if the FED action is initiated in a
district court or a justice's court, ORS § 53.040 requires that an
appellant to the circuit court give an undertaking with one or more
sureties that he will pay "all costs and disbursements that may be
awarded against him on the appeal."
76 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
the premises "from the commencement of the action in
which the judgment was rendered until final judgment in
the action." ORS § 105.160. (Emphasis added.) In
the event the judgment is affirmed, the landlord is automatically
entitled to twice the rents accruing during the
appeal without proof of actual damage in that amount.
See Priester v. Thrall, 229 Ore. 184, 187, 349 P. 2d 866,
868 (1960). In Scales v. Spencer, 246 Ore. 111, 113-114,
424 P. 2d 242, 243 (1967), the Oregon Supreme Court
explained the rationale of the double-bond requirement:
"Inasmuch as a final judgment for restitution could
not include a judgment for rent pending appeal it
appears obvious that the legislative purpose for
requiring this particular bond on appeal was to
guarantee that the rent pending an appeal would
be paid. That the bond must provide for double
the rental value was, no doubt, intended to prevent
frivolous appeals for the purpose of delay. If there
were not some added cost or restriction every ousted
tenant would appeal, regardless of the justification.
It can also be assumed that the additional payment
would compensate for waste or is in lieu of damages
for the unlawful holding over."
We have earlier said that Oregon may validly make
special provision for the peaceful and expeditious settlement
of disputes over possession between landlord and
tenant and that the early-trial and continuance bond
provisions of the FED statute rationally implement that
purpose because the tenant's right to possession beyond
the initial six-day period is conditioned on securing the
landlord against the loss of accruing rent. Similar conditions
on the tenant's right to appeal, such as those
imposed by § 19.040, would also raise no serious constitutional
questions, at least on the face of such a statute.
Section 105.160, however, imposes additional requirements
that in our judgment bear no reasonable relationLINDSEY
v. NORMET 77
56 Opinion of the Court
ship to any valid state objective and that arbitrarily
discriminate against tenants appealing from adverse decisions
in FED actions.
This Court has recognized that if a full and fair trial on
the merits is provided, the Due Process Clause of the
Fourteenth Amendment does not require a State to provide
appellate review, Griffin v. Illinoi,s, 351 U. S. 12,
18 (1956); Di,strict of Columbia v. Clawans, 300 U. S.
617, 627 (1937); Ohio v. Akron Park Di,strict, 281 U. S.
74, 80 (1930); Reetz v. Michigan, 188 U. S. 505, 508
(1903); McKane v. Durston, 153 U. S. 684, 687-688
(1894), and the continuing validity of these cases is not
at issue here. When an appeal is afforded, however, it
cannot be granted to some litigants and capriciously or
arbitrarily denied to others without violating the Equal
Protection Clause. Griffin v. Illinois, supra; Smith v.
Bennett, 365 U. S. 708 (1961); Lane v. Brown, 372 U. S.
477 (1963); Long v. District Court of Iowa, 385 U. S.
192 (1966); Gardner v. California, 393 U.S. 367 (1969).
Cf. Coppedge v. United States, 369 U. S. 438 (1962);
Ellis v. United States, 356 V. S. 674 (1958).
It cannot be denied that the double-bond requirement
heavily burdens the statutory right of an FED defendant
to appeal. While a State may properly take steps
to insure that an appellant post adequate security before
an appeal to preserve the property at issue, to guard a
damage award already made, or to insure a landlord
against loss of rent if the tenant remains in possession,
the double-bond requirement here does not effectuate
these purposes since it is unrelated to actual rent accrued
or to specific damage sustained by the landlord. This
requirement is unnecessary to assure the landlord payment
of accrued rent since the undertaking an FED
defendant must file pursuant to the general appeal bond
statute, ORS § 19.040 (b), must cover "the value of the
use and occupation of such property ... from the time of
the appeal until the delivery of the possession thereof,"
78 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
and since the landlord may bring a separate action at law
for payment of back rent under ORS § 91.220. 25 Moreover,
the landlord is protected against waste or damages
occurring during the appeal by the § 19.040 (b)
undertaking that the tenant must file if he wishes to
remain in possession of the property during the appeal.
The claim that the double-bond requirement operates
to screen out frivolous appeals is unpersuasive, for it not
only bars nonfrivolous appeals by those who are unable
to post the bond but also allows meritless appeals by
others who can afford the bond. The impact on FED
appellants is unavoidable: if the lower court decision
is affirmed, the entire double bond is forfeited; recovery
is not limited to costs incurred by the appellee, rent owed,
or damage suffered. No other appellant is subject to
automatic assessment of unproved damages. We discern
nothing in the special purposes of the FED statute or
in the special characteristics of the landlord-tenant relationship
to warrant this discrimination.
We do not question here reasonable procedural provisions
to safeguard litigated property, cf. National Union
of Marine Cooks & Stewards v. Arnold, 348 U. S. 37
( 1954) , or to discourage patently insubstantial appeals,
if these rules are reasonably tailored to achieve these
ends and if they are uniformly and nondiscriminatorily
applied. Moreover, a State has broad authority to provide
for the recovery of double or treble damages in cases
of illegal conduct that it regards as particularly reprehensible,
even though posting an appeal bond by an
appellant will be doubly or triply more difficult than it
otherwise would be. In the case before us, however, the
26 The § 19.040 (b) undertaking does not, it is true, cover any
rent that has accrued from the time the FED action is filed until
the time the appeal is taken. However, the § 105.145 continuance
bond filed by the tenant if the pretrial delay is over six days
provides security for this rent, or such rent may be recovered as
back rent in the § 91.220 action at law.
LINDSEY v. NORMET 79
56 DoUGLAS, J., dissenting in part
State has not sought to protect a damage award or
property an appellee is rightfully entitled to because of
a lower court judgment.26 Instead, it has automatically
doubled the stakes when a tenant seeks to appeal an adverse
judgment in an FED action. The discrimination
against the poor, who could pay their rent pending a11
appeal but cannot post the double bond, is particularly
obvious. For them, as a practical matter, appeal is foreclosed,
no matter how meritorious their case may be.
The nonindigent FED appellant also is confronted by
a substantial barrier to appeal faced by no other civil
litigant in Oregon. The discrimination against the class
of FED appellants is arbitrary and irrational, and the
double-bond requirement of ORS § 105.160 violates the
Equal Protection Clause.
The judgment of the District Court is
Affirmed in part and reversed in part.
MR. JUSTICE PowELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of this case.
MR. JUSTICE DouGLAS, dissenting in part.
I
I agree with the Court that the double-bond provision
in the Oregon eviction statute denies tenants who are
affected by forcible entry and wrongful detainer pro-
26 Cohen v. Beneficial Loan Corp., 337 U. S. 541 (1949), is
distinguishable from the instant case. There, t.he Court upheld a
state law that required a shareholder who wished to file a shareholder's
derivative suit but who owned less than 5% of the corporation's
stock or whose stock was worth less than $50,000 to file as a
precondition to bringing the suit a bond for the reasonable expenses,
including attorney's fees, that might be incurred by defendants. The
security requirement there applied to a plaintiff and its purpose was
to protect the corporation from being injured by "strike suits" that
harmed the very interests that plaintiffs claimed to be protecting.
80 OCTOBER TERM, 1971
DouGLAs, J., dissenting in part 405 U.S.
cedures ( called FED) that equal protection guaranteed
against state action by the Fourteenth Amendment.
The ordinary or customary litigant who appeals must
file a bond with one or more sureties covering "all damages,
costs and disbursements which may be awarded
against him on the appeal." 1 To obtain a stay of execution
pending the appeal the undertaking must also provide:
(1) if the suit is for recovery of money or personal
property ( or its value), that the appellant will satisfy
the claim if he loses the appeal and (2) if the judgment
is for the recovery of possession of real property, for a
partition or for the foreclosure of a lien, that during possession
the appellant will not commit waste and that if
he loses the appeal, he will pay the value of the use of
the property during the appeal.
By contrast, if a tenant in an FED action appeals, he
must give "in addition to the undertaking now required
by law upon appeal" 2 an undertaking with two sureties
for payment of twice the rental value of the premises from
the commencement of the action until final judgment.
The more onerous requirement placed on tenants is
said to be a guarantee that rent pending appeal will
be paid. Scales v. Spencer, 246 Ore. 111, 424 P. 2d
242. Yet the general appeal statute would give that
protection.3
1 Ore. Rev. Stat. § 19.040 (1).
2 Id., § 105.160.
s The general appeal statute (Ore. Rev. Stat. § 19.040 (1)), however,
applies only to appeals from the trial court of general jurisdiction
( circuit court). FED actions may be brought in the circuit
court, Ore. Rev. Stat. § 105.110, but are also within the jurisdiction
of the district and justice of the peace courts-courts of limited jurisdiction.
Ibid. A litigant may appeal from these courts to the
circuit court, Ore. Rev. Stat. § 46.250, in which case trial is had de
novo, and may stay an adverse decision pending appeal by giving
an undertaking, with one or more sureties, that he will pay all
costs and disbursements against him awarded on the appeal, and
LINDSEY v. NORMET 81
56 DouGLAS, J., dissenting in part
It 1s said that the landlord deserves protection for
waste or damages pending appeal. Ibid. But that protection
is also provided under the general appeal statute.
It is said that a double-rent bond protects the landlord
against possible waste or damage which occurs prior
to, not during, the appeal. But the same reason would
be germane to waste or damage in other suits brought to
obtain possession of property. Drawing the line between
the present suits to obtain possession and other suits and
saddling tenants with double-rent bonds but not saddling
other owners with such bonds seems to me obviously
an invidious discrimination.
It is said that the double-rent bond is designed to
prevent frivolous appeals taken for the sole purpose of
delaying eviction as long as possible. Ibid. Yet frivolous
appeals could as well be taken by defendants whose
lien is being foreclosed and who desire to remain in possession.
It is an invidious discrimination at which the
Equal Protection Clause is aimed for a legislature to select
one class of appellants who seek to retain possession of
property and place a more onerous condition on their
right to appeal than is placed on other like appellants.
In sum, the double-bond procedure is landlord legislation,
not evenly weighted between his proprietary interest
in the property and the rights of the tenants.
Over a third of our population lives in apartments or
other rented housing.4 The home-whether rented or
that he will satisfy any judgment that might be entered against
him by the appellate court. Ore. Rev. Stat. § 53.040.
Appellees argue that the undertaking provided for by Ore. Rev.
Stat. § 53.040 is inadequate to protect landlords' rights. The answers
are two. First, the landlord has the prerogative to bring suit in the
circuit court, should he desire the greater protection of the general
appeal statute. Second, the legislature could provide that the general
appeal statute apply to FED actions brought in the district, as
well as circuit, courts.
4 1970 Census of Housing, Advance Report HC (V. 1), p. 11.
82 OCTOBER TERM, 1971
DouGLAs, J., dissenting in part 405 U.S.
owned-is the very heart of privacy in modern America.
MR. JusTICE MARSHALL in Hall v. Beals, 396 U.S. 45, 52
(dissenting), spoke of the protection afforded "fundamental
interests" when it came to classifications made
by legislatures. In that case it was the franchise. Race
is in the same category (McLaughlin v. Florida, 379
U. S. 184); so are wealth (Douglas v. California, 372
U.S. 353; Harper v. Virginia Bd. of Elections, 383 U.S.
663); procreation (Skinner v. Oklahoma, 316 U.S. 535);
and interstate travel (Shapiro v. Thompson, 394 U. S.
618). Classifications that burden, impinge, or discriminate
against such fundamental interests 5 are "highly
suspect." McDonald v. Board of Elections, 394 U. S.
802, 807.
Modern man's place of retreat for quiet and solace is
the home. Whether rented or owned, it is his sanctuary.
Being uprooted and put into the street is a traumatic
experience. Legislatures can, of course, protect property
interests of landlords. But when they weight the scales
as heavily as does Oregon for the landlord and against
the fundamental interest of the tenant they must be
backed by some "compelling ... interest," Kramer v.
Union School District, 395 U.S. 621, 627. No such "compelling
... interest" underlies this statutory scheme.
The double-rent bond required of tenants, but not required
of others in possession of real estate, is properly
held to be unconstitutional by reason of the Equal Protection
Clause of the Fourteenth Amendment.
II
I cannot agree, however, that the remainder of Oregon's
FED Statute satisfies the requirements of due process of
law.
5 The "rational" relationship test applied to strictly economic or
business interests (United States v. Maryland Savings-Share Ins.
Corp., 400 U. S. 4, 6; McDonald v. Board of Elections, 394 U. S.
802, 809) is not germane here.
LINDSEY v. NORMET 83
56 DouGLAS, J ., dissenting in part
I am satisfied that the Court properly addresses itself
to the remaining questions rather than requiring appellants,
who are already destitute, to start litigation all
over in the Oregon state courts. The three-judge court
that decided this case is a panel of distinguished Oregon
lawyers and judges. Judge Goodwin came to the Distriet
Court from the Supreme Court of Oregon. Judge
Solomon has practiced and sat in Portland, Oregon, for
years. Judge Kilkenny was a well-known practitioner in
Pendleton, Oregon, before coming to the federal bench.
These men have their roots deep in Oregon law and are
by no means outsiders unfamiliar with it. On local-law
questions we have long deferred to federal judges who
have come from law practice in a State whose local law
is at issue in a federal case. See MacGregor v. State Mutual
Co., 315 U. S. 280, 281; Huddleston v. Dwyer, 322
U. S. 232, 237; Bernhardt v. Polygraphic Co., 350 U. S.
198, 204; Magenau v. Aetna Freight Lines, 360 U.S. 273,
281 n. 2 (Frankfurter, J., dissenting).
This is a most appropriate occasion to honor that tradition.
While there are occasional appropriate cases for
abstention (see Reetz v. Bozanich, 397 U. S. 82), this
Court's abstention doctrine that requires litigants to start
all over again in a state court after having financed their
course all the way to this Court is likely to exhaust only
the litigants.
This all-Oregon panel said on the abstention issue:
"It is unlikely that an application of state law
would change the posture of the federal constitutional
issues. No state administrative process is involved.
The case has been thoroughly briefed and
argued on the merits, and is presented on a clear and
complete record. It is ripe for decision. Only one
appeal (to the United States Supreme Court) will
now be needed to settle the federal constitutional
question. While the state courts are also capable of
84 OCTOBER TERM, 1971
DOUGLAS, J., dissenting in part 405 U.S.
applying the United States Constitution to a challenged
state law, two levels of appeal would be needed
in an F. E. D. case within the state system. A final
state-court decision would still not necessarily settle
the federal constitutional question.
"Closely related to the time element is economy.
Cases of this sort tax both courts and counsel. Until
finally resolved, these cases produce expense, uncertainty,
and frustration. Delay produces no balancing
benefit, either of comity or of clarity in statefederal
relations."
Agreeing with that view, I come to the remaining constitutional
issues.
In my view, there are defects in the Oregon procedures
which go to the essence of a litigant's right of access to
the courts, whether he be rich or poor, black or white.
The problem starts with Judge Wright's statement in
Javins v. First National Realty Corp., 138 U. S. App.
D. C. 369, 372, 428 F. 2d 1071, 1074:
"When American city dwellers, both rich and poor,
seek 'shelter' today, they seek a well known package
of goods and services-a package which includes not
merely walls and ceilings, but also adequate heat,
light and ventilation, serviceable plumbing facilities,
secure windows and doors, proper sanitation, and
proper maintenance."
This vital interest that is at stake may, of course, be
tested in so-called summary proceedings. But the requirements
of due process apply and due process entails
the right "to sue and defend in the courts," a right we
have described as "the alternative of force" in an organized
society. Chambers v. Baltimore & Ohio R. Co., 207
U. S. 142, 148. In essence the question comes down to
notice and an opportunity to defend. Armstrong v.
Manzo, 380 U. S. 545; Mullane v. Central Hanover
Trust Co., 339 U. S. 306.
LINDSEY v. NORMET 85
56 DouGLAS, J ., dissenting in part
Oregon gives the tenant "not less than two or more
than four days" 6 after service of summons to go to trial.
If service is on a Friday, trial could be on the following
Monday. There can be no continuance for more than
two days "unless the defendant ... gives an undertaking
... with good and sufficient security" covering
the rent which may accrue during the trial.7
For slum tenants-not to mention the middle classthis
kind of summary procedure usually will mean in
actuality no opportunity to be heard. Finding a lawyer
in two days, acquainting him with the facts, and getting
necessary witnesses make the theoretical opportunity to
be heard and interpose a defense a promise of empty
words. It is, indeed, a meaningless notice and opportunity
to defend. The trial is likely to be held in the
presence of only the judge and the landlord and the landlord's
attorney.8
Moreover, even for tenants who have been lucky to
find a lawyer, the landlord need only plead 9 and prove 10
the following items in order to win a judgment: (1) a
description of the premises, (2) that the defendant is in
possession of the premises, (3) that he entered upon them
"with force," or unlawfully holds them "with force," 11
and ( 4) that the plaintiff is entitled to possession.
6 Ore. Rev. Stat. § 105.135.
7 Id., § 105.140.
8 The majority stresses the "fact" that a tenant may have up to six
days to prepare for trial. But as of right, the statute guarantees
only two. While various discretionary actions may result in a
tenant's having the full six days, "[t]he right of a citizen to due
process of law must rest upon a basis more substantial than favor
or discretion." Roller v. Holly, 176 U. S. 398, 409.
9 Ore. Rev. Stat. § 105.125.
10 Id., § 105.145.
11 "Unlawful holding by force" is defined by Ore. Rev. Stat.
§ 105.115 to occur in the following circumstances: (1) if a tenant
"fails or refuses to pay rent within 10 days after it is due" pursuant
to a lease or agreement, (2} if he fails or refuses "to deliver posses86
OCTOBER TERM, 1971
DouGLAS, J., dissenting in part 405 U.S.
Affirmative defenses such as the failure of the landlord
to make repairs or that the motivation for the eviction
was retaliation for a report by the tenant of a violation
of a housing code are apparently precluded. This
reflects the ancient notion that a lease is a conveyance
of an "estate in land," in which the respective covenants-
a tenant's to pay rent, the landlord's to repairwere
deemed independent of each other. This approach
was appropriate in the feudal culture in which
property law evolved.12 But this feudal notion of
landlord-tenant law-rooted in the special needs of an
agrarian society-has not been a realistic approach to
sion of the premises after being in default on payment of rent for
10 days," (3) if he remains in possession after receipt of a statutory
notice to quit (see Ore. Rev. Stat. § 105.120) and was holding under
an expired lease or was a month-to-month or year-to-year tenant,
or ( 4) if he "is holding contrary to any condition or covenant of
the lease" or "without any written lease or agreement."
12 "Under feudal tenure, and in more recent times, in the setting
of a largely agrarian society, the tenant rented land primarily for
the production of crops. The fact that a building or dwelling
stood on the premises was, in the main, incidental, because the
major emphasis was on the tenant's right to till the soil for the
production of crops to supply him a livelihood. For as long as
the tenant rented the land he was the holder of an estate for years;
in effect, he was the owner for a limited term. If he wanted to
live in comfort, and if a dwelling stood on the land, it was his
business to make that dwelling livable, to see to it that the roof
was watertight, that the well was in good shape, and that whatever
sanitary facilities there were, were adequate. While he was not
to commit 'waste'-destruction of the property that would leave
it in less productive condition than when he rented it-the owner
owed him no obligation to assist in maintaining his buildings in a
livable or decent condition.
"If anything, the obligation ran the other way, because an intentional
or grossly negligent destruction of buildings on the premises
might be construed as waste by the tenant. Thus, from its very
beginning, the obligation to repair went hand in hand with control.
Since the landlord gave up control over the premises for the stated
term of years of the leasehold, during that term whatever the
LINDSEY v. NORMET 87
56 DOUGLAS, J., dissenting in part
landlord-tenant law for many years,13 and has been replaced
by what eminent authorities have described as
"a predominately contractual" analysis of leasehold
interests.'• This led Judge Wright in Javins v. First
National Realty Corp., 138 U. S. App. D. C., at 373,
428 F. 2d, at 1075, to hold "that leases of urban dwelling
units should be interpreted and construed like any
other contract." Oregon takes the same view and treats
a lease as a contract. Wright v. Baumann, 239 Ore.
410, 398 P. 2d 119; Eggen v. Wetterborg, 193 Ore. 145,
237 P. 2d 970.
The Housing Code of Portland, Oregon, has as its
declared purpose the protection of the life, health, and
welfare of the public and of the owners and occupants of
residential buildings.H It forbids anyone to use or permit
a building to be used in violation of its provisions.
Id., § 8-204.
obligation to repair would rest on the temporary owner, the tenant,
rather than on the holder of the reversionary interest, the owner
of the fee. Initially, the dependence of the obligation to repair on
the capacity to control was retained and applied to non-rural housing
as well." Legal Remedies for Housing Code Violations, National
Commission On Urban Problems, Research Report No. 14, pp. 110-
111 (1968).
13 "The legal rules pertaining to the repair of leaseholds became
wholly unreal and anachronistic with increasing urbanization during
the 19th century, with the increasing reliance on multi-unit rental
property, such as tenement houses, to provide shelter for the urban
areas' growing industrial labor population. In an agrarian setting
it made sense to require the tenant to keep in good repair an
entire dwelling house he had rented from an owner. On the other
hand, to require a relatively transient tenant to assume the obligation
of repair in a multi-unit building or in a tenement house with
respect to his rooms and with respect to plumbing, heating, and
other fixtures that were interconnected with other parts and fixtures
in the building made no sense at all." Id., at 111-112.
14 R. Powell & P. Rohan, Real Property 179 (1967).
15 Housing Code § 8-102.
88 OCTOBER TERM, 1971
DouoLAs, J., dissenting in part 405 U.S.
We do not know what Oregon would hold if a lease in
violation of a housing code was before it in an FED case.
But if the lease is a contract, then the opportunity to
be heard would certainly embrace the issue of legality,
if due process is to have any real significance. Oregon's
statutory FED scheme is plainly to protect landlords
against loss of rental income during lengthy litigation.
See Menefee Lumber Co. v. Abrams, 138 Ore. 263, 5 P.
2d 709; Friedenthal v. Thompson, 146 Ore. 640, 31 P.
2d 643. But that is no justification for denial to tenants
of due process, as there are other less drastic devices
for protecting the landlord. Judge Wright in the Javins
case, 138 U. S. App. D. C., at 381 n. 67, 428 F. 2d, at
1083 n. 67, proposed "an excellent protective procedure"
in the form of a requirement that the tenant, who raises
an affirmative defense based on housing code violations
or other discriminatory landlord practices, pay rent into
court as it became due.16 See also Bell v. Tsintolas
Realty Co., 139 U. S. App. D. C. 101, 430 F. 2d 474.
The District Court in the present case employed a similar
procedure.
Appellees assert that the affirmative defenses mentioned
are not relevant to the issues posed under Oregon's
FED Act. They represent to us that the Oregon
judges at the trial level have usually held that such
defenses are not relevant, though the Oregon Supreme
Court has not considered the question. What Oregon
will hold or should hold is not the issue. Since, however,
Oregon holds that a lease is a contract, all defenses
16 Oregon's continuance bond, Ore. Rev. Stat. § 105.140, serves the
same function:
"No continuance shall be granted for a longer period than two
days unless the defendant applying therefor gives an undertaking
to the adverse party with good and sufficient security, to be
approved by the court, conditioned for the payment of the rent
that may accrue if judgment is rendered against the defendant."
LINDSEY v. NORMEI' 89
56 DoUGLAS, J., dissenting in part
relevant to its legality and its actual operation would
seem to be within the ambit of the opportunity to be
heard that is embraced within the concept of due process,
at least until the issue has been resolved to the contrary.
The Court suggests that landlord-tenant law raises
no federal questions. This is not quite so clear to me.
We have held that the right to complain to public
authorities is constitutionally protected. In re Quarles,
158 U. S. 532. If a defendant in a.n FED action is denied
the right to assert as a defense the claim that he is
being evicted, not for the nonpayment of rent, but because
he exercised his constitutional right to complain
to public officials about the disrepair of his apartment,
a substantial federal question would be presented. See
Edwards v. Habib, 130 U. S. App. D. C. 126, 129-137,
397 F. 2d 687, 690--698 (1968).
The Court also implies that to find for appellants in
this case, we would have to hold, as a matter of constitutional
law, that a lease is required to be interpreted
as an ordinary contract. But this is not at all necessary.
Oregon has already adopted the modern, contractual
view of leasehold analysis. The issue that
confronts the Court is not whether such a view is constitutionally
compelled, but whether, once Oregon has
gone this far as a matter of state law, the requirements
of due process permit a restriction of contract-type defenses
in an FED action. Cf. Shapiro v. Thompson, 394
U. S., at 627 n. 6; Sherbert v. Verner, 374 U. S. 398,
404---406.
Normally a State may bifurcate trials, deciding, say, the
right to possession in one suit and the right to damages
in another. See Bianchi v. Morales, 262 U. S. 170;
American Surety Co. v. Baldwin, 287 U. S. 156.
But where the right is so fundamental as the tenant's
claim to his home, the requirements of due process should
be more embracing. In the setting of modern urban
90 OCTOBER TERM, 1971
BRENNAN, J., dissenting in part 405 u. s.
life, the home, even though it be in the slums, is where
man's roots are. To put him into the street when the
slum landlord, not the slum tenant, is the real culprit
deprives the tenant of a fundamental right without any
real opportunity to defend. Then he loses the essence
of the controversy, being given only empty promises that
somehow, somewhere, someone may allow him to litigate
the basic question in the case.
Bianchi v. Morales, supra, which sanctioned the bifurcated
trial in the rural setting of Puerto Rico, where
the contest was between mortgagor and mortgagee, would
be an insufferable addition to the law of the modern
ghetto.
A judgment obtained by the landlord, whether by
default or otherwise, gives him the right to levy on the
goods of the tenant to recover the costs and disbursements
of the suit.11 Moreover, any past waste or damages,
which are covered by the appeal bond, are not an
issue in litigation in FED cases. As noted, the issues
in Oregon FED cases are limited and the proceedings
summary. Making the tenant liable for past waste or
damage through the device of an appeal bond when he
has no real opportunity to defend is a manifest denial of
due process.
I dissent from an affirmance of this judgment.
MR. JusTICE BRENNAN, dissenting in part.
In my view the District Court erred in declining to
apply the doctrine of abstention with respect to the
availability of defenses in FED actions.* The issue
17 Ore. Rev. Stat.§ 105.155.
* Abstention on the double-bond provision is not required in light
of the Oregon Supreme Court's decision in Scales v. Spencer, 246 Ore.
111, 424 P. 2d 242 (1967). I agree with the Court that this provision
violates the Equal Protection Clause.
LINDSEY v. NORMET 91
56 BRENNAN, J., dissenting in part
is whether Oregon would violate the Fourteenth Amendment
if its substantive law in some circumstances recognized
a tenant's rights to withhold rent and retain
possession based on the landlord's breach of duty to
maintain the premises, but its procedural law would
not permit assertion of those rights in defense of an
FED action. This constitutional issue is ripe for decision
if, and only if, Oregon law (1) recognizes substantive
rights of the tenant based on the landlord's breach
of duty; (2) recognizes, because of such breach, that
a tenant may remain in possession while withholding rent
during the term or may hold over after expiration of the
term, and (3) excludes the assertion of these rights to
continued possession as a defense to an FED action.
The Court's opinion exposes the fallacy of the District
Court's conclusion that Oregon law is "clear" and
that "[i] t is unlikely that an application of state law
would change the posture of the federal constitutional
issues." App. 73. For the Court cites Oregon decisions
that have recognized certain equitable defenses
in FED actions, ante, at 66 n. 11, and can only conjecture
that the defenses appellants sought to raise are
"apparently" not in this category. We cannot confidently
say, therefore, how the Oregon courts would treat
appellants' defenses, if available at all, when asserted in
an FED suit, or how, if those defenses are available in
FED suits, the Oregon courts would apply the requirement
of a trial no later than six days after service of
process. Clearly, therefore, the Oregon law is susceptible
of a "construction by the state courts that would avoid or
modify the constitutional question." Zwickler v. Koota,
389 U. S. 241, 249 (1967); Reetz v. Bozanich, 397 U. S.
82 ( 1970). In these circumstances the District Court
should have remitted appellants to the Oregon courts
for an authoritative interpretation of Oregon law in
92 OCTOBER TERM, 1971
BRENNAN, J., dissenting in part 405 U.S.
these respects before adjudicating appellants' plainly
nonfrivolous constitutional attacks upon the FED
Statute.
I would vacate the judgment of dismissal and remand
with direction to the District Court (I) to enter judgment
declaring that the double-bond requirement of
Ore. Rev. Stat. § 105.160 violates the Equal Protection
Clause, and (2) to retain jurisdiction and reinstate the
temporary restraining order conditioned on the payment
of rent into the escrow account, provided appellants,
within a time fixed by the District Court, institute appropriate
proceedings in the Oregon courts to obtain an
authoritative interpretation of the FED Statute with
respect to defenses available in actions thereunder.
UNITED STATES v. GENERES 93
Syllabus
UNITED STATES V. GENERES ET VIR
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 70-28. Argued November 8, 1971-
Decided February 23, 1972
Respondent taxpayer owned 44% of the stock of a closely held construction
corporation, with an original investment of $38,900, and
received an annual salary of $12,000 for serving as president on a
part-time basis. His total income was about $40,000 a year. He
advanced money to the eorporation and signed an indemnity agreement
with a bonding company, which furnished bid and performance
bonds for the construction contracts. The corporation defaulted
on contracts in 1962 and the taxpayer advanced over
$158,000 to the corporation and indemnified the bonding company
to the extent of more than $162,000. The corporation went into
receivership and he obtained no reimbursement for these sums.
On his 1962 income tax return the taxpayer took his loss on direct
loans to the corporation as a nonbusiness bad debt, but he claimed
the indemnification loss as a business debt and deducted it against
ordina.ry income and asserted net loss carrybacks for the portion
unused in 1962, pursuant to 26 U. S. C. § 172. Treasury Regulations
provide that if, at the time of worthlessness, the debt has a
"proximate" relationship to the taxpayer's business, the debt
qualifies as a business bad debt. In his suit for a tax refund the
taxpayer testified that his sole motive for signing the indemnification
agreement was to protect his $12,000-a-year employment with
the corporation. The jury was asked to determine whether signing
the agreement "was proximately related to his trade or business
of being an employee" of the corporation. The court refused the
Government's request for an instruction that the applicable standard
was that of dominant motivation and charged the jury that
significant motivation satisfies the Regulations' requirement of
proximate relationship. The jury's verdict was for the taxpayer
94 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
and the Court of Appeals affirmed, approving the significant-motivation
standard. Held:
1. In determining whether a bad debt has a "proximate" relation
to the taxpayer's trade or business and thus qualifies as a
business bad debt, the proper standard is that of dominant motivation
rather than significant motivation. Pp. 103-105.
2. There is nothing in the record that would support a jury
verdict in the taxpayer's favor had the dominant-motivation
standard been embodied in the instructions. Pp. 106-107.
427 F. 2d 279, reversed and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C. J., and STEWART and MARSHALL, JJ., joined and in
which (as to Parts I, II, and III) BRENNAN and WHITE, JJ., joined.
MARSHALL, J., filed a concurring opinion, post, p. 107. WHITE, ,T.,
filed a separate opinion, in which BRENNAN, J., joined, post, p. 112.
DoUGLAS, J ., filed a dissenting opinion, post, p. 113. PowELL and
REHNQUIST, JJ., took no part in the consideration or decision of
the case.
Matthew J. Zinn argued the cause for the United
States. With him on the brief were Solicitor General
Griswold, Assistant Attorney General Walters, and
Ernest J. Brown.
Max Natluin, Jr., argued the cause and filed a brief
for respondents.
MR. JusTICE BLACKMUN delivered the opm1on of the
Court.
A debt a closely held corporation owed to an indemnifying
shareholder-employee became worthless in 1962.
The issue in this federal income tax refund suit is
whether, for the shareholder-employee, that worthless
obligation was a business or a nonbusiness bad debt
within the meaning and reach of §§ 166 (a) and (d) of
the Internal Revenue Code of 1954, as amended, 26
UNITED STATES v. GENERES 95
93 Opinion of the Court
U. S. C. §§ 166 (a) and (d),1 and of the implementing
Regulations § 1.166--5.2
The issue's resolution is important for the taxpayer.
If the obligation was a business debt, he may use it to
1 "§ 166. Bad debts.
" (a) General rule.-
" ( 1) Wholly worthless debts.-There shall be allowed as a deduction
any debt which becomes worthless within the taxable year.
"(d) Nonbusiness debts.-
"(1) General rule.-In the case of a taxpayer other than a
corporation-
" (A) subsections (a) and (c) shall not apply to any nonbusiness
debt; and
"(B) where any nonbusiness debt becomes worthless within the
taxable year, the loss resulting therefrom shall be considered a loss
from the sale or exchange, during the taxable year, of a capital asset
held for not more than 6 months.
"(2) Nonbusiness debt defined.-For purposes of paragraph (1),
the term 'nonbusiness debt' means a debt other than-
" (A) a debt created or acquired (as the case may be) in connection
with a trade or business of the taxpayer; or
"(B) a debt the loss from the worthlessness of which is incurred
in the taxpayer's trade or business."
2 Treas. Reg. on Income Tax:
"26 CFR § 1.166-5 Nonbusiness debts.
"(b) Nonbusiness debt defined. For purposes of section 166 and
this section, a nonbusiness debt is any debt other than-
" (2) A debt the loss from the worthlessness of which is incurred
in the taxpayer's trade or business. The question whether a debt is
a nonbusiness debt is a question of fact in each particular case ....
For purposes of subparagraph (2) of this paragraph, the character
of the debt is to be determined by the relation which the loss resulting
from the debt's becoming worthless bears to the trade or business
of the taxpayer. If that relation is a proximate one in the conduct
of the trade or business in which the taxpayer is engaged at the time
the debt becomes worthless, the debt comes within the exception
provided by that subparagraph .... "
96 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
offset ordinary income and for carryback purposes under
§ 172 of the Code, 26 U. S. C. § 172. On the other
hand, if the obligation is a nonbusiness debt, it is to be
treated as a short-term capital loss subject to the restrictions
imposed on such losses by § 166 (d)(l)(B) and
§§ 1211 and 1212, and its use for carryback purposes
is restricted by § 172 (d)(4). The debt is one or the
other in its entirety, for the Code does not provide
for its allocation in part to business and in part to
nonbusiness.
In determining whether a bad debt is a business or
a nonbusiness obligation, the Regulations focus on the
relation the loss bears to the taxpayer's business. If,
at the time of worthlessness, that relation is a "proximate"
one, the debt qualifies as a business bad debt
and the aforementioned desirable tax consequences then
ensue.
The present case turns on the proper measure of the
required proximate relation. Does this necessitate a
"dominant" business motivation on the part of the taxpayer
or is a "significant" motivation sufficient?
Tax in an amount somewhat in excess of $40,000 is
involved. The taxpayer, Allen H. Generes,3 prevailed
in a jury trial in the District Court. See 67-2 U.S. T. C.
,r 9754 (ED La.). On the Government's appeal, the
Fifth Circuit affirmed by a divided vote. 427 F. 2d 279
(CA5 1970). Certiorari was granted, 401 U. S. 972
(1971), to resolve a conflict among the circuits!
• Edna Generes, wife of Allen H. Generes, is a named party because
joint income tax returns were filed by Mr. and Mrs. Generes for
some of the tax years in question.
• Compare the decision below and Weddle v. Commissioner, 325
F. 2d 849 (CA2 1963), with Niblock v. Commissioner, 417 F. 2d 1185
(CA7 1969). In Smith v. Commissioner, 55 T. C. 260, 268--271
( 1970), reviewed without dissent, the Tax Court felt constrained,
UNITED STATES v. GENERES 97
93 Opinion of the Court
I
The taxpayer as a young man in 1909 began work
in the construction business. His son-in-law, William F.
Kelly, later engaged independently in similar work.
During World War II the two men formed a partnership
in which their participation was equal. The enterprise
proved successful. In 1954 Kelly-Generes Construction
Co., Inc., was organized as the corporate successor
to the partnership. It engaged in the heavy-construction
business, primarily on public works projects.
The taxpayer and Kelly each owned 44 % of the corporation's
outstanding capital stock. The taxpayer's
original investment in his shares was $38,900. The
remaining 12% of the stock was owned by a son of the
taxpayer and by another son-in-law. Mr. Generes was
president of the corporation and received from it an
annual salary of $12,000. Mr. Kelly was eX'ecutive vicepresident
and received an annual salary of $15,000.
The taxpayer and Mr. Kelly performed different services
for the corporation. Kelly worked full time in the
field and was in charge of the day-to-day construction
operations. Generes, on the other hand, devoted no
more than six to eight hours a week to the enterprise.
He reviewed bids and jobs, made cost estimates, sought
under the policy ,expressed in Golsen v. Commissioner, 54 T. C.
742 (1970), aff'd, 445 F. 2d 985 (CAlO 1971), to apply the Fifth
Circuit. test but stated that it agreed with the Seventh Circuit.
Cases where the resolution of the issue was avoided include Stratmore
v. United States, 420 F. 2d 461 (CA3 1970), cert. denied, 398
U. S. 951; Kelly v. Patterson, 331 F. 2d 753, 757 (CAS 1964);
and Gillespie v. Commissioner, 54 T. C. 10'25, 1032 (1970). See,
also, Millsap v. Commissioner, 387 F, 2d 420 (CA8 1968). For
commentary on the present case, see 3 Sw. U. L. Rev. 135 (1971) ;
2 Tex. Tech. L. Rev. 318 (1971); and 28 Wash. & Lee L. Rev. 161
(1971).
98 OCTOBER TERM, 1971
Opinion of the Court 4-05 u. s.
and obtained bank financing, and assisted in securing the
bid and performance bonds that are an essential part
of the public-project construction business. Mr. Generes,
in addition to being president of the corporation, held
a full-time position as president of a savings and loan
association he had founded in 1937. He received from
the ~ciation an annual salary of $19,000. The taxpayer
also had other sources of income. His gross income
averaged about $40,000 a year during 1959-1962.
Taxpayer Generes from time to time advanced personal
funds to the corporation to enable it to complete
construction jobs. Ile also guaranteed loans made to
the corporation by banks for the purchase of construction
machinery and other equipment. In addition, his
presence with respect to the bid and performance bonds
is of particular significance. Most of these were obtained
from Maryland Casualty Co. That underwriter
required the taxpayer and Kelly to sign an
indemnity agreement for each bond it issued for the
corporation. In 1958, however, in order to eliminate
the need for individual indemnity contracts, taxpayer
and Kelly signed a blanket agreement with Maryland
whereby they agreed to indemnify it, up to a designated
amount, for any loss it suffered as surety for the corporation.
Maryland then increased its line of surety credit
to $2,000,000. The corporation had over $14,000,000
gross business for the period 1954 through 1962.
In 1962 the corporation seriously underbid two projects
and defaulted in its performance of the project contracts.
It proved necessary for Maryland to complete the work.
Maryland then sought indemnity from Generes and
Kelly. The taxpayer indemnified Maryland to the extent
of $162,104.57. In the same year he also loaned
$158,814.49 to the corporation to assist it in its financial
difficulties. The corporation subsequently went into reUNITED
STATE'S v. GENERES 99
93 Opinion of the Court
ceivership and the taxpayer was unable to obtain reimbursement
from it.
In his federal income tax return for 1962 the taxpayer
took his loss on his direct loans to the corporation as a
nonbusiness bad debt. He claimed the indemnification
loss as a business bad debt and deducted it against ordinary
income.5 Later he filed claims for refund for
1959-1961, asserting net operating loss carrybacks under
§ 172 to those years for the portion, unused in 1962,
of the claimed business bad debt deduction.
In due course the claims were made the subject of
the jury trial refund suit in the United States District
Court for the Eastern District of Louisiana. At the trial
Mr. Generes testified that his sole motive in signing
the indemnity agreement was to protect his $12,000-ayear
employment with the corporation. The jury, by
special interrogatory, was asked to determine whether
taxpayer's signing of the indemnity agreement with
Maryland "was proximately related to his trade or business
of being an employee" of the corporation. The
District Court charged the jury, over the Government's
objection, that significant motivation satisfies the Regulations'
requirement of proximate relationship.6 The
court ref used the Government's request for an instruction
that the applicable standard was that of dominamt
rather than significant motivation.'
5 This difference in treatment between the loss on the direct loan
and that on the indemnity is not explained. See, however, Whipple
v. Commissioner, 373 U.S. 193 (1963).
6 "A debt is proximately related to the taxpayer's trade or
business when its creation was significantly motivated by the taxpayer's
trade or business, and it is not rendered a non-business debt
merely because there was a non-qualifying motivation as well, even
though the non-qualifying motivation was the primary one."
7 "You must, in short, determine whether Mr. Generes' dominant
motivation in signing the indemnity agreement was to protect his
100 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
After twice returning to the court for clarification of
the instruction given, the jury found that the taxpayer's
signing of the indemnity agreement was proximately
related to his trade or business of being an employee of
the corporation. Judgment on this verdict was then
entered for the taxpayer.
The Fifth Circuit majority approved the significantmotivation
standard so specified and agreed with a Second
Circuit majority in Weddle v. Commissioner, 325
F. 2d 849, 851 ( 1963), in finding comfort for so doing
in the tort law's concept of proximate cause. Judge
Simpson dissented. 427 F. 2d, at 284. He agreed with
the holding of the Seventh Circuit in Niblock v. Commissioner,
417 F. 2d 1185 (1969), and with Chief Judge
Lumbard, separately concurring in Weddle, 325 F. 2d, at
852, that dominant and primary motivation is the standard
to be applied.
II
A. The fact responsible for the litigation is the taxpayer's
dual status relative to the corporation. Generes
was both a shareholder and an employee. These interests
are not the same, and their differences occasion
different tax consequences. In tax jargon, Generes'
status as a shareholder was a nonbusiness interest. It
was capital in nature and it was composed initially of
tax-paid dollars. Its rewards were expectative and
would flow, not from personal effort, but from investsalary
and status as an employee or was to protect his investment
in the Kelly-Generes Construction Co.
"Mr. Generes is entitled to prevail in this case only if he convinces
you that the dominant motivating factor for his signing the indemnity
agreement was to insure the receiving of his salary from the
company. It is insufficient if the protection or insurance of his
salary was only a significant secondary motivation for his signing
the indemnity agreement. It must have been his dominant or most
important reason for signing the indemnity agreement."
UNITED STATES v. GENERES 101
93 Opinion of the Court
ment earnings and appreciation. On the other hand,
Generes' status as an employee was a business interest.
Its nature centered in personal effort and labor, and
salary for that endeavor would be received. The salary
would consist of pre-tax dollars.
Thus, for tax purposes it becomes important and,
indeed, necessary to determine the character of the debt
that went bad and became uncollectible. Did the debt
center on the taxpayer's business interest in the corporation
or on his nonbusiness interest? If it was the
former, the taxpayer deserves to prevail here. Trent
v. Commissioner, 291 F. 2d 669 (CA2 1961); Jaffe v.
Commissioner, T. C. Memo 1T 67,215; Estate of Saperstein
v. Commissioner, T. C. Memo 1T 70,209; Faucher v. Commissioner,
T. C. Memo 1T 70,217; Rosati v. Commissioner,
T. C. Memo 1T 70,343; Rev. Rul. 71-561, 1971-50 Int.
Rev. Bull. 13.
B. Although arising in somewhat different contexts,
two tax cases decided by the Court in recent years merit
initial mention. In each of these cases a major shareholder
paid out money to or on behalf of his corporation
and then was unable to obtain reimbursement from it.
In each he claimed a deduction assertable against ordinary
income. In each he was unsuccessful in this quest:
1. In Putnam v. Commissioner, 352 U. S. 82 (1956),
the taxpayer was a practicing lawyer who had guaranteed
obligations of a labor newspaper corporation in which
he owned stock. He claimed his loss as fully deductible
in 1948 under§ 23 (e)(2) of the 1939 Code. The standard
prescribed by that statute was incurrence of the
los.s "in any transaction entered into for profit, though
not connected with the trade or business." The Court
rejected this approach and held that the loss was a
nonbusiness bad debt subject to short-term capital loss
treatment under § 23 (k) ( 4). The loss was deductible
102 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
as a bad debt or not at all. See Rev. Rul. 60-48, 1960-1
Cum. Bull. 112.
2. In Whipple v. Comm-issioner, 373 U.S. 193 (1963),
the taxpayer had provided organizational, promotional,
and managerial services to a corporation in which he
owned approximately an 80% stoek interest. He
claimed that this constituted a trade or business and,
hence, that debts owing him by the corporation were
business bad debts when they became worthless in 1953.
The Court also rejected that contention and held that
Whipple's investing was not a trade or business, that is,
that "[d]evoting one's time and energies to the affairs
of a corporation is not of itself, and without more, a
trade or business of the person so engaged." 373 U. S.,
at 202. The rationale was that a contrary conclusion
would be inconsistent with the principle that a corporation
has a personality separate from its shareholders and
that its business is not necessarily their business. The
Court indicated its approval of the Regulations' proximate-
relation test:
"Moreover, there is no proof ( which might be difficult
to furnish where the taxpayer is the sole or
dominant stockholder) that the loan was necessary
to keep his job or was otherwise proximately related
to maintaining his trade or business as an
employee. Compare Trent v. Commi.ssioner, [291
F. 2d 669 (CA2 1961)] ." 373 U. S., at 204.
The Court also carefully noted the distinction between
the business and the nonbusiness bad debt for one who
is both an employee and a shareholder.8
8 "Even if the taxpayer demonstrates a.n independent trade or
business of his own, care must be ta.ken to distinguish bad debt
losses arising from his own business and those actually arising from
activities peculiar to an investor concerned with, and participating
in, the conduct of the corporate business." 373 U. S., at 202.
UNITED STATES v. GENERES 103
93 Opinion of the Court
These two cases approach, but do not govern, the
present one. They indicate, however, a cautious and
not a free-wheeling approach to the business bad debt.
Obviously, taxpayer Generes endeavored to frame his
case to bring it within the area indicated in the above
quotation from Whipple v. Commissioner.
III
We conclude that in determining whether a bad debt
has a "proximate" relation to the taxpayer's trade or
business, as the Regulations specify, and thus qualifies
as a business bad debt, the proper measure is that of
dominant motivation, and that only significant motivation
is not sufficient. We reach this conclusion for a
number of reasons:
A. The Code itself carefully distinguishes between
business and nonbusiness items. It does so, for example,
in § 165 with respect to losses, in § 166 with
respect to bad debts, and in § 162 with respect to expenses.
It gives particular tax benefits to business
losses, business bad debts, and business expenses, and
gives lesser benefits, or none at all, to nonbusiness losses,
nonbusiness bad debts, and nonbusiness expenses. It
does this despite the fact that the latter are just as
adverse in financial consequence to the taxpayer as are
the former. But this distinction has been a policy of
the income tax structure ever since the Revenue Act of
1916, § 5 (a), 39 Stat. 759, provided differently for trade
or business losses than it did for losses sustained in
another transaction entered into for profit. And it has
been the specific policy with respect to bad debts since
the Revenue Act of 1942 incorporated into § 23 (k) of
the 1939 Code the distinction between business and nonbusiness
bad debts. 56 Stat. 820.
The point, however, is that the tax statutes have made
the distinction, that the Congress therefore intended it
104 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
to be a meaningful one, and that the distinction is not
to be obliterated or blunted by an interpretation that
tends to equate the business bad debt with the nonbusiness
bad debt. We think that emphasis upon the significant
rather than upon the dominant would have a
tendency to do just that.
B. Application of the significant-motivation standard
would also tend to undermine and circumscribe the
Court's holding in Whipple and the emphasis there that
a shareholder's mere activity in a corporation's affairs
is not a trade or business. As Chief Judge Lumbard
pointed out in his separate and disagreeing concurrence
in Weddle, supra, 325 F. 2d, at 852-853, both motives--
that of protecting the investment and that of protecting
the salary-are inevitably involved, and an inquiry
whether employee status provides a significant motivation
will always produce an affirmative answer and result
in a judgment for the taxpayer.
C. The dominant-motivation standard has the attribute
of workability. It provides a guideline of certainty
for the trier of fact. The trier then may compare the
risk against the potential reward and give proper emphasis
to the objective rather than to the subjective.
As has just been noted, an employee-shareholder, in making
or guaranteeing a loan to his corporation, usually
acts with two motivations, the one to protect his investment
and the other to protect his employment. By
making the dominant motivation the measure, the logical
tax consequence ensues and prevents the mere presence
of a business motive, however small and however insignificant,
from controlling the tax result at the taxpayer's
convenience. This is of particular importance in a
tax system that is so largely dependent on voluntary
compliance.
D. The dominant-motivation test strengthens and is
consistent with the mandate of § 262 of the Code, 26
UNITED STATES v. GENERES 105
93 Opinion of the Court
U. S. C. § 262, that "no deduction shall be allowed for
personal, living, or family expenses" except as otherwise
provided. It prevents personal considerations from circumventing
this provision.
E. The dominant-motivation approach to § 166 (d) is
consistent with that given the loss provisions in § 165
(c)(l), see, for example, Imbesi v. Commissioner, 361 F.
2d 640, 644 (CA3 1966), and in § 165 (c)(2), see Austin
v. Commissioner, 298 F. 2d 583, 584 (CA2 1962). In
these related areas, consistency is desirable. See also,
Commissioner v. Duberstein, 363 U. S. 278, 286 ( 1960).
F. We see no inconsistency, such as the taxpayer suggests,
between the Government's urging dominant motivation
here and its having urged only significant motivation
as the appropriate standard for the incurrence of
liability for the accumulated-earnings tax under § 531 of
the 1954 Code, 26 U. S. C. § 531, and for includability in
the gross estate, for federal estate tax purposes, of a transfer
made in contemplation of death under § 2035, 26
U. S. C. § 2035. Sections 531 and 2035 are Congress'
answer to tax avoidance activity. United States v. Donruss
C.o., 393 U. S. 297, 303 (1969), and Farmers' Loan &
Trust Co. v. Bowers, 98 F. 2d 794 (CA2 1938), cert.
denied, 306 U. S. 648 (1939).
G. The Regulations' use of the word "proximate" perhaps
is not the most fortunate, for it naturally tempts
one to think in tort terms. The temptation, however, is
best rejected, and we reject it here. In tort law factors
of duty, of foreseeability, of secondary cause, and of
plural liability are under consideration, and the concept
of proximate cause has been developed as an appropriate
application and measure of these factors. It has little
place in tax law where plural aspects are not usual, where
an item either is or is not a deduction, or either is or is
not a business bad debt, and where certainty is desirable.
106 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
IV
The conclusion we have reached means that the District
Court's instructions, based on a standard of significant
rather than dominant motivation, are erroneous
and that, at least, a new trial is required. We have
examined the record, however, and find nothing that
would support a jury verdict in this taxpayer's favor
had the dominant-motivation standard been embodied in
the instructions. Judgment n. o. v. for the United States,
therefore, must be ordered. See Neely v. Eby Construction
Co., 386 u. S. 317 (1967).
As Judge Simpson pointed out in his dissent, 427 F.
2d, at 284-285, the only real evidence offered by the taxpayer
bearing upon motivation was his own testimony
that he signed the indemnity agreement "to protect my
job," that "I figured in three years' time I would get my
money out," and that "I never once gave it [his investment
in the corporation] a thought." 9
The statements obviously are self-serving. In addition,
standing alone, they do not bear the light of analysis.
What the taxpayer was purporting to say was that his
$12,000 annual salary was his sole motivation, and that
his $38,900 original investment, the actual value of which
prior to the misfortunes of 1962 we do not know, plus
his loans to the corporation, plus his personal interest
in the integrity of the corporation as a source of living
for his son-in-law and as an investment for his son and
his other son-in-law, were of no consequence whatever
in his thinking. The comparison is strained all the more
by the fact that the salary is pre-tax and the investment
is taxpaid. With his total annual income about $40,000,
Mr. Generes may well have reached a federal income tax
bracket of 40% or more for a joint return in 1958-1962.
9 App. 67 and 59.
UNITED STATES v. GENERES 107
93 MARSHALL, J., concurring
§§ I and 2 of the 1954 Code, 68A Stat. 5 and 8.
The $12,000 salary thus would produce for him only
about $7,000 net after federal tax and before any state
income tax. This is the figure, and not $12,000, that
has any possible significance for motivation purposes,
and it is less than ¼ of the original stock investment.10
We conclude on these facts that the taxpayer's explanation
falls of its own weight, and that reasonable minds
could not ascribe, on this record, a dominant motivation
directed to the preservation of the taxpayer's salary as
president of Kelly-Generes Construction Co., Inc.
The judgment is reversed and the case is remanded
with direction that judgment be entered for the United
States.
It is so ordered.
Ma. JUSTICE PowELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of this case.
MR. JUSTICE MARSHALL, concurring.
I agree with and join the opinion of the Court. In
doing so I add a few additional words of legislative
history in support of the wording of the Internal Revenue
Code itself.
It is now well-established law that a corporate employee
is entitled to deduct as a business bad debt a
bad debt incurred because of his employee status- e. (J.,
a loan made to protect his job which becomes unrecoverable.
See, e. g., Trent v. Commissioner, 291 F. 2d 669
(CA2 1961); Lundgren v. Commissioner, 376 F. 2d 623
(CA9 1967); Smith v. Commissioner, 55 T. C. 260 (1970).
See also Whipple v. Commissioner, 373 U. S. 193, 201
( 1963). The law is equally well established, however,
that a shareholder is not entitled to a business bad-debt
10 Rather than ½, as the taxpayer in his testimony suggested, App.
59, overlooking the pre-tax character of his salaried earnings.
108 OCTOBER TERM, 1971
MARSHALL, J., concurring 405 U.S.
deduction when a loan which he has made to enhance his
stock interest in a corporation goes bad.
The taxpayer in this case is both an employee and a
shareholder of a single corporation, and the question thus
presented is how to determine the proper tax treatment
of loans made by him to the corporation that became
uncollectible.
The Internal Revenue Code itself does not offer any
test for determining when a bad debt is a business bad
debt, but § 1.166-5 (b) of the Treasury Regulations on
Income Tax provides that a loss from a worthless debt
is deductible as a business bad debt only if the relation
between the loss and taxpayer's trade or business is a
proximate one. The Commissioner contends that the
taxpayer must demonstrate that the "primary and
dominant" motivation for the undertaking that gave
rise to the bad debt was attributable to his status as an
employee, and not as a shareholder, in order to comply
with the regulation. It is the taxpayer's position that
the proximate relationship is sufficiently demonstrated
if the undertaking giving rise to the bad debt was
"significantly" motivated by his employee status. The
District Court and Court of Appeals agreed with the
taxpayer.
The opinion of the Court properly concludes that acceptance
of the test advocated by the taxpayer would
blunt somewhat the distinction between business and
nonbusiness expenses, and that the Commissioner's test
is slightly more consistent with the thrust of various
sections of the Internal Revenue Code. Were this all
we had to work with, however, I would be as torn between
the two tests as the lower courts have been. Compare
Weddle v. Commissioner, 325 F. 2d 849 (CA2 1963),
with Niblock v. Commissioner, 417 F. 2d 1185 (CA7
1969), and Smith v. Commissioner, 55 T. C. 260 (1970).
As the Court's opinion points out, Congress did not
UNITED STATES v. GENERES 109
93 MARSHALL, J., concurring
choose to apportion the tax treatment of bad debts according
to the strength of the various interests of the
taxpayer that gave rise to them. Left with an all-ornothing
approach and no legislative history, one might
well conclude that Congress did intend to blunt the distinction
between business and nonbusiness bad debts,
especially since neither the language of the Code nor the
regulations explicitly require one test or the other, and
since the burden on the taxpayer of both types of losses
is identical. Fortunately, there is a clear and compelling
legislative history that obviates any need for speculation
as to Congress' intent in enacting § 166 of the Code,
26 U. S. C. § 166. And, only the Commissioner's test
is consistent with that intent.
Prior to 1942 the Internal Revenue Code treated business
and nonbusiness bad debts identically. But, in that
year, Congress amended § 23 (k) of the 1939 Code in
order to distinguish between the two. A nonbusiness
bad debt was defined as one "other than a debt the loss
from the worthlessness of which is incurred in the taxpayer's
trade or business," and business bad debts presumably
encompassed all others. The demarcation remains
essentially the same under § 166 of the 1954 Code
except that the definition of business bad debts is expanded
for the limited purpose of including within it
"a debt created or acquired ... in connection with a
trade or business of the taxpayer" but not "incurred in"
the busineS&-e. g., a debt growing out of a trade or
business that becomes worthless under circumstances
removed from the trade or business. See H. R. Rep. No.
1337, 83d Cong., 2d Sess., 21-22; S. Rep. No. 1622, 83d
Cong., 2d Sess., 24; Whipple v. Commissioner, supra, at
194 n. 1; Trent v. Commissioner, supra, at 674.
The major congressional purpose in distinguishing between
business and nonbusiness bad debts was to prevent
taxpayers from lending money to friends or relatives who
110 OCTOBER TERM, 1971
l\!ARSHALL, J ., concurring 405 U.S.
they knew would not repay it and then deducting against
ordinary income a loss in the amount of the loan. Prior
to the 1942 amendment of the Code, it was apparent
that taxpayers could go a long way toward escaping the
Code's monetary limit on dependency deductions and its
prohibition against deductions for personal expenses by
casting support payments, gifts, and other expenditures
in the form of loans destined to become bad debts.
H. R. Rep. Ko. 2333, 77th Cong., 2d Sess., 45, 76- 77; S.
Rep. No. 1631, 77th Cong., 2d Sess., 90.
A related congressional purpose in enacting the predeces.
sor to § 166 was "to put nonbusiness investments in
the form of loans on a footing with other nonbusiness
investments." Putnam v. Commissioner, 352 U. S. 82,
92 ( 1956). Congress recognized that there of ten is only
a minor difference, if any, between an investment in the
form of a stock purchase and one in the form of a loan
to a corporation. See, e. g., Kelley Co. v. Commissioner,
326 U. S. 521 (1946); Bowersock Mills & Power Co . v.
Commissioner, 172 :F. 2d 904 (CAlO 1949).
It is apparent that Congress w~s especially concerned
about the possibility that closely held family businesses
might exploit the technical differences among the forms
in which investments can be cast in order to gain unwarranted
deductions against ordinary income.
This case is a perfect example of how the "significant"
motivation test undercuts the intended effect of the statute.
The taxpayer was drawing an annual salary of
$12,000 from a family corporation in which he had invested
almost $200,000. As the guarantor of the corporation's
performance and payment construction bonds,
the taxpayer risked a potential liability of $2,000,000 and
ultimately incurred an actual liability of $162,000, which
is the amount that he sought to deduct as a business
bad debt. The jury found that the risk was incurred
because the taxpayer was "significantly" motivated by
UNITED STATES v. GENERES 111
93 MARSHALL, J., concurring
his interests as a corporate employee and by his $12,000
salary. In view of all the facts set forth in the opinion
of the Court, especially the fact that the taxpayer had
a gross income of approximately $40,000, I have no
doubt whatever that the same jury would have found
that the taxpayer's "primary and dominant" motivation
was to protect his investment, not his salary.
If this taxpayer had simply lent his son-in-law $162,000
and then sought to deduct that amount as a business
bad debt when the latter's business collapsed, he plainly
could not have prevailed. This was just the sort of intrafamily
loan that Congress intended to bar from treatment
as a business bad debt. The fact that a corporation
served as a conduit for the loan should make no difference.
If the taxpayer had received only interest on the
loan rather than a salary, he could claim no business baddebt
deduction. The fact that he took a nominal salary
for nominal services does not, in my opinion, require a
different result. Moreover, if instead of guaranteeing the
construction bonds, the taxpayer had invested $162,000 in
the corporation to strengthen its economic position, that
investment would receive the same treatment as the prior
investment of $200,000 and any loss would not be deductible
against ordinary income. The fact that the intrafamily
contribution was made in the form of a guarantee
should be irrelevant for income tax purposes.
In sum, I find that the "significant" motivation test
produces results that are totally at odds with the goals
of the statute. The conclusion that I draw from the
legislative history is that Congress wanted to permit deductions
against ordinary income for bad-debt losses only
when the losses bore the same relation to the taxpayer's
trade or business as did other losses that the Code permits
to be deducted against ordinary income. Under
§ 165 (c)(l) of the Code, 26 U.S. C. § 165 (c)(l), the
primary-motivation test has always been used to deter112
OCTOBER TERM, 1971
Opinion of WHITE, J. 405 U.S.
mine whether these other losses are incurred in a trade
or business or in some other capacity, see, e. g., Imbesi
v. Commissioner, 361 F. 2d 640 (CA3 1966), United
States v. Gilmore, 372 U. S. 39 (1963). The same test
should also be utilized with respect to bad debts if Congress'
will is to be done.
MR. JusTICE WHITE, with whom MR. JusTICE BRENNAN
joins.
While I join Parts I, II, and III of the Court's opinion
and its judgment of reversal, I would remand the case to
the District Court with directions to hold a hearing on
the issue of whether a jury question still exists as to
whether taxpayer's motivation was "dominantly" a business
one in the relevant transactiqns under 26 U. S. C.
§§ 166 (a) and (d). Federal Rule of Civil Procedure
50 (d) provides that when an appellate court considers
a motion for judgment n. o. v., it may "determin[eJ that
the appellee is entitled to a new trial, or ... [ direct J the
trial court to determine whether a new trial shall be
granted." Because of the drastic nature of a judgment
n. o. v., this Court has emphasized that such motions
should be granted only when the procedural prerequisites
of the Federal Rules have been strictly complied with.
Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212,
215-217 ( 1947). In the present case, this Court has the
power to reverse the judgment without the grant of a new
trial since the Government properly moved for a judgment
n. o. v. (or, in the alternative, for a new trial) in the
District Court. Neely v. Eby Construction Co., 386 U.S.
317 (1967). The circumstances here are inappropriate
for such a decision, however, since taxpayer has never
had an opportunity to be heard, after it is determined
that his verdict cannot stand, as to whether factual issues
remain on which he is entitled to a new trial. A decision
UNITED STATES v. GENERES 113
93 DOUGLAS, .T., dissenting
that a verdict must be overturned because the trial judge
applied an erroneous evidentiary standard is unlike certain
other appellate rulings that an error of law was
made because it inevitably presents an accompanying
factual question: is there enough evidence to present a
jury question under the proper evidentiary standard?
Neely v. Eby Construction Co., supra, at 327. This
Court has often repeated that a trial court is the most
appropriate tribunal to determine such factual questions,
Fairmount Glass Works v. Cub Fork Coal Co., 287 U. S.
474, 481--482 (1933); Montgomery Ward & Co. v. Duncan,
311 U. S. 243, 253 ( 1940), since appellate courts are
awkwardly equipped to resolve such issues, particularly
in the absence of adversary argument, and since the trial
judge has an extensive and intimate knowledge of the
evidence and issues "in a perspective peculiarly available
to him alone." Cone v. West Virgini.a Pulp & Paper
Co., supra, at 216. I would therefore allow the trial court
to decide whether a new trial is merited in this case.
MR. JUSTICE DOUGLAS, dissenting.
The Treasury Regulations § 1.166-5 (b) (2), which
govern this case, provide that "the character of the
debt is to be determined by the relation which the
loss resulting from the debt's becoming worthless bears
to the trade or business of the taxpayer." The Regulations
do not use the words "primary and dominant."
They state: "If that relation is a proximate one in the
conduct of the trade or business in which the taxpayer
is engaged at the time the debt becomes worthless," the
debt is deductible. Ibid.
The jury was instructed in the words of the Regulations:
''Do you find from a preponderance of the evidence
that the signing of the blanket indemnity agreement by
Mr. Generes was proximately related to his trade or busi114
OCTOBER TERivl, 1971
DouaLAS, J., dissenting 405 U.S.
ness of being an employee of the Kelly-Generes Construction
Company?" The jury unanimously answered
"Yes."
There was evidence to support the finding. Generes
was an officer of the company and received a salary of
$12,000 a year. His job as officer was to obtain the bonding
credit needed by the company to perform the jobs
on which it bid. To get the bond Generes, the president,
and Kelly, the vice-president, were required to sign personally
an indemnity agreement.
The bond was essential if the company was to operate.
Without the bond the company-could not obtain business
and, if that happened, he as an officer would lose his job.
It therefore seems to me that signing the bond had a
"proximate" relation to his business as a salaried officer
in the sense that it was directly related to the hoped-for
success of that business.
Whether it was a prudent act is not our concern. Nor
is it our concern whether with the benefit of hindsight
we can now say that signing the bond entailed risks
wholly disproportionate to the stake Generes had in
maintaining a job with a $12,000-a-year salary.
Obtaining a bond was essential to the corporation; and
it was only by keeping the business going that the salaried
position of Generes could be made secure. If the
Regulations do not meet the desires of the Treasury
Department, they can be rewritten. See Helvering v.
Wilshire Oil Co., 308 U. S. 90, 100--102.
I protest now what I have repeatedly protested, and
that is the use of this Court to iron out ambiguities in the
Regulations or in the Act, when the responsible remedy
is either a recasting of the Regulations by Treasury or
presentation of the problem to the Joint Committee on
Internal Revenue Taxation which is a standing comUNITED
STATES v. GENERES 115
93 DOUGLAS, J., dissenting
mittee of the Congress' that regularly rewrites the Act
and is much abler than are we to forecast revenue needs
and spot loopholes where abuses thrive.
As I said in Commissioner v. Lester, 366 U. S. 299, 307,
"Resort to litigation, rather than to Congress, for a
change in the law is too often the temptation of government
which has a longer purse and more endurance than
any taxpayer." (Concurring opinion.) And see Knetsch
v. United States, 364 F. S. 361, 371 (dissenting opinion).
Had I voted to grant this petition I would be in a
position to vote to dismiss it as improvidently granted.
But to give integrity to the "rule of four" by which certiorari
is granted 2 the objectors must participate in a
1 See United States v. Skelly Oil Co., 394'U. S. 678, 690---691 (dissenting
opinion).
2 The "rule of four" is not in the statute. But in the hearings on
the bill that became the 1925 Act, Mr. Justice Van Devanter, who
headed the committee of the Court sponsoring the Act before the
Congress, said:
"For instance, if there were five votes against granting the petition
and four in favor of granting it, it would be granted, because
we proceed upon the theory that when as many as four members of
the court, and even three in some instances, are impressed with the
propriety of our taking the case the petition should be granted.
This is the uniform way in which petitions for writs of certiorari
are considered." Hearing on S. 2060 and S. 2061 before a Subcommittee
of the Senate Committee on the Judiciary, 68th Cong.,
1st Sess., 29 (1924).
And the Congress acted in reliance on that representation. See H. R.
Rep. No. 1075, 68th Cong., 2d Scss., 3.
The bill was originally drafted in 1922 by Chief Justice Taft with
the assistance of Mr. Justice Day, Mr. Justice Van Devanter, and
Mr. Justice Mc Reynolds. Hearings on Jurisdiction of Cirruit
Courts of Appeals and United States Supreme Court before the
Housl' Committee on the Judiciary, 67th Cong., 2d Sess. (1922).
The Committee representing the Court in the 1924 Hearings were
Mr. Justice Van Devanter, Mr. Justice McReynolds, and Mr. Justice
Sutherland. Hearing on S. 2060 and S. 2061, supra, at 1.
116 OCTOBER TERM, 1971
DouGLAS, J., dissenting 405 U.S.
decision, as stated at length by the late Mr. Justice Harlan
in Ferguson v. Moore-McCormack Lines, 352 U. S. 521,
559-562.
In that view I cannot say that on the facts of this case
the loss did not have a "proximate" relation to this
corporate officer's business of keeping the enterprise
afloat. I would affirm the Court of Appeals, 427 F. 2d
279.
NLRB v. SCRIVENER 117
Opinion of the Court
NATIONAL LABOR RELATIONS BOARD v.
SCRIVENER, DBA AA ELECTRIC CO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
No. 70-267. Argued January 12, 1972-Decided February 23, 1972
Employer's discharge of employees because they gave written sworn
statements to a National Labor Relations Board field examiner
investigating an unfair labor practice charge filed against the employer,
but who had neither filed the charge nor testified at a
formal hearing on the charge, constituted a violation of § 8 (a) ( 4)
of the National Labor Relations Act. Pp. 121-125.
435 F. 2d 1296, reversed and remanded.
BLACKMUN, J ., delivered the opinion for a unanimous Court.
William Terry Bray argued the cause for petitioner.
With him on the brief were Solicitor General Griswold,
Peter G. Na.sh, Norton J. Come, and Paul J. Spielberg.
Donald W. Jones argued the cause and filed a brief
for respondent.
William B. Barton and Harry J.· Lambeth filed a brief
for Associated Builders & Contractors, Inc., as amicus
curiae.
MR. JUSTICE BLACKMUN delivered the opinion of the
Court.
Section 8 of the National Labor Relations Act, as
amended, 61 Stat. 140, 29 U. S. C. § 158, provides:
"SEC. 8. (a) It shall be an unfair labor practice for
an employer-
" (I) to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed m
section 7;
118 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
" ( 4) to discharge or otherwise discriminate against
an employee because he has filed charges or given
testimony under this Act."
Section 7 of the Act, as amended, 61 Stat. 140, 29 U.S. C.
§ 157, provides:
"SEC. 7. Employees shall have the right to selforganization,
to form, join, or assist labor organizations,
to bargain collectively through representatives
of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection .... "
This case presents the issue whether an employer's
retaliatory discharge of an employee who gave a written
sworn statement to a National Labor Relations Board
field examiner investigating an unfair labor practice
charge filed against the employer, but who had not filed
the charge or testified at a formal hearing on it, constitutes
a violation of §8 (a)(l) or of §8 (a)(4) of the Act.
The Board, with one member not participating, unanimously
held that it was. 177 N. L. R. B. 504 (1969).
The United States Court of Appeals for the Eighth Circuit,
by a unanimous panel vote, held otherwise and
denied enforcement. 435 F. 2d 1296 ( 1971). The Court
of Appeals did not reach other issues raised by the employer.
"\Ve granted certiorari in order to review a decision
that appeared to have an important impact upon
the administration of the Act. 404 U. S. 821 (1971).
I
There is testimony in the record, credited by the trial
examiner and adopted by the Board, to the following
effect:
The respondent Robert Scrivener is a small electrical
contractor in Springfield, Missouri. He does business as
NLRB v. SCRIVENER 119
117 Opinion of the Court
an individual proprietor under the name of AA Electric
Company. On March 18, 1968, five of Scrivener's six
employees signed cards authorizing a union 1 to represent
them in collective bargaining. The next day business
agent Moore advised Mr. Scrivener of the union's
majority status and asked to negotiate a contract.
Scrivener examined the cards, but refused the request.
Mr. Scrivener then visited his jobsites and complained
to his employees about their action. On March 20 he
dismissed card-signers Cockrum, Smith, and Wilson, and
hired Hunt, a journeyman, and Statton, a helper. Hunt
had worked for Scrivener on prior occasions.
On March 21 the union filed charges with the Board
alleging that the company had violated§§ 8 (a)(l), (3),
and ( 5) of the Act. On March 26 the three dischargees
returned to work. The next day, however, Cockrum
and Smith again were released on the ground that there
was a lack of work. The two new employees and Perryman,
the sole nonsigner among the six original employees,
were retained. Smith was again recalled on April 1 and,
with the other card-signers, except Cockrum, continued
to work until April 18.
On April 17 a field examiner from the Board's regional
office met with Mr. Scrivener and discussed the charges
that had been filed. That evening the examiner interviewed
the five card-signers at the union hall. He took
affidavits or sworn statements from all except Cockrum
who was not then working for Scrivener. On April 18
Scrivener inquired of at least two of the men whether
they had met and been interviewed by the examiner the
evening before. At the end of the day Scrivener dismissed
the four who had given the statements; he did so
with the explanation that he had no work for them to do.
1 Local 453, International Brotherhood of Electrical Workers,
AFL-CIO.
120 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
Perryman, Hunt, and Statton continued to work on the
three houses and the 11-unit apartment building the
company had under construction at the time.
On May 13 the union filed an amended charge adding
the allegation that the dismissal of the four men on
April 18 was because they had given the statements to
the examiner in connection with the earlier charge, and
that this was a violation of § 8 (a)(l) and § 8 (a)(4).
Three of the men returned to work in May or early June.
The fourth was never recalled.
A complaint was issued on both the original charge and
the added allegation.
II
The Board, in agreement with the trial examiner, concluded
that the April 18 dismissal of the four employees
was "in retaliation against them for having met with
and given evidence to a Board field examiner investigating
unfair labor practice charges which had been filed
against" Scrivener; that " [ t] he investigation of charges
filed is an integral and essential stage of Board proceedings";
and that this conduct violated § 8 (a)(l) and § 8
(a)( 4). 177 N. L. R. B., at 504. The customary order
to cease and desist, to reinstate the four employees with
back pay, and to post notices was issued. The Board
concluded, however, in disagreement with the trial examiner
and with one member dissenting, "that it will not
effectuate the policies of the Act for the Board to assert
jurisdiction herein over the alleged independent and unrelated
violations of Section 8 (a) ( 1), ( 3), and ( 5) of
the Act," and dismissed those portions of the complaint.
Id., at 504, 505.
The Court of Appeals, per curiam, relying on its earlier
decision in NLRB v. Ritchie Mfg. Co., 354 F. 2d 90 (CA8
1965), held that § 8 (a)(4) does not "encompass discharge
of employees for giving written sworn statements
to Board field examiners." In Ritchie the court had
NLRB v. SCRIVENER 121
117 Opinion of the Court
stated, "We are reluctant to hold that§ 8 (a)(4) can be
extended to cover preliminary preparations for giving
testimony." 354 F. 2d, at 101.2 In the present case, the
court refused to uphold the Board's finding that the
challenged discharges violated § 8 (a) ( 1) as well as § 8
(a)(4) since "[t]o do so would be to overrule Ritchie
implicitly, and we are not prepared to take that action."
435 F. 2d, at 1297.
III
The view of the Court of Appeals is that § 8 (a) ( 4)
of the Act serves to protect an employee against an employer's
reprisal only for filing an unfair labor practice
charge or for giving testimony at a formal hearing, and
that it affords him no protection for otherwise participating
in the investigative stage or, .in particular, for giving
an affidavit or sworn statement to the investigating field
exammer.
We disagree for several reasons.
1. Construing § 8 (a) ( 4) to protect the employee during
the investigative stages, as well as in connection with
the filing of a formal charge or the giving of formal
testimony, comports with the objective of that section.
Mr. Justice Black, in no uncertain terms, spelled out the
congressional purpose:
"Congress has made it clear that it wishes all
persons with information about such practices to be
completely free from coercion against reporting them
to the Board. This is shown by its adoption of § 8
(a) ( 4) which makes it an unfair labor practice for
an employer to discriminate against an employee
because he has filed charges. And it has been held
that it is unlawful for an employer to seek to restrain
an employee in the exercise of his right to file
2 Apparently all the Ritchie employee did was "to prepare to
testify." 354 F. 2d, at 101.
122 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
charges" (citations omitted). Nash v. Florida Industrial
Comm'n., 389 U. S. 235, 238 (1967).
This complete freedom is necessary, it has been said, "to
prevent the Board's channels of information from being
dried up by employer intimidation of prospective complainants
and witnesses." John Hancock Mut. Life Ins.
Co. v. NLRB, 89 U. S. App. D. C. 261, 263, 191 F. 2d
483, 485 (1951). It is also consistent with the fact that
the Board does not initiate its own proceedings; implementation
is dependent "upon the initiative of individual
persons." Nash v. Florida lndustrml Comm'n,
supra, 389 U. S., at 238; NLRB v. Industrial Union of
Marine & Shipbuilding Workers, 391 U. S. 418, 424
(1968).
2. The Act's reference in § 8 (a) ( 4) to an employee
who "has filed charges or given testimony," could be read
strictly and confined in its reach to formal charges and
formal testimony. It can also be read more broadly.
On textual analysis alone, the presence of the preceding
words "to discharge or otherwise discriminate" reveals,
we think, particularly by the word "otherwise," an intent
on the part of Congress to afford broad rather than narrow
protection to the employee. This would be consistent
with § 8 (a)(4)'s purpose and objective hereinabove
described. A similar question with respect to the word
"evidence" in § § 11 (1) and ( 2) of the Act, 29 U. S. C.
§§ 161 (1) and (2), ·was considered in NLRB v. Wyman-
Gordon Co., 394 U. S. 759, 768-769 (1969) , and was resolved
by a broad and not a narrow construction.3 That
precedent is pertinent here.
3. This broad interpretation of § 8 (a) ( 4) accords
with the Labor Board's view entertained for more than
35 years. Section 8 (a) ( 4) had its origin in the Na-
3 The three Justices who conrurred in the result joined Part III of
t.he plurality opinion. 394 U. S., at 769.
NLRB v. SCRIVENER 123
117 Opinion of the Court
tional Industrial Recovery Act, 48 Stat. 195. Executive
Order ~o. 6711, issued May 15, 1934, under that Act (10
NRA Codes of Fair Competition 949), provided, "No
employer . . . shall dismiss or demote any employee
for making a complaint or giving evidence with respect
to an alleged violation .... " The first Labor Board
interpreted that phrase to protect the employee not
only as to formal testimony, but also as to the giving
of information relating to violations of the NIRA. New
York Rapid Transit Corp., 1 N. L. R. B. Dec. 192 ( 1934)
(affidavits); Ralph A. Freundlich, Inc., 2 N. L. R. B. Dec.
147, 148 (1935) (state court testimony). In§ 8 (a)(4)
the word "testimony," rather than "evidence," appears.
But the new language was described as "merely a reiteration"
of the Executive Order language and it was
stated that the "need for this provision is attested"
by the above-cited Board' decisions. Comparison of
S. 2926 (73d Cong.) and S. 1958 (74th Cong.), Senate
Committee Print 29, 1 Leg. Hist. of National Labor Relations
Act 1319, 1355 (1949).4
4. This interpretation, in our view, also squares with
the practicalities of appropriate agency action. An employee
who participates in a Board investigation may
not be called formally to testify or may be discharged
before any hearing at which he could testify. His contribution
might be merely cumulative or the case may
be settled or dismissed before hearing. Which em-
• We do not regard three Board cases, Albert J. Bartson, 23
N. L. R. B. 666, 673~674 (1940); F. W. Poe Mfg. Co., 27
N. L. R. B. 1257, 1270 (1940); and The Kramer Co., 29 N. L. R. B.
921, 935 (1941), cited by the amicus, as indicative of a contra.ry
Board interpretation. In each of those cases the employee had filed
a charge. The Board's reference, in each opinion, to that fact and
its further reference, in the last two cases, to the "express statutory
protection afforded employees" by § 8 (a) ( 4), are expected and
natural references and do not, in our view, indicate a narrow approach
to the statute.
124 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
ployees receive statutory protection should not turn
on the vagaries of the selection process or on other
l"vents that have no relation to the need for protection.
It would make less than complete sense to protect the
employee because he participates in the formal inceptioll
of the process (by filing a charge) or in the final,
formal presentation, but not to protect his participation
in the important developmental stages that fall between
these two points in time. This would be unequal and
inconsistent protection and is not the protection needed
to preserve the integrity of the Board process in its
entirety.5
5. The Board's subpoena power also supports this
interpretation. Section 11 of the Act, 29 U. S. C. § 161,
gives the Board this power for "the purpose of all hearings
and investigations." Once an employee has been
subpoenaed he should be pr9tected from retaliatory
action regardless of whether he has filed a charge or
has actually testified. Judge Lumbard pertinently described
it:
"It is, we think, a permissible inference that Congress
intended the protection to be as broad as
the [subpoena] power." Pedersen v. NLRB, 234
F. 2d 417,420 (CA21956).
trnder this reasoning, if employees of Scrivener had been
subpoenaed, they would have been protected. There
is no basis for denying similar protection to the voluntary
participant.
6. The approach to § 8 (a)( 4) generally has been a
liberal one in order fully to effectuate the section's
remedial purpose. In M & S Steel Co. v. NLRB, 353
F. 2d 80 ( CA5 1965), the court sustained the Board's
5 We are not persuaded that the reach of§ 8 (a) (3), 29 U.S. C.
§ 158 (a) (3), and the rriminal penalty provided by § 12, 29 U. S. C.
§ 162, provide the required protection that justifies a narrow reading
of§ 8 (a)(4).
NLRB v. SCRIVENER 125
117 Opinion of the Court
finding, 148 N. L. R. B. 789, 792-795 (1964), that§ 8 (a)
( 4) was violated by the discharge of an employee, Williams,
because he gave a statement to a field examiner.
In NLRB v. Dal-Tex Optical Co., 310 F. 2d 58, 60-61
(CA5 1962), the court sustained the Board, 131
N. L. R. B. 715, 721 (1961), in affording protection to an
employee, Whitaker, who appeared but did not testify at
a Board hearing. See John Hancock Mut. Life Ins.
Co. v. NLRB, supra, and NLRB v. Syracuse Stamping
Co., 208 F. 2d 77, 79-80 (CA2 1953).6
We are aware of no substantial countervailing considerations.
We therefore conclude that an employer's
discharge of an employee because the employee gave a
written sworn statement to a Board field examiner investigating
an unfair labor practice _charge filed against
the employer constitutes a violation of § 8 (a) ( 4) of
the National Labor Relations Act.
Having reached this conclusion, it is unnecessary for
us to determine whether the employer's action is also
a violation of § 8 (a)(l), and we expressly refrain from
so doing.
IV
A final comment about the jurisdictional aspects of
the case is perhaps in order. The Board found that
Scrivener's operations were too small to satisfy the
Board's self-imposed and published $50,000 outflowinflow
jurisdictional standard for non-retail enterprises.
See Siemons Mailing Service, 122 N. L. R. B. 81, 85
( 1958). It also found, however, that Scrivener's operations
were sufficient to "have an impact on and affect
interstate commerce," 177 N. L. R. B., at 504, and thus
were within the Board's statutory jurisdiction as defined
by § 10 (a) of the Act, 29 U. S. C. § 160 (a).
0 But cf. Hoover Design Corp. v. NLRB, 402 F. 2d 987 (CA6
1968) (employee who "threatened to go to the Board" or file charges).
126 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
This prompted the Board to assert jurisdiction over
the§§ 8 ( a)(l) and (4) claim of retaliation, but to refuse
to exercise jurisdiction over the original § § 8 (a) ( 1), ( 3),
and ( 5) claims on the ground that the latter would
have "no immediate impact on the vindication of the
right of an individual to resort to the Board's processes
.... " 177 N. L. R. B., at 505. Scrivener, as a
consequence, complains that relief for him against a
claimed unfair labor practice on the part of the union
is unavailable.
The employer's complaint of jurisdictional unfairness
is understandable. See, however, Pedersen v. NLRB,
supra, 234 F. 2d 417. As we read the opinion of the
Court of Appeals, this issue and that of the sufficiency
of the evidence, and perhaps others, were not reached
when that court decided the § 8 (a) ( 4) issue as it did.
We note that that court described the Board's jurisdiction
to act as "marginal." 435 F. 2d, at 1296. In any
event, this and any other issues may be canvassed on
remand.
The judgment of the Court of Appeals is reversed and
the case is remanded for further proceedings.
It is so ordered.
DUNCAN v. TENNESSEE 127
Per Curiam
DU:\TCAN v. TENNESSEE
CERTIORARI TO THE SUPREME COURT OF TENNESSEE
No. 70-5122. Argued January 13, 1972-Decided February 23, 1972
224 Tenn. 712, 462 S. W. 2d 491, certiorari dismissed as improvidently
granted.
Rodger ,V. Bowman argued the cause and filed a brief
for petitioner.
Everett H. Falk, Assistant Attorney General of Tennessee,
argued the cause for respondent. w·ith him on
the brief was Robert E. Kendrick, Deputy Attorney
General.
PER CuRIAM.
We granted certiorari in this case, 404 U. S. 821, to
consider questions seemingly presented under the constitutional
guarantee against double jeopardy. After briefing
and oral argument, it now appears that those questions
are so interrelated w~th rules of criminal pleading
peculiar to the State of Tennessee, the constitutionality
of which is not at issue, as not to warrant the exercise of
the ~ertiorari jurisdiction of this Court. See, e. g., Wilson
v. State, 200 Tenn. 309, 292 S. W. 2d 188 (1956); Young
v. State, 185 Tenn. 596, 206 S. W. 2d 805 ( 1947). See
U. S. Sup. Ct. Rule 19 (l)(a). The writ is, therefore,
dismissed as having been improvidently granted.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DouGLAS
and MR. JusTICE MARSHALL join, dissenting.
In dismissing the writ of certiorari in this case, the
Court lets stand a conviction secured in violation of
petitioner's right, under the Fifth and Fourteenth
Amendments, not to be placed in jeopardy twice for
a single criminal offense. The infringement of this
128 OCTOBER TERM, 1971
BRENNAN, J., dissenting 405 U.S.
fundamental right is so plain on the record before us
that I am compelled to dissent.
Petitioner and a codefendant, Brooks, were brought
to trial in the Criminal Court of Montgomery County,
Tennessee, on an indictment charging armed robbery "by
the use of a deadly weapon, to-wit: A Gun to-wit: a
pistol . . .. " 1 The jury was selected and sworn, the
indictment read, and a plea of not guilty entered on
the defendants' behalf. The State's first witness, the
officer investigating the robbery, testified that he had
been looking for a "22 rifle" used in the commission of
the crime. Defense counsel immediately objected to this
evidence as immaterial to a charge of armed robbery
with a pistol, and after some discussion out of the jury's
presence, his objection was sustained. The prosecutor
then informed the court that he had used the word "pistol"
in the indictment by mistake and that in view of
the court's refusal to admit evidenee of the rifle, the State
could proceed no further with its case and would move
for a directed verdict of acquittal on the ground of erroneous
indictment. The trial court granted this motion
over defendants' objection and instructed the jury "to
find, or to acquit the Defendants of the charge in view
of that error in the indictment."
About eight months later, in March 1969, the defendants
were again brought to trial for the same armed
robbery. The new indictment was identical to the old
1 Tenn. Code Ann. § 39~3901 (Supp. 1970) provides:
"Robbery is the felonious and forcible taking from the person of
another, goods or money of any value, by violence or putting the
person in fear. Every person convicted of the crime of robbery
shall be imprisoned in the penitentiary not less than five (5) nor more
than fifteen (15) years; provided, that if the robbery be accomplished
by the use of a deadly weapon the punishment shall be death by
electrocution, or the jury may commute the punishment to imprisonment
for life or for any period of time not less than ten ( 10) years."
DUNCAN v. TENNESSEE 129
127 BRENNAN, J., dissenting
as to date, victim, and amount of money stolen and differed
only in its description of the weapon as a "22 caliber
rifle." Nevertheless, defendants' plea of double jeopardy
was overruled by the court, and they were convicted and
sentenced to 10 years' imprisonment. The State Court
of Criminal Appeals sustained defendants' double jeopardy
claim on appeal, but the Supreme Court of Tennessee
reversed. State v. Brooks, 224 Tenn. 712, 462 S. W.
2d 491 ( 1970). It agreed that evidence of the rifle
was properly excluded at the first trial, since under
Tennessee's "strict" variance rule "'an allegation in an
indictment which is not impertinent or foreign to the
cause [ such as specifying the weapon as a pistol] must
be proved, though a prosecution for the same offense
might be supported without such allegation' .... " 224
Tenn., at 717, 462 S. W. 2d, ·at 494 (italics omitted),
quoting Hite v. State, 17 Tenn. 357, 377 (1836) (theft
of note payable at Mechanics' and Traders' Bank inadmissible
on indictment specifying note payable at
Merchants' and Traders' Bank). See also Wilson v.
State, 200 Tenn. 309, 292 S. W. 2d 188 (1956) (proof
of theft of bronze rollers material variance from indictment
charging theft of brass rollers). The court went
on to hold, however, that since the variance between
"pistol" and "rifle" was sufficient to render the initial
indictment defective, it was likewise sufficient to distinguish
the second indictment from the first for double
jeopardy purposes. " 'To entitle a prisoner to the benefit
of the plea of autrefois acquit, it is necessary that
the crimes charged in the last bill of indictment be
precisely the same with that charged in the first, and
that the first bill of indictment is good in point of law.
The true test by which the question whether such a
plea is a sufficient bar may be tried is whether the
evidence necessary to support the second indictment
would have been sufficient to procure a legal convic130
OCTOBER TERM, 1971
BRENNAN, J., dissenting 405 U.S.
tion upon the first.' " 224 Tenn., at 715, 462 S. "\i',T_ 2d,
at 493, quoting Hite v. State, supra, at 375-376. Though
recognizing the application of the Double Jeopardy
Clause to the States, Benton v. Maryland, 395 U. S. 784
( 1969), the court concluded that the strict variance rule
"when consistently applied as a test for both variance
and double jeopardy, will affect equally both the state
and the defendant, and in our opinion not offend the
Fourteenth Amendment." 224 Tenn., at 719, 462 S. W.
2d, at 494. A petition for rehearing based on this Court's
decision in Ashe v. Swenson, 397 U. S. 436 (1970), was
denied on the ground that Ashe "has no application to
the question whether there has been double jeopardy
where the first indictment is void for variance." 224
Tenn., at 720, 462 S. W. 2d, at 495.
The guarantee against double jeopardy is "'fundamental
to the American scheme of justice,'" Benton
v. Maryland, supra, at 796, designed to ensure that
"the State with all its resources and power should
not be allowed to make repeated attempts to convict an
individual for an alleged offense, thereby subjecting him
to embarrassment, expense and ordeal and compelling
him to live in a continuing state of anxiety and insecurity,
as well as enhancing the possibility that even though
innocent he may be found guilty." Green v. United
States, 355 U. S. 184, 187-188 (1957). Thus, we must
view with a cautious eye any suggestion, as in the denial
of rehearing below, that a particular trial, once commenced,
might not result in the attachment of jeopardy
under the Constitution. As the State conceded at oral
argument, that suggestion is not sustainable here. Had
petitioner's first trial gone no further than the impaneling
of a jury, this in itself would have served to invoke
the constitutional guarantee, for it is now settled that
"a defendant is placed in jeopardy once he is put to trial
before a jury so that if the jury is discharged without his
DUNCAN v. TENNESSEE 131
127 BRENNAN, J ., dissenting
consent he cannot be tried again." Id., at 188. There
are exceptions to this rule, of course, as in the case of
a hung jury, United States v. Perez, 9 Wheat. 579 (1824) ,
or military emergency requiring withdrawal of charges,
Wade v. Hunter, 336 U. S. 684 (1949), but they do not
apply here.
In any event, we need not rely on the calling of a
jury to find an attachment of jeopardy, for it is clear
that petitioner was not only tried for robbery in the
initial proceeding, but was in fact acquitted at the
direction of the court. His acquittal, being the final
verdict in a court of competent jurisdiction, automatically
precluded the State from retrying him for the
same offense, even though, a:s the court below pointed
out, the direction to acquit arose from a defect in the
indictment. It has long been the rule of this Court
that "former jeopardy includes one who has been acquitted
by a verdict duly rendered, although no judgment
be entered on the verdict, and it was found upon a
defective indictment. The protection is not ... against
the peril of second punishment, but against l:,eing again
tried for the same offense." Kepner v. United States,
195 U. S. 100, 130 (1904) (emphasis added). See also
United States v. Ball, 163 U. S. 662, 669-670 (1896);
Fong Foo v. United States, 369 U. S. 141 (1962) (directed
verdict of acquittal, though "egregiously erroneous,"
bars retrial on the same charge); Benton v. Maryland,
supra, at 796- 797. Nor is this rule a mere nicety
of abstract constitutional theory. The prosecution might
have any number of reasons for wanting to halt a trial at
midpoint and begin anew, and the indictment offers a
fertile source for the discovery of error. To permit the
State to obtain a final verdict by asserting its own mistake
in the indictment and then to retry the defendant
on the theory that jeopardy had not attached is to subject
him to the very dangers that the Double Jeopardy
132 OCTOBER TERM, 1971
BRENNAN, J., dissenting 405 U.S.
Clause was designed to avoid. The State very properly
conceded at oral argument that petitioner "was placed
in jeopardy in the first trial." Tr. of Oral Arg. 23.
The only question, then, is whether the petitioner
was tried twice for the same offense. Tennessee argues
that under its strict-variance rule the specification of
"pistol" in the first indictment charged an entirely different
offense from the armed robbery with a "rifle"
alleged in the second, since the "same evidence" could
not be used to prove both charges. Whatever relevance
this doctrine may have in determining a variance between
indictment and proof within a single trial, it
certainly does not comport with the double jeopardy
standards of the Fifth and Fourteenth Amendments.
In my view, "the Double Jeopardy Clause requires the
prosecution, except in most limited circumstances, to
join at one trial all the charges against a defendant
that grow out of a single criminal act, occurrence, episode,
or transaction." Ashe v. Swenson, supra, at
453--454 ( concurring opinion). This the State has
clearly failed to do. At petitioner's first trial the
State was prepared to proceed on evidence that a rifle
had been used in the robbery. The first witness testified
as to a rifle, and the rifle itself was apparently in
the courtroom in full view of the jury. Following petitioner's
acquittal, the State again tried him for armed
robbery with a rifle. The same witness was called to
testify about the rifle as in the first trial, and the same
rifle was present in the courtroom. In short, though
the first indictment charged petitioner with using a
"pistol," the State could also have charged him with
use of a rifle, based on the very same evidence, both
physical and testimonial, on which he was eventually
convicted at the second trial. Having failed to do so
and having obtained a final verdict at the first trial,
the State was barred, in my opinion, from bringing a
DUNCAN v. TENNESSEE 133
127 BRENNAN, J., dissenting
second prosecution based on this "single criminal act." 2
The majority's refusal to address these issues is inexplicable.
It may be that the prosecution in this
case did not have available to it a ready means, under
state law, of amending the first indictment and thus
had no choice but to end the trial and begin again.
If so, its remedy lies in changing Tennessee's criminal
procedure, not in denying petitioner the constitutional
protection to which he is entitled. Petitioner was tried
twice for the same offense, and his conviction should be
reversed. United States v. Jorn, 400 U. S. 470, 488
(1971) (Black and BRENNAN, JJ., concurring). I would
grant him that relief.
2 It is not entirely clear that the two indictment.s charged different
offenses even under state law. In State ex rel. Anderson v. Winsett,
217 Tenn. 564,399 S. \V. 2d 741 (1965), the Tennessee Supreme Court
stated the following with regard to the state robbery statute,. supra,
n. 1:
"When the Legislature determined in 1955 to amend the penalty
statute for the crime of robbery, it was obvious that robbery by the
use of a deadly weapon was dangerous to life for many reasons,
and thus it was that the act was amended to make the penalty for
the crime of robbery with a deadly weapon as stated above, to try
to prevent the use of a deadly weapon in the perpetration of a
robbery. [But] so adding this increased punishment for the increased
gravity of the crime does not create a separate or distinct offense,
but merely provides for increased punishment of such offender because
of the presence of aggravating circumstances." Id., at 567-
568, 399 S. W. 2d, at 743.
Relying on Winsett and the robbery statute itself, petitioner contends,
with some force in my view, that the only crime charged in
either prosecution was "robbery," with the use of the weapon and
its specification in the indictment adding only to the punishment
that might be imposed.
134 OCTOBER TERM, 1971
Syllabus 405 U.S.
BULLOCK ET AL. v. CARTER ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS
No. 70-128. Argued November 17, 1971-Decided February 24, 1972
Appellees who sought to become candidates for local office in the
Texas Democratic primary elect.ion challenged in the District
Court the validity of the Texas statutory scheme which, without
write-in or other alternative provisions, requires payment of fees
ranging as high as $8,900. Appellees claimed that they were
unable to pay the required fees and were therefore barred from
running. Under the Texas statute, the party committee estimates
the total cost of the primary and apportions it among candidates
according to its judgment of what is "just and equitable," in light
of "the importance, emolument, and term of office." The fees
for local candidates tend appreciably to exceed those for statewide
candidates. Following a hearing, the District Court declared the
fee system invalid and enjoined its enforcement. Appellants contend
that the filing fees are necessary both to regulate the primary
ballot and to finance elections. Held: The Texas primary election
filing-fee system contravenes the Equal Protection Clause of the
Fourteenth Amendment. Pp. 110-149.
(a) Since the Texas statute imposes filing fees of such magnitude
that numerous qua.lified candidates are precluded from filing,
it falls with unequal weight on candidates and voters according to
their ability to pay the fees, and therefore it must be "closely
scrutinized" and can be sustained only if it is reasonably necessary
to accomplish a. legitimate state objective and not merely because
it has some rational basis. Pp. 140-144.
(b) Although a State has an interest in regulating the number
of candidates on the ballot and eliminating those who are spurious,
it cannot attain these objectives by arbitrary means such as those
called for by the Texas statute, which eliminates legitimate potential
candidates, like those involved here, who cannot afford the filing
fees. Pp. 144-147.
(c) The apportionment of costs among candidates is not the
only means available to finance primary elections, and the State
can identify certain bodies as political parties entitled to sponsorship
if the State itself finances the primaries, as it does general
BULLOCK v. CARTER 135
134 Opinion of the Court
elections, both of which are important parts of the democratic
process. Pp. 147-149.
321 F. Supp. 1358, affirmed.
BURGER, C. J., delivered the opinion of the Court, in which all
Members joined except PowELL and REHNQUIST, JJ., who took no
part in the consideration or decision of the case.
John F. Morehead, Special Assistant Attorney General
of Texas, and Pat Bailey, Assistant Attorney General,
argued the cause for appellants. With them on the brief
were Crawford C. Martin, Attorney General, Nola White,
First Assistant Attorney General, Alfred Walker, Executive
Assistant Attorney General, J. C. Davis, William J.
Craig, and W. 0. Shultz II, Assistant Attorneys General,
and Charles F. Herring.
A. L. Crouch argued the cause for appellees Wischkaemper
et al. With him on the brief was Eugene L.
Smith for appellee Carter. Joseph A. Calamia argued
the cause for appellees Pate et al. With him on the
briefs was John L. Fashing.
MR. CHIEF JcsTICE BURGER delivered the opinion of
the Court.
Under Texas law, a candidate must pay a filing fee
as a condition to having his name placed on the ballot
in a primary election.1 The constitutionality of the
Texas filing-fee system is the subject of this appeal
from the judgment of a three-judge District Court.
Appellee Pate met all qualifications to be a candidate
in the May 2, 1970, Democratic primary for the
office of County Commissioner of Precinct Four for El
Paso County, except that he was unable to pay the
$1,424.60 assessment required of candidates in that pri-
1 See Arts. 13.07a, 13.08, 13.0Sa, 13.15, and 13.16 of the Texas
Election Code Ann. (Supp. 1970-1971).
136 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
mary. Appellee Wischkaemper sought to be placed on
the Democratic primary ballot as a candidate for County
Judge in Tarrant County, but he was unable to pay the
$6,300 assessment for candidacy for that office. Appellee
Carter wished to be a Democratic candidate for
Commissioner of the General Land Office; his application
was not accompanied by the required $1,000 filing
fee.2
After being denied places on the Democratic primary
ballots in their respective counties, these appellees instituted
separate actions in the District Court challenging
the validity of the Texas filing-fee system. Their
actions were consolidated, and a three-judge District
Court was convened pursu~nt to 28 U. S. C. §~ 2281 and
2284. Appellee Jenkins was permitted to intervene as
a voter on his claimed desire to vote for Wischkaemper,
and appellee Guzman and others were permitted to
intervene as voters desiring to cast their ballots for
Pate. On April 3, 1970, the District Court ordered that
Wischkaemper and Pate be permitted to participate in
the primary conducted on May 2, 1970, without prepayment
of filing fees.3 Following a hearing on the
merits, the three-judge court declared the Texas filingfee
scheme unconstitutional and enjoined its enforcement.
4 321 F. Supp. 1358 (::\l"D Tex. 1970). A direct
2 Carter also failed to have his application notarized and to have
it accompanied by a statutory loyalty affidavit. Since appellees
Pate and Wischkaemper were in all respects eligible to be candidates
in the primary except for their failure to pay the filing fees, Carter's
participation in this appeal is superfluous and we need not decide
whether the additional defects in his application deprive him of
standing to attack the constitutionality of the filing-fee system.
3 The order provided that their ultimate liability for the fees
would depend on the outcome of this action. Preliminary relief was
not granted to Carter because of his noncompliance with requisites
for candidacy unrelated to the challenged filing fees. Seen. 2, supra.
• The sperific provisions held unconstitutional are those listed in
n. 1, supra.
BULLOCK v. CARTER 137
134 Opinion of the Court
appeal was taken under 28 U. S. C. § 1253, and we
noted probable jurisdiction. 403 U. S. 904.
Under the Texas statute, payment of the filing fee
is an absolute prerequisite to a candidate's participation
in a primary election. There is no alternative procedure
by which a potential candidate who is unable to pay
the fee can get on the primary ballot by way of petitioning
voters," and write-in votes are not permitted
in primary elections for public office.6 Any person who
is willing and able to pay the filing fee and who meets
the basic eligibility requirements for holding the office
sought can run in a primary.
Candidates for most district, county, and precinct
offices must pay their filing fee to the county executive
committee of the political party conducting the pri-
5 Texas law does permit the names of independent candidates to
appear on the official ballot in the general election -if a proper application
containing a voter petition is submitted. The number of
eligible voters required to sign the petition varies from 1 % to 5%
depending on the office sought. For district, county, and precinct
offices, candidates must obtain the signatures of 5% of the eligible
voters with a ceiling of 500 signatures. No person may sign the
application of more than one person for the same office, and no
person who has voted in a primary may sign the application of a
candidate for an office for which a nomination was made at such
primary. Art. 13.50, Tex. Election Code Ann. (1967).
No fees are assessed against candidates in general elections.
6 Art. 13.09 (b), Tex. Election Code Ann. (Supp. 1970--1971).
Write-in votes are permitted for the party offices of county chairman
and precinct chairman in the general primary but not in the
run-off primary. Ibid.
Former Art. 13.0Sc (repealed, Acts 1967, 60th Leg., p. 1932, c. 723,
§ 77) permitted write-in votes in primary elections and provided that
if a write-in candidate in the first primary either received a majority
of the votes or was one of the two highest vote getters in a race
in which no candidate received a majority of the votes, he could not
be the party's nominee in the general election or participate in the
run-off primary, unless and until he paid the filing fee he would have
been assessed had he originally sought a place on the primary ballot.
138 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
mary; the committee also determines the amount of
the fee. The party committee must make an estimate of
the total cost of the primary and apportion it among the
various candidates "as in their judgment is just and equitable."
1 The committee's judgment is to be guided by
"the importance, emolument, and term of office for which
the nomination is to be made." 8 In counties with populations
of one million or more, candidates for offices
of two-year terms can be assessed up to 10% of their
aggregate annual salary, and candidates for offices of
four-year terms can be assessed up to 15% of their
aggregate annual salary.9 In smaller counties there are
no such percentage limitations.10
The record shows that the fee~ required of the candidates
in this case are far from exceptional in their
magnitude.11 The size of the filing fees is plainly a
7 Art. 13.08, Tex. Election Code Ann. (Supp. 1970-1971).
8 Ibid.
9 Art. 13.08a, Tex. Election Code Ann. (Supp. 1970-1971). This
provision is applicable to Mrmbers of Congress.
10 The $6,300 fee required of appellee Wischkarmper, for example,
amounts to 32% of the $19,700 annual salary for County Judge in
Tarrant County. Similarly, in the :May 2, 1970, Democratic primary,
candidates for five county offices in Ward County were assessed
$6,2S0 for a filing fee; this fee represented 76.6% of the
$8,160 annual salary for four of these offices; for the fifth office, that
of County Commissioner, it represented 99.7% of the annual salary
of $6,270.
11 Assessments in excess of $1,000 appear to be common in many
Texas counties, and assessments exceeding $5,000 are typi('a) for
certain offices in several counties. Filing fees for judgeships seem
to run particularly high. Persons seeking to run in the May 2, 1970,
Democratic primary for the office of District Judge in Tarrant
County were required to pay $8,900 in order to have their n!lmP.s
appear on the ballot.
It should be noted, however, that amounts not needed to finanr.1>.
the primary are refunded to the candidates, and that in some counties
refunds tend to run as high as 50% or more of the assessed filing
fee.
BULLOCK v. CARTER 139
134 Opinion of the Court
natural consequence of a statutory system that places
the burden of financing primary elections on candidates
rather than on the governmental unit, and that imposes
a particularly heavy burden on candidates for
local office. The filing fees required of candidates seeking
nomination for state offices and offices involving
statewide primaries are more closely regulated by statute
and tend to be appreciably smaller. The filing fees for
candidates for State Representative range from $150
to $600, depending on the population of the county from
which nomination is sought.12 Candidates for State
Senator are subject to a maximum assessment of $1,000.13
12 Arts. 13.08a, 13.16 subd. 2, Tex. Election Code Ann. (Supp.
1970-1971) :
Population of County Filing Fee
less than 650,000..................................... $150
650,000 to 900,000.................................... $600
900,000 to 1,000,000.................................. $300
1,000,000 or more..................................... $500
It is not clear from the face of the. statute why candidates from
counties having populations between 650,000 and 900,000 must pay
more than candidates from counties of larger sizes.
An additional provision requires that candidates for State Representative
from districts encompassing either eight or nine counties
must pay $25 per county as a filing fee. Art. 13.08a, Tex. Election
Code Ann. (Supp. 1970-1971).
13 Art. 13.08a, Tex. Election Code Ann. (Supp. 1970-1971). There
is a fixed-fee schedule if nomination is sought from a county with a
population of 650,000 or more:
Population of County Filing Fee
650,000 to 900,000*. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,000
900,000 to 1,000,000.................................. $ 300
1,000,000 or more.................................... $1,000
*If part of such county is joined to two or more counties to constitute
a senatorial district, the filing fee is fixed at $250.
There is a ceiling on the filing fee if nomination is sought in a
senatorial district encompassing counties with less than 650,000 in
140 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Candidates for nominations requiring statewide primaries,
including candidates for Governor and United States
Senator, must pay a filing fee of $1,000 to the chairman
of the state executive committee of the party conducting
the primary.14 Candidates for the State Board of
Education have a fixed filing fee of $50.15
(1)
The filing-fee requirement is limited to party primary
elections, but the mechanism of such elections is the
creature of state legislative choice and hence is "state
action" within the meaning of the Fourteenth Amendment.
Gray v. Sanders, 372 U. S. 368 (1963); Nuon
v. Herndon, 273 U. S. 536 (1927).10 Although we
population. Art. 13.16 subd. 1, Tex. Election Code Ann. (Supp.
1970----1971):
Filing Fee
Population of County per County
less than 5,000....................................... $ 1
5,000 to 10,000....................................... $ 5
10,000 to 40,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 10
40,000 to 125,000..................................... $ 50
125,000 to 200,000.................................... $ 75
200,000 to 650,000.................................... $100
Persons seeking nomination in a senatorial district constituting exactly
two counties must pay a filing fee of $200.
14 Art. 13.15, Tex. Election Code Ann. (Supp. 1970----1971). Candidates
for Justice of the Court of Civil Appeals are also required to
pay their filing fees to the chairman of the state committee, at the
rate of 5% of one year's salary. Ibid.
15 Art. 13.08 ( 4), Tex. Election Code Ann. (Supp. 1970----1971).
16 Appellants ask the Court to reconsider the scope of Smith v.
Al/wright, 321 U. S. 649 ( 1944), in which the Court held that the
action of the Democratic Party of Texas in excluding Negroes from
participation in party primaries constituted "state action." See also
Terry v. Adams, 345 U. S. 461 (1953); cf. Nixon v. Condon, 286
U. S. 73 (1932). Appellants contend that not every aspect of a
party primary election must be considered "state action" cognizable
under the Fourteenth Amendment. But we are here concerned with
BULLOCK v. CARTER 141
134 Opinion of the Court
have emphasized on numerous occasions the breadth
of power enjoyed by the States in determining voter
qualifications and the manner of elections, this power
must be exercised in a manner consistent with the Equal
Protection Clause of the Fourteenth Amendment. See,
e. g., Williams v. Rhodes, 393 U. S. 23 (1968); Evans v.
Cornman, 398 U. S. 419 (1970); Carrington v. Rash,
380 U. S. 89 (1965). The question presented in this
case is whether a state law that prevents potential
candidates for public office from seeking the nomination
of their party due to their inability to pay a portion
of the cost of conducting the primary election is
state action that unlawfully discriminates against the
candidates so excluded or the voters who wish to support
them. 11
the constitutionality of a state law rather than action by a political
party and thus have no occasion to consider the scope of the holding
in Smith v. Allwright, supra.
17 The Texas Legislature has enacted a "contingent, temporary law"
modifying the filing-fee requirement ipvolved in this case. C. 11,
H.B. 5, 62d Leg., 1st Called Sess. (1971). The new provisions allow
persons unable to pay the filing fees to have their names placed
on the ballot in primary elections if they submit a petition
"signed by qualified voters eligible to vote for the office for which
the candidate is running, equal in number to at least 10 percent of
the entire vote cast for that party's candidate for governor in the
last preceding general election in the territory . . . in which the
candidate is running." (Art. 13.08c (b) .)
The Act provides that it is to go into effect only if "(1) the
Supreme Court of the United States does not dispose of the appeal
[in this case] ... before January 1, 1972; or (2) the Supreme
Court of the United States affirms or refuses to review the judgment
of the district court in the aforesaid case ... " (§ 7 (b)).
The Act expires of its own force on December 31, 1972, at which time
the prior law goes back into effect.
Although the Act has gone into effect due to the absence of decision
by the Court on this appeal before January 1, 1972, the change in
the law does not render this case moot. The effect of the "contingent,
142 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
The threshold question to be resolved is whether the
filing-fee system should be sustained if it can be shown
to have some rational basis,18 or whether it must withstand
a more rigid standard of review.
In Harper v. Virginia Board of Elections, 383 U. S.
663 ( 1966), the Court held that Virginia's imposition
of an annual poll tax not exceeding $1.50 on residents
over the age of 21 was a denial of equal protection.
Subjecting the Virginia poll tax to close scrutiny, the
Court concluded that the placing of even a minimal
price on the exercise of the right to vote constituted
an invidious discrimination. The problem presented by
candidate filing fees is not the same, of course, and
we must determine whether the strict standard of review
of the Harper case should be applied.
The initial and direct impact of filing fees is felt by
aspirants for office, rather than voters, and the Court
has not heretofore attached such fundamental status to
temporary law" enacted by the Texas Legislature is to suspend enforcement
of the strict filing-fee requirement during calendar year
1972. Since enforcement of the filing-fee requirement under the
prior law was permanently enjoined by the court below, that injunction
would continue to have force and effect after December 31, 1972.
Furthermore, there is a continuing controversy with respect to appellees'
obligation to pay the filing fees for participation in the
Democratic primary held on May 2, 1970. The order of the District
Court allowing appellees Pate and Wischkaemper to run in the
primary without payment of fees stated that they would be liable
for the fees if they did not ultimately prevail in this action. See n.
3, supra.
We take notf' of the fact that in Johnston v. Luna, 338 F. Supp.
355 (ND Tex. 1972), the same three-judge court that issued the
injunction appealed from in this case, declared the new law unconstitutional
and enjoined its enforcement. Our attention is confined
to the case before us, and we intimate no view on the merits
of that controversy.
18 See Dandridge v. Williams, 397 U.S. 471,485 (1970); McGowan
v. Maryland, 366 U.S. 420, 425-426 (1961).
BULLOCK v. CARTER 143
134 Opinion of the Court
candidacy as to invoke a rigorous standard of review.19
However, the rights of voters and the rights of candidates
do not lend themselves to neat separation; laws
that affect candidates always have at least some theoretical,
correlative effect on voters. Of course, not every
limitation or incidental burden on the exercise of voting
rights is subject to a stringent standard of review.
McDonald v. Board of Election, 394 U. S. 802 (1969).
Texas does not place a condition on the exercise of the
right to vote,2° nor does it quantitatively dilute votes
that have been cast.21 Rather, the Texas system creates
barriers to candidate access to the primary ballot,
thereby tending to limit the field of candidates from
which voters might choose. The existence of such barriers
does not of itself compel close scrutiny. Compare
Jenness v. Fortson, 403 U.S. 431 (1971), with Williams
v. Rhodes, 393 U. S. 23 (1968). In approaching candidate
restrictions, it is essential to examine in a realistic
light the extent and nature of their impact on voters.
Unlike a filing-fee requirement that most candidates
could be expected to fulfill from their own resources
or at least through modest contributions, the
very size of the fees imposed under the Texas system
gives it a patently exclusionary character. Many potential
office seekers lacking both personal wealth and
affluent backers are in every practical sense precluded
from seeking the nomination of their chosen party, no
matter how qualified they might be, and no matter how
broad or enthusiastic their popular support. The effect
19 Cf. Turner v. Fouche, 396 U. S. 346, 362 (1970); Snowden v.
Hughes, 321 U. S. 1 (1944).
20 See Harper v. Virginia Board of Elections, 383 U.S. 663 (1966);
Kramer v. Union Free School Dist. No. 15, 395 U. S. 621 (1969);
Cipriano v. City of Houma, 395 U. S. 701 (1969).
21 See Reynolds v. Sims, 377 U. S. 533, 562 (1964); Wesberry v.
Sanders, 376 U.S. 1 (1964).
144 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
of this exclusionary mechanism on voters is neither
incidental nor remote. Not only are voters substantially
limited in their choice of candidates, but also there is the
obvious likelihood that this limitation would fall more
heavily on the less affluent segment of the community,
whose favorites may be unable to pay the large costs
required by the Texas system. To the extent that the
system requires candidates to rely on contributions from
voters in order to pay the assessments, a phenomenon
that can hardly be rare in light of the size of the fees, it
tends to deny some voters the opportunity to vote for
a candidate of their choosing; at the same time it gives
the affluent the power to place on the ballot their own
names or the names of persons they favor. Appellants
do not dispute that this is endemic to the system. This
disparity in voting power based on wealth cannot be
described by reference to discrete and precisely defined
segments of the community as is typical of inequities
challenged under the Equal Protection Clause, and
there are doubtless some instances of candidates representing
the views of voters of modest means who are
able to pay the required fee. But we would ignore
reality were we not to recognize that this system falls
with unequal weight on voters, as well as candidates,
according to their economic status.
Because the Texas filing-fee scheme has a real and
appreciable impact on the exercise of the franchise,
and because this impact is related to the resources of
the voters supporting a particular candidate, we conclude,
as in Harper, that the laws must be "closely
scrutinized" and found reasonably necessary to the accomplishment
of legitimate state objectives in order to
pass constitutional muster.
(2)
Appellants contend that the filing fees required by
the challenged statutes are necessary both to regulate
BULLOCK v. CARTER 145
134 Opinion of the Court
the ballot in primary elections and to provide a means
for financing such elections.
The Court has recognized that a State has a legitimate
in~erest in regulating the number of candidates on the
ballot. Jenness v. Fortson, 403 U. S., at 442; Williams
v. Rhodes, 393 U. S., at 32. In so doing, the State understandably
and properly seeks to prevent the clogging of
its election machinery, avoid voter confusion, and assure
that the winner is the choice of a majority, or at least a
strong plurality, of those voting, without the expense
and burden of runoff elections.22 Although we have
no way of gauging the number of candidates who might
enter primaries in Texas if access to the ballot were
unimpeded by the large filing fees in question here,
we are bound to respect the legitimate objectives of
the State in avoiding overcrowded ballots. Moreover,
a State has an interest, if not a duty, to protect the
integrity of its political processes from frivolous or
fraudulent candidacies. Jenness v. Fortson, 403 U. S.,
at 442.
There is no escape from the conclusion that the imposition
of filing fees ranging as high as $8,900 tends
to limit the number of· candidates entering the primaries.
However, even under conventional standards
of review, a State cannot achieve its objectives by
totally arbitrary means; the criterion for differing treatment
must bear some relevance to the object of the
legislation. Morey v. Doud, 354 U. S. 457, 465 ( 1957) ;
Smith v. Cahoon, 283 U. S. 553, 567 (1931). To say
that the filing fee requirement tends to limit the ballot
to the more serious candidates is not enough. There
22 The Texas Election Code provides that no person shall be nominated
at a primary election for any office unless he receives a majority
of the votes cast. In the event that no candidate receives a majority,
a runoff elertion is hrld between the two candidates receiving
the highest number of votes. Arts. 13.03, 13.07, Tex. Election Code
Ann. (1967).
146 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
may well be some rational relationship between a candidate's
willingness to pay a filing fee and the seriousness
with which he takes his candidacy,23 but the
candidates in this case affirmatively alleged that they
were unable, not simply unwilling, to pay the assessed
fees, and there was no contrary evidence. It is uncontested
that the filing fees exclude legitimate as well
as frivolous candidates. And even assuming that every
person paying the large fees required by Texas law
takes his own candidacy seriously, that does not make
him a "serious candidate" in the popular sense. If the
Texas fee requirement is intended to regulate the ballot
by weeding out spurious candidates, it is extraordinarily
ill-fitted to that goal; 24 other means to protect those
valid interests are available.
Instead of arguing for the reasonableness of the exclusion
of some candidates, appellants rely on the fact
that the filing-fee requirement is applicable only to
party primaries, and point out that a candidate_ can
gain a place on the ballot in the general election without
payment of fees by submitting a proper application
accompanied by a voter petition.25 Apart from the fact
that the primary election may be more crucial than the
general election in certain parts of Texas,2" we can
hardly accept as reasonable an alternative that requires
23 Cf. Harper v. Virginia Board of Elections, 383 U. S., at 684--685
(Harlan, J., dissenting).
24 Cf. Turner v. Fouche, 396 U. S., at 364.
25 Appellants state that Texas requires only the signatures of 1 %
of the eligible voters. Although this is true for offires voted for
statewide, the candidates for local offices in this case would have had
to obtain the signatures of 5% of the eligible voters up to a maximum
of 500 signatures. Moreover, only those persons not voting in the
primary would have been eligible to sign a nominating petition. See
n. 5, supra.
26 See Carter v. Dies, 321 F. Supp. 1358, 1363 (ND Tex. 1970)
(Thornberry, J., concurring).
BULLOCK v. CARTER 147
134 Opinion of the Court
candidates and voters to abandon their party affiliations
in order to avoid the burdens of the filing fees
imposed by state law. Appellants have not demonstrated
that their present filing-fee scheme is a necessary
or reasonable tool for regulating the ballot.
In addition to the State's purported interest in regulating
the ballot, the filing fees serve to relieve the
State treasury of the cost of conducting the primary
elections, and this is a legitimate state objective; in
this limited sense it cannot be said that the fee system
lacks a rational basis.21 But under the standard of
review we consider applicable to this case, there must
be a showing of necessity. Appellants strenuously urge
that apportioning the cost among the candidates is the
only feasible means for financing the primaries. They
argue that if the State must finance the primaries, it
will have to determine which political bodies are "parties"
so as to be entitled to state sponsorship for their
nominating process, and that" this will result in new
claims of discrimination. Appellants seem to overlook
the fact that a similar distinction is presently embodied
in Texas law since only those political parties whose
gubernatorial candidate received 200,000 or more votes
in the last preceding general election are required to
conduct primary elections.28 Moreover, the Court has
recently upheld the validity of a state law distinguishing
between political parties on the basis of success in
prior elections. Jenness v. Fortson, supra. We are
not persuaded that Texas would be faced with an impossible
task in distinguishing between political parties
for the purpose of financing primaries.
We also reject the theory that since the candidates
are availing themselves of the primary machinery, it
27 Cf. Harper v. Virginia Board of Electiom, 383 U. S., at 674
(Black, J ., dissenting).
28 Art. 13.02, Tex. Election Code Ann. (1967).
148 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
is appropriate that they pay that share of the cost that
they have occasioned. The force of this argument is
diluted by the fact that candidates for offices requiring
statewide primaries are generally assessed at a lower
rate than candidates for local office, although the state-
·wide primaries undoubtedly involve a greater expense.29
More importantly, the costs do not arise because candidates
decide to enter a primary or because the parties
decide to conduct one, but because the State has, as
a matter of legislative choice, directed that party primaries
be held. The State has presumably chosen this
course more to benefit the voters than the candidates.
Appellants seem to place reliance on the self-evident
fact that if the State must assume the cost, the voters,
as taxpayers, will ultimately be burdened with the expense
of the primaries. But it is far too late to make
out a case tha.t the party primary is such a lesser part
of the democratic process that ·its cost must be shifted
away from the taxpayers generally. The financial
burden for general elections is carried by all taxpayers
and appellants have not demonstrated a valid basis
for distinguishing between these two legitimate costs
of the democratic process. It seems appropriate that
a primary system designed to give the voters some influence
at the nominating stage should spread the cost
among all of the voters in an attempt to distribute the
influence without regard to wealth. Viewing the myriad
governmental functions supported from general revenues,
it is difficult to single out any of a higher order
than the conduct of elections at all levels to bring
29 This would be a different case if the fees approximated the
cost of processing a candidate's application for a place on the
ballot, a cost resulting from the candidate's decision to enter a
primary. The term filing fee has Jong been thought to cover the
cost of filing, that is, the cost of placing a particular document on
the public record.
BULLOCK v. CARTER 149
134 Opinion of the Court
forth those persons desired by their fellow citizens to
govern. Without making light of the State's interest
in husbanding its revenues, we fail to see such an element
of necessity in the State's present means of financing
primaries as to justify the resulting incursion on
the prerogatives of voters.
(3)
Since the State has failed to establish the requisite
justification for this filing-fee system, we hold that it
results in a denial of equal protection of the laws. It
must be emphasized that nothing herein is intended to
cast doubt on the validity of reasonable candidate filing
fees or licensing fees in other contexts. By requiring
candidates to shoulder the costs of conducting primary
elections through filing fees and by providing no reasonable
alternative means of access to the ballot, the State
of Texas has erected a system that utilizes the criterion
of ability to pay as a condition to being on the ballot,
thus excluding some candidates otherwise qualified and
denying an undetermined number of voters the opportunity
to vote for candidates of their choice. These
salient features of the Texas system are critical to our
determination of constitutional invalidity.
Affirmed.
MR. JUSTICE PowELL and MR. JusTrCE REHNQUIST
took no part in the consideration or decision of this case.
150 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
GIGLIO v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 70---29. Argued October 12, 1971-Decided February 24, 1972
Petitioner filed a motion for a new trial on the basis of newly discovered
evidence contending that the Government failed to disclose
an alleged promise of leniency made to its key witness in
return for his testimony. At a hearing on this motion, the Assistant
United States Attorney who presented the case to the grand
jury admitted that he promised the witness that he would not be
prosecuted if he testified before the grand jury and at trial. The
Assistant who tried the case was unaware of the promise. Held:
Neither the Assistant's lack of authority nor his failure to inform
his superiors and associates is controlling, and the prosecution's
duty to present all material evidence to the jury was not fulfilled
and constitutes a violation of due process requiring a new trial.
Pp. 153-155.
Reversed and remanded.
BURGER, C. J., delivered the opinion. of the Court, in which all
Members joined except PowELL and R1rn~QursT, JJ., who took no
part in the consideration or decision of the case.
James M. La Rossa argued the cause and filed a brief
for petitioner.
Harry R. Sachse argued the cause for the United
States. On the brief were Solicitor General Griswold,
Assistant Attorney General Wilson, Jerome M. Feit, and
Beatrice Rosenberg.
MR. CHIEF JusTICE BURGER delivered the opinion of
the Court.
Petitioner was convicted of passing forged money orders
and sentenced to five years' imprisonment. While appeal
was pending in the Court of Appeals, defense counsel
discovered new evidence indicating that the Government
GIGLIO v. UNITED STATES 151
150 Opinion of the Court
had failed to disclose an alleged promise made to its key
witness that he would not be prosecuted if he testified
for the Government. We granted certiorari to determine
whether the evidence not disclosed was such as to require
a new trial under the due process criteria of Napue v.
Illinois, 360 U. S. 264 (1959), and Brady v. Maryland,
373 u. s. 83 (1963).
The controversy in this case centers around the testimony
of Robert Taliento, petitioner's alleged coconspirator
in the offense and the only witness linking petitioner
with the crime. The Government's evidence at
trial showed that in June 1966 officials at the Manufacturers
Hanover Trust Co. discovered that Taliento, as
teller at the bank, had cashed several forged money orders.
Upon questioning by FBI agents, he confessed supplying
petitioner with one of the bank's customer signature
cards used by Giglio to forge $2,300 in money orders;
Taliento then processed these money orders through the
regular channels of the bank. Taliento related this story
to the grand jury and petitioner was indicted; thereafter,
he was named as a coconspirator with petitioner but
was not indicted.
Trial commenced two years after indictment. Taliento
testified, identifying petitioner as the instigator of the
scheme. Defense counsel vigorously cross-examined,
seeking to discredit his testimony by revealing possible
agreements or arrangements for prosecutorial leniency:
"[Counsel.] Did anybody tell you at any time that
if you implicated somebody else in this case that you
yourself would not be prosecuted?
"[Taliento.] Nobody told me I wouldn't be prosecuted.
"Q. They told you you might not be prosecuted?
"A. I believe I still could be prosecuted.
152 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
"Q. Were you ever arrested in this case or charged
with anything in connection with these money orders
that you testified to?
"A. Not at that particular time.
"Q. To this date, have you been charged with any
crime?
"A. Not that I know of, unless they are still going
to prosecute."
In summation, the Government attorney stated, "[Taliento]
received no promises that he would not be indicted."
The issue now before the Court arose on petitioner's
motion for new trial based on newly discovered evidence.
An affidavit filed by the Government as part of its opposition
to a new trial confirms petitioner's claim that a
promise was made to Taliento by one assistant, DiPaola, 1
that if he testified before the grand jury and at trial he
would not be prosecuted.~ DiPaola presented the Government's
case to the grand jury but did not try the case
in the District Court, and Golden, the assistant who took
over the case for trial, filed an affidavit stating that
DiPaola assured him before the trial that no promises of
immunity had been made to Taliento.3 The United
1 During oral argument in this Court it was stated that DiPaola
was on the staff of the Fnited States Attorney when he made the
affidavit in 1969 and remained on that staff until recently.
2 DiPaola's affidavit reads, in part, as follows:
"It was agreed that if ROBERT EDWARD TALIENTO would
testify before the Grand Jury a1, a witness for the Government, ...
he would not be ... indirted. . . . It was further agreed and understood
that he, ROBERT EDWARD TALIENTO, would sign a
Waiver of Immunity from prosec ution before the Grand Jury, and
that if he eventually testified as a witness for the Government at the
trial of the defendant, JOHN GIGLIO, he would not be prosecuted."
:< Golden's affidavit rends, in part, as follows:
"Mr. DiPaola ... advised that Mr. Taliento had not been granted
immunity but that he had not indicted him because Robert Taliento
was very young at the time of the alleged occurrence and obviously
had been overreached by the defendant Giglio."
GIGLIO v. UNITED STATES 153
150 Opinion of the Court
States Attorney, Hoey, filed an affidavit stating that he
had personally consulted with Taliento and his attorney
shortly before trial to emphasize that Taliento would
definitely be prosecuted if he did not testify and that if
he did testify he would be obliged to rely on the "good
judgment and conscience of the Government" as to
whether he would be prosecuted.4
The District Court did not undertake to resolve the
apparent conflict between the two Assistant United States
Attorneys, DiPaola and Golden, but proceeded on the
theory that even if a promise had been made by DiPaola
it was not authorized and its disclosure to the jury
would not have affected its verdict. We need not concern
ourselves with the differing versions of the events
as described by the two assistants in their affidavits.
The heart of the matter is that one Assistant United
States Attorney-the first one who dealt with Talientonow
states that he promised Taliento that he would not
be prosecuted if he cooperated with the Government.
As long ago as Mooney v. H oloha11;, 294 U. S. 103, 112
(1935), this Court made clear that deliberate deception
of a court and jurors by the presentation of known false
evidence is incompatible with "rudimentary demands of
justice." This was reaffirmed in Pyle v. Kansas, 317 U.S.
213 (1942). In Napue v. Illino-is, 360 U.S. 264 (1959),
we said, "[t]he same result obtains when the State, although
not soliciting false evidence, allows it to go uncorrected
when it appears." Id., at 269. Thereafter Brady
v. Maryland, 373 U. S., at 87, held that suppression of
material evidence justifies a new trial "irrespective of the
good faith or bad faith of the prosecution." See Ameri-
4 The Hoey affidavit, standing alone, contains at least an implication
that the Government would reward the cooperation of the
witness, and hence tends to confirm rather than refute the existence
of some understanding for leniency.
154 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
can Bar Association, Project on Standards for Criminal
Justice, Prosecution Function and the Defense Function
§ 3.11 (a). When the "reliability of a given witness
may well be determinative of guilt or innocence,"
nondisclosure of evidence affecting credibility falls within
this general rule. Napue, supra, at 269. We do not,
however, automatically require a new trial whenever
"a combing of the prosecutors' files after the trial has
disclosed evidence possibly useful to the defense but
not likely to have changed the verdict .... " United
States v. Keogh, 391 F. 2d 138, 148 (CA2 1968). A finding
of materiality of the evidence is required under
Brady, supra, at 87. A new trial is required if "the
false testimony could . . . in any reasonable likelihood
have affected the judgment of the jury .... " Napue,
supra, at 271.
In the circumstances shown by this record, neither
DiPaola's authority nor his failure to inform his superiors
or his associates is controlling. Moreover, whether the
nondisclosure was a result of negligence or design, it is
the responsibility of the prosecutor. The prosecutor's
office is an entity and as such it is the spokesman for
the Government. A promise made by one attorney must
be attributed, for these purposes, to the Government.
See Restatement (Second) of Agency § 272. See also
American Bar Association, Project on Standards for
Criminal Justice, Discovery and Procedure Before Trial
§ 2.1 (d). To the extent this places a burden on the
large prosecution offices, procedures and regulations can
be established to carry that burden and to insure communication
of all relevant information on each case to
every lawyer who deals with it.
Here the Government's case depended almost entirely
on Taliento's testimony; without it there could have been
no indictment and no evidence to carry the case to the
jury. Taliento's credibility as a witness was therefore
GIGLIO v. UNITED STATES 155
150 Opinion of the Court
an important issue in the case, and evidence of any
understanding or agreement as to a future prosecution
would be relevant to his credibility and the jury was
entitled to know of it.
For these reasons, the due process requirements enunciated
in Napue and the other cases cited earlier require
a new trial, and the judgment of conviction is therefore
reversed and the case is remanded for further proceedings
consistent with this opinion.
Reversed and remanded.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of this case.
156 OCTOBER TERM, 1971
Opinion of the Court
PAP A CHRISTOU ET AL. V. CITY OF
JACKSONVILLE
405 U.S.
CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA,
FIRST DISTRICT
No. 70-5030. Argued December 8, 1971-Decided February 24, 1972
The Jacksonville vagrancy ordinance, under which petitioners were
convicted, is void for vagueness, in that it "fails to give a person
of ordinary intelligence fair notice that his contemplated conduct
is forbidden by the statute," it encourages arbitrary and erratic
arrests and convict.ions, it makes criminal activities that by
modern standards are normally innocent, and it places almost
unfettered discretion in the hands of the police. Pp. 161- 171.
236 So. 2d 141, reversed.
DouGLAS, J., delivered the opinion of the Court, in which all l\Iembers
joined except PowELL and REH::-.QUIST, .J.J., who took no part
in the consideration or decision of the case.
Samuel S. Jacobson argued the cause and filed briefs
for petitioners.
T. Edward Austin, Jr., argued the cause for respondent.
With him on the brief were James C. Rinaman, Jr.,
and J. Edward Wall.
MR. JusTICE DouGLAS delivered the opm10n of the
Court.
This case involves eight defendants who were convicted
in a Florida municipal court of violating a Jacksonville,
Florida, vagrancy ordinance.1 Their convictions
1 Jacksonville Ordinance Code § 26--57 provided at the time of
these arrests and convictions as follows:
"Rogues and vagabonds, or dissolute persons who go about beggi1!g
common gamblers, persons who use juggling or unlawful games or
plays, common drunkards, common night walkers, thieves, pilferers
or pickpockets, traders in stolen property, lewd, wanton and lascivious
persons, keepers of gambling places, common railers and brawlers,
PAPACHRISTOU v. CITY OF JACKSONVILLE 157
156 Opinion of the Court
were affirmed by the Florida Circuit Court in a consolidated
appeal, and their petition for certiorari was
denied by the District Court of Appeal on the authority
of Johnson v. State, 202 So. 2d 85-2.2 The case is
persons wandering or strolling around from place to place without
any lawful purpose or object, habitual loafers, disorderly persons,
persons neglecting all lawful business and habitually spending their
time by frequenting houses of ill fame, gaming houses, or places
where alcoholic beverages are sold or served, persons able to work
but habitually living upon the earnings of their wives or minor
children shall be deemed vagrants and, upon conviction in the
Municipal Court shall be punished as provided for Class D offenses."
Class D offenses at the time of these arrests and convictions
were punishable by 90 days' imprisonment, $500 fine, or both. Jacksonville
Ordinance Code § 1-8 (1965). The maximum punishment
has since been reduced to 75 days or $450. § 304.101 (1971). We
are advised that that downward revision was made to avoid federal
right-to-counsel decisions. The Fifth Circuit case extending right
to counsel in misdemeanors where a fine of $500 or 90 days' imprisonment
could be imposed is Harvey v. Mississippi, 340 F. 2d 263
(1965).
We are advised that at present the Jacksonville vagrancy ordinance
is § 330.107 and identical with the earlier one except that "juggling"
has been eliminated.
2 Florida also has a vagrancy statute, Fla. Stat. § 856.02 (1965),
which reads quite closely on the .Jacksonville ordinance. Jacksonville
Ordinance Code § 27-43 makes the commission of any Florida
misdemeanor a Class D offense against the City of Jacksonville. In
1971 Florida made minor amendments to its statute. See Laws 1971,
C. 71-132.
Section 856.02 was declared unconstitutionally overbroad in Lazarus
v. Faircloth, 301 F. Supp. 266. The court said: "All loitering,
loafing, or idling on the streets and highways of a city, even though
habitual, is not necessarily detrimental to the public welfare nor is it
under all circumstances an interference with travel upon them. It
may be and often is entirely innocuous. The statute draws no distinction
between conduct that is calculated to harm and that which
is essentially innocent." Id., at 272, quoting Hawaii v. Anduha,
48 F. 2d 171, 172. See also Smith v. Florida, post, p. 172.
The Florida disorderly conduct ordinance, covering "loitering
about any hotel, block, barroom, dramshop, gambling house or
158 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
here on a petition for certiorari, which we granted. 403
U. S. 917. For reasons which will appear, we reverse.
At issue are five consolidated cases. Margaret Papachristou,
Betty Calloway, Eugene Eddie Melton, and
Leonard Johnson were all arrested early on a Sunday
morning, and charged with vagrancy-"prowling by
auto."
Jimmy Lee Smith and Milton Henry were charged with
vagrancy-''vagabonds.''
Henry Edward Heath and a codefendant were arrested
for vagrancy-"loitering" and "common thief."
Thomas Owen Campbell was charged with vagrancy-
"common thief."
Hugh Brown was charged with vagrancy-"disorderly
loitering on street" and "disorderly conduct--resisting
arrest with violence."
The facts are stipulated. Papachristou and Calloway
are white females. Melton and Johnson are black males.
Papachristou was enrolled in a job-training program sponsored
by the State Employment Service at Florida Junior
College in Jacksonville. Calloway was a typing and
shorthand teacher at a state mental institution located
near Jacksonville. She was the owner of the automobile
in which the four def end ants were arrested. Melton was
a Vietnam war veteran who had been released from the
Navy after nine months in a veterans' hospital. On the
date of his arrest he was a part-time computer helper
while attending college as a full-time student in Jacksonville.
Johnson was a tow-motor operator in a
grocery chain warehouse and was a lifelong resident of
Jacksonville.
At the time of their arrest the four of them were riding
disorderly house, or wandering about the streets either by night
or by day without any known lawful means of support, or without
being able to give a satisfactory account of themselves" has also
been held void for "excessive broadness and vagueness" by the
Florida Supreme Court, Headley v. Selkowitz, 171 So. 2d 368, 370.
PAPACHRISTOU v. CITY OF JACKSONVILLE 159
156 Opinion of the Court
in Calloway's car on the main thoroughfare in Jacksonville.
They had left a restaurant owned by Johnson's
uncle where they had eaten and were on their way to a
nightclub. The arresting officers denied that the racial
mixture in the car played any part in the decision to
make the arrest. The arrest, they said, was made because
the defendants had stopped near a used-car lot
which had been broken into several times. There was,
however, no evidence of any breaking and entering on
the night in question.
Of these four charged with "prowling by auto" none
had been previously arrested except Papachristou who
had once been convicted of a municipal offense.
Jimmy Lee Smith and Milton Henry (who is not a
petitioner) were arrested between 9 and 10 a. m. on a
weekday in downtown Jacksonville, while waiting for a
friend who was to lend them a car so they could apply
for a job at a produce company. Smith was a part-time
produce worker and part-time organizer for a Negro
political group. He had a common-law wife and three
children supported by him and his wife. He had been
arrested several times but convicted only once. Smith's
companion, Henry, was an 18-year-old high school student
with no previous record of arrest.
This morning it was cold, and Smith had no jacket, so
they went briefly into a dry cleaning shop to wait, but
left when requested to do so. They thereafter walked
back and forth two or three times over a two-block stretch
looking for their friend. The store owners, who apparently
were wary of Smith and his companion, summoned
two police officers who searched the men and found
neither had a weapon. But they were arrested because
the officers said they had no identification and because
the officers did not believe their story.
Heath and a codefendant were arrested for "loitering"
and for "common thief." Both were residents of Jacksonville,
Heath having lived there all his life and being
160 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
employed at an automobile body shop. Heath had
previously been arrested but his codefendant had no arrest
record. Heath and his companion were arrested
when they drove up to a residence shared by Heath's
girl friend and some other girls. Some police officers
were already there in the process of arresting another
man. When Heath and his companion started backing
out of the driveway, the officers signaled to them to stop
and asked them to get out of the car, which they did.
Thereupon they and the automobile were searched. Although
no contraband or incriminating evidence was
found, they were both arrested, Heath being charged
with being a "common thief" because he was reputed to
be a thief. The codefendant was charged with "loitering"
because he ,vas standing in the driveway, an act
which the officers admitted was done only at their
command.
Campbell was arrested as he reached his home very
early one morning and was charged with "common thief."
He was stopped by officers because he was traveling at
a high rate of speed, yet no speeding charge was placed
against him.
Brown was arrested when he was observed leaving a
downtown Jacksonville hotel by a police officer seated
in a cruiser. The police testified he was reputed to be a
thief, narcotics pusher, and generally opprobrious character.
The officer called Brown over to the car, intending
at that time to arrest him unless he had a good
explanation for being on the street. Brown walked over
to the police cruiser, as commanded, and the officer
began to search him, apparently preparatory to placing
him in the car. In the process of the search he came
on two small packets which were later found to contain
heroin. When the officer touched the pocket where
the packets were, Brown began to resist. He was
charged with "disorderly loitering on street" and "disPAPACHRISTOU
v. CITY OF JACKSONVILLE 161
156 Opinion of the Court
orderly conduct-resisting arrest with violence." While
he was also charged with a narcotics violation, that
charge was nolled.
Jacksonville's ordinance and Florida's statute were
"derived from early English law," Johnson v. State, 202
So. 2d, at 854, and employ "archaic language" in their
definitions of vagrants. Id., at 855. The history is an
oftentold tale. The breakup of feudal estates in England
led to labor shortages which in turn resulted in the
Statutes of Laborers,3 designed to stabilize the labor force
by prohibiting increases in wages and prohibiting the
movement of workers from their home areas in search of
improved conditions. Later vagrancy laws became criminal
aspects of the poor laws. The series of laws passed
in England on the subject became increasingly severe.4
3 23 Edw. 3, c. 1 ( 1349); 25 Edw. 3, c. l (1350).
4 See 3 J. Stephrn, History of the Criminal Law of England 203-
206, 266-275; 4 W. Blackstone, Commentaries *169.
Ledwith v. Roberts, [1937] 1 K. B. 232, 271, gives the following
summary:
"The early Vagrancy Acts came into being under peculiar conditions
utterly different to those of the present time. From the time
of the Black Death in thD middle of the 14th century till the
middle of the 17th century, and indeed, although in diminishing
degree, right down to the reform of the Poor Law in the first half
of the 19th century, the roads of England were crowded with
masterless men and their families, who had lost their former employment
through a variety of causes, had no means of livelihood and
had taken to a vagrant life. The main causes were the gradual
decay of the feudal system under which the labouring classes had
been anchored to the soil, the economic slackening of the legal
compulsion to work for fixed wages, the break up of the monasteries
in the reign of Henry VIII, and the consequent disappearance of the
religious orders which had previously administered a kind of 'public
assistance' in the form of lodging, food and alms; and, lastly, the
economic changes brought about by the Enclosure Acts. Some of
these people were honest labourers who had fallen upon evil days,
others were the 'wild rogues,' so common in Elizabethan times and
literature, who had been born to a life of idleness and had no
162 OCTOBER TERM, 1971
Opinion of the Court 405U.S.
But "the theory of the Elizabethan poor laws no longer
fits the facts," Edwards v. California, 314 U. S. 160, 174.
The conditions which spawned these laws may be gone,
but the archaic classifications remain.
This ordinance is void for vagueness, both in the
sense that it "fails to give a person of ordinary intelligence
fair notice that his contemplated conduct is forbidden
by the statute," United States v. Harriss, 347
U. S. 612, 617, and because it encourages arbitrary and
erratic arrests and convictions. Thornhill v. Alabama,
310 U.S. 88; Herndon v. Lowry, 301 U.S. 242.
Living under a rule of law entails various suppositions,
one of which is that "[all persons] are entitled to be
informed as to what the State commands or forbids."
Lanzetta v. New Jersey, 306 U. S. 451, 453.
Lanzetta is one of a well-recognized group of cases
insisting that the law give fair notice of the offending
conduct. See Connally v. General Construction Co.,
269 U. S. 385., 391; Cline v. Frink Dairy Co., 274
U. S. 445; United States v. Cohen Grocery Co.,
255 U. S. 81. In the field of regulatory -statutes governing
business activities, where the acts limited are in a
narrow category, greater leeway is allowed. Boyce Motor
Lines, Inc. v. United States, 342 U. S. 337; United States
v. National Dairy Products Corp., 372 U. S. 29; United
States v. Petrillo, 332 U. S. 1.
The poor among us, the minorities, the average householder
are not in business and not alerted to the regulaintention
of following any other. It was they and their confederates
who formed themselves into the notorious 'brotherhood of beggars'
which flourished in the 16th and 17th centuries. They were a
definite and serious menace to the community and it was chiefly
against them and their kind that the harsher provisions of the
vagrancy laws of the period were directed."
And see Sherry, Vagrants, Rogues and Vagabonds-Old Concepts
in Need of Revision, 48 Calif. L. Rev. 557, 560-561 (1960); Note,
The Vagrancy Concept Reconsidered: Problems and Abuses of Status
Criminality, 37 N. Y. U. L. Rev. 102 (1962).
PAPACHRISTOU v. CITY OF JACKSONVILLE 163
156 Opinion of the Court
tory schemes of vagrancy laws; and we assume they
would have no understanding of their meaning and impact
if they read them. Nor are they protected from
being caught in the vagrancy net by the necessity of
having a specific intent to commit an unlawful act.
See Screws v. United States, 325 U. S. 91; Boyce Motor
Lines, Inc. v. United States, supra.
The Jacksonville ordinance makes criminal activities
which by modern standards are normally innocent.
"Nightwalking" is one. Florida construes the ordinance
not to make criminal one night's wandering, Johnson v.
State, 202 So. 2d, at 855, only the "habitual" wanderer or,
as the ordinance describes it, "common night walkers."
We know, however, from experience that sleepless people
often walk at night, perhaps hopeful that sleep-inducing
relaxation will result.
Luis Munoz-Marin, former Governor of Puerto Rico,
commented once that "loafing" was a national virtue in
his Commonwealth and that it should be encouraged. It
is, however, a crime in Jacksonville.
"[P] ersons able to work but habitually living upon the
earnings of their wives or minor children"-like habitually
living "without visible means of support"-might
implicate unemployed pillars of the community who
have married rich wives.
"[P]ersons able to work but habitually living upon the
earnings of their wives or minor children" may also
embrace unemployed people out of the labor market, by
reason of a recession 5 or disemployed by reason of technological
or so-called structural displacements.
5 In Edwards v. California, 314 U. S. 160, 177, in referring to City
of New York v. Miln, 11 Pet. 102, 142, decided in 1837, we said:
"Whatever may have been the not.ion then prevailing, we do not
think that it will now be seriously contended that because a person
is without employment and without funds he constitutes a 'moral
pestilence.' Poverty and immorality are not synonymous."
164 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Persons "wandering or strolling" from place to place
have been extolled by Walt Whitman and Vachel Lindsay."
The qualification "without any lawful purpose or
object" may be a trap for innocent acts. Persons "neglecting
all lawful business and habitually spending their
time by frequenting ... places where alcoholic beverages
are sold or served" would literally embrace many members
of golf clubs and city clubs.
Walkers and strollers and wanderers may be going to
or coming from a burglary. Loafers or loiterers may be
"casing" a place for a holdup. Letting one's wife support
him is an intra-family matter, and normally of no
concern to the police. Yet it may, of course, be the
setting for numerous crimes.
The difficulty is that these activities are historically
part of the amenities of life as we have known them.
They are not mentioned in the Constitution or in the Bill
of Rights. These unwritten amenities have been in
part responsible for giving our people the feeling of
independence and self-confidence, the feeling of creativity.
These amenities have dignified the right of dissent
and have honored the right to be nonconformists and
the right to defy submissiveness. They have encouraged
lives of high spirits rather than hushed, suffocating
silence.
They are embedded in Walt Whitman's writings, especially
in his "Song of the Open Road." They are reflected,
too, in the spirit of Vachel Lindsay's "I Want to Go
Wandering," and by Henry D. Thoreau.7
6 And see Reich, Police Questioning of Law Abiding Citizens, 75
Yale L. J. 1161, 1172 (1966): "If I choose to take an evening
walk to see if Andromeda has come up on schedule, I think I am
entitled to look for the distant light of Almach and Mirach without
finding myself staring into the blinding beam of a police flashlight."
7 "I have met with but one or two persons in the course of my
life who understood the art of Walking, that is, of taking walks,-
who had a genius, so to speak, for sauntering: which word is beautiPAPACHRISTOU
v. CITY OF JACKSONVILLE 165
156 Opinion of the Court
This aspect of the vagrancy ordinance before us is
suggested by what this Court said in 1876 about a broad
criminal statute enacted by Congress: "It would certainly
be dangerous if the legislature could set a net large
enough to catch all possible offenders, and leave it to
the courts to step inside and say who could be rightfully
detained, and who should be set at large." United States
v. Reese, 92 U. S. 214, 221.
While that was a federal case, the due process implications
are equally applicable to the States and to this
vagrancy ordinance. Here the net cast is large, not to
give the courts the power to pick and choose but to
increase the arsenal of the police. In Winters v. New
York, 333 U.S. 507, the Court struck down a New York
statute that n1ade criminal the distribution of a magazine
made up principally of items of criminal deeds of bloodshed
or lust so massed as to become vehicles for inciting
violent and depraved crimes against the person. The
infirmity the Court found was vagueness-the absence
of "ascertainable standards of guilt" ( id., at 515) in the
fully derived 'from idle people who roved about the country, in the
Middle Ages, and asked charity, under pretence of going a la Sainte
Terre,' to the Holy Land, till the children exclaimed, 'There goes a
Sainte Terrer,' a Saunterer, a Holy-Lander. They who never go
to the Holy Land in their walks, as they pretend, are indeed mere
idlers and vagabonds; but they who do go there are saunterers in
the good sense, such as I mean. Some, however, would derive the
word from sans terre, without land or a home, which, therefore, in
the good sense, will mean, having no particular home, but equally
at home everywhere. For this is the secret of successful sauntering.
He who sits still in a house all the time may be the greatest vagrant
of all; but the saunterer, in the good sense, is no more vagrant than
the meandering river, which is all the while sedulously seeking the
shortest course to the sea. But I prefer the first, which, indeed, is
the most probable derivation. For every walk is a sort of crusade,
preached by some Peter the Hermit in us, to go forth and reconquer
this Holy Land from the hands of the Infidels." Excursions 251-
252 (1893).
166 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
sensitive First Amendment area.8 Mr. Justice Frankfurter
dissented. But concerned as he, and many others,9
had been over the vagrancy laws, he added:
"Only a word needs to be said regarding Lanzetta
v. New Jersey, 306 U. S. 451. The case involved a
New Jersey statute of the type that seek to control
'vagrancy.' These statutes are in a class by themselves,
in view of the familiar abuses to which they
are put. . . . Definiteness is designedly avoided so
as to allow the net to be cast at large, to enable men
to be caught who are vaguely undesirable in the eyes
of police and prosecution, although not chargeable
with any particular offense. In short, these 'vagrancy
statutes' and laws against 'gangs' are not
fenced in by the text of the statute or by the subject
matter so as to give notice of conduct to be
avoided." Id., at 540.
Where the list of crimes is so all-inclusive and generalized
10 as the one in this ordinance, those convicted
8 For a discussion of the void-for-vagueness doctrine in the area
of fundamental rights see Note, The Void-For-Vagueness Doctrine
in the Supreme Court, 109 U. Pa. L. Rev. 67, 104 et seq.;
Amsterdam, Federal Constitutional Restrictions on the Punishment
of Crimes of Status, Crimes of General Obnoxiousness, Crimes of
Displeasing Police Officers, and the Like, 3 Crim. L. Bull. 205, 224
et seq. ( 1967).
9 See Edelman v. California, 344 U.S. 357, 362 (Black, J., dissenting);
Hicks v. District of Columbia, 383 U. S. 252 (DOUGLAS, J.,
dissenting); District of Columbia v. Hunt, 82 U. S. App. D. C. 159,
163 F. 2d 833 (Judge Stephens writing for a majority of the Court
of Appeals) ; Judge Rudkin for the court in Hawaii v. Anduha, 48
F. 2d 171.
The opposing views are numerous: Ex parte Branch, 234 Mo. 466,
137 S. W. 886; H. R. Rep. No. 1248, 77th Cong., 1st Sess., 2;
Perkins, The Vagrancy Concept, 9 Hastings L. J. 237 (1958);
People v. Craig, 152 Cal. 42, 91 P. 997.
10 President Roosevelt, in vetoing a vagrancy law for the District
of Columbia, said:
"The bill contains many provisions that constitute an improvement
PAPACHRISTOU v. CITY OF JACKSONVILLE 167
156 Opinion of the Court
may be punished for no more than vindicating affronts
to police authority:
"The common ground which brings such a motley
assortment of human troubles before the magistrates
in vagrancy-type proceedings is the procedural laxity
which permits 'conviction' for almost any kind of
conduct and the existence of the House of Correction
as an easy and convenient dumping-ground for probover
existing law. Unfortunately, however, there are two provisions
in the bill that appear objectionable.
"Section 1 of the bill contains a number of clauses defining a
'vagrant.' Clause 6 of this section would include within that category
'any able-bodied person who lives in idleness upon the wages,
earnings, or property of any person having no legal obligation to
support him.' This definition is so broadly and loosely drawn that
in many cases it would make a vagrant of an adult daughter or son
of a well-to-do family who, though amply provided for and not
guilty of any improper or unlawful conduct, has no occupation and
is dependent upon parental support.
"Under clause 9 of said section 'any person leading an idle life ...
and not giving a good account of himself' would incur guilt and
liability to punishment unless he could prove, as required by section
2, that he has lawful means of support realized from a lawful
occupation or source. What constitutes 'leading an idle life' and
'not giving a good account of oneself' is not indicated by the statute
but is left to the determination in the first place of a police officer
and eventually of a judge of the police court, subject to further
review in proper cases. While this phraseology may be suitable for
general purposes as a definition of a vagrant, it does not conform
with accepted standards of legislative practice as a definition of a
criminal offense. I am not willing to agree that a person without
lawful means of support, temporarily or otherwise, should be subject
to the risk of arrest and punishment under provisions as indefinite
and uncertain in their meaning and application as those employed in
this clause.
"It would hardly be a satisfactory answer to say that the sound
judgment and decisions of the police and prosecuting officers must
be trusted to invoke the law only in proper cases. The law itself
should be so drawn as not to make it applicable to cases which
obviously should not be comprised within its terms.'' H. R. Doc.
No. 392, 77th Cong., 1st Bess.
168 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
lems that appear to have no other immediate solution."
Foote, Vagrancy-Type Law and Its Administration,
104 U. Pa. L. Rev. 603, 631. 11
Another aspect of the ordinance's vaguenei::s appears
when we focus, not on the lack of notice given a potential
offender, but on the effect of the unfettered discretion it
places in the hands of the Jacksonville police. Caleb
Foote, an early student of this subject, has called the
vagrancy-type law as offering "punishment by analogy."
Id., at 609. Such crimes, though long common in
Russia, 12 are not compatible with our constitutional
11 Thus, "prowling by auto," which formed the basis for the
vagrancy arrests and convictions of four of the petitioners herein,
is not even listed in the ordinance as a crime. But see Hanks v.
State, 195 So. 2d 49, 51, in whirh the Florida District Court of
Appeal construed "wandering or strolling from place to place" as
including travel by automobile.
12 .J. Hazard, The Soviet Legal System 133 (1962):
"The 1922 code was a step in the direction of precision in definition
of crime, but it was not a complete departure from the concept
of punishment in accordance with the dictates of the i'Ocial consciousness
of the judge. Laying hold of an old tsarist code provision that
had been in effect from 1864 to 1903 known by the term 'analogy,'
the Soviet draftsmen inserted an article permitting a judge to consider
the social danger of an individual even when he had committed
no act defined as a crime in the specialized part of the code. He
was to be guided by analogizing the dangerous act to some act defined
as crime, but at the outset the analogies wer<:' not a lways
apparent, as when n husband was executed for the sadistic murder
of a wife, followed by dissection of her torso and shipment in a
trunk to a remote railway station, the court arguing that the crime
was analogous to banditry. At the time of this decision the code
permitted the death penalty for banditry but not for murder without
political motives or very serious social consequences."
"On the traditionally important subject of criminal law , Algeria
is rej ecting the flexibility introduced in the Soviet criminal code by
the 'analogy' principle, as have the East-Central European and black
African states." Hazard, The Residue of Marxist Influence in Algeria,
9 Colum . .T. of Transnat'l L. 194, 224 (1970).
PAPACHRISTOU v. CITY OF JACKSONVILLE 169
156 Opinion of the Court
system. We allow our police to make arrests only on
"probable cause," '" a Fourth and Fourteenth Amendment
standard applicable to the States 14 as well as to
the Federal Government. Arresting a person on suspicion,
like arresting a person for investigation, is foreign
to our system, even when the arrest is for past criminality.
Future criminality, however, is the common
justification for the presence of vagrancy statutes. See
Foote, supra, at 625. Florida has, indeed, construed
her vagrancy statute "as necessary regulations,"
inter alia, "to deter vagabondage and prevent crimes."
Johnson v. State, 202 So. 2d 852; Smith v. State, 239
So. 2d 250, 251.
A direction by a legislature to the police to arrest all
"suspicious" persons 15 would not pass constitutional
muster. A vagrancy prosecution may be merely the
cloak for a conviction which could not be obtained on
the real but undisclosed grounds for the arrest. People
13 Johw:on v. United States, 333 U. S. 10, 15-17.
H Whiteley v. Warden, 401 U.S. 560. ·
15 On arrests for investigation, see Secret Detention by the Chicago
Police, A Report by the American Civil Liberties Union ( 1959).
The table below contains nationwide data on arrests for "vagrancy"
and for "suspicion" in the three-year period 1968--1970.
Combined
Vagrancy Suspicion Offenses
Total Rate Total Rate Total Rate
rptd. per rptd. per rptd. per
Year* arrests 100,000 arrests 100,000 arrests 100,000
1968 ........ 99,147 68.2 89,986 61.9 189,133 130.1
1969 ........ 106,269 73.9 88,265 61.4 194,534 135.3
1970 ........ 101,093 66.7 70,173 46.3 171,266 113.0
3-year averages
...... 102,170 69.6 82,808 56.5 184,978 126.1
*Reporting agencies represent population of: 1968-145,306,0C0;
1969-143,815,000; 197~151,604,000.
Source: FBI Uniform Crime Reports, 1968--1970.
170 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
v. Moss, 309 N. Y. 429, 131 N. E. 2d 717. But as Chief
Justice Hewart said in Frederick Dean, 18 Crim. App.
133, 134 ( 1924):
"It would be in the highest degree unfortunate if
in any part of the country those who are responsible
for setting in motion the criminal law should entertain,
connive at or coquette with the idea that in a
case where there is not enough evidence to charge
the prisoner with an attempt to commit a crime, the
prosecution may, nevertheless, on such insufficient
evidence, succeed in obtaining and upholding a conviction
under the Vagrancy Act, 1824."
Those generally implicated by the imprecise terms of
the ordinance-poor people, nonconformists, dissenters,
idlers-may be required to comport themselves according
to the lifestyle deemed appropriate by the Jacksonville
police and the courts. Where, as here, there are no
standards governing the exercise of the discretion granted
by the ordinance, the scheme permits and encourages an
arbitrary and discriminatory enforcement of the law. It
furnishes a convenient tool for "harsh and discriminatory
enforcement by local prosecuting officials, against particular
groups deemed to merit their displeasure." Thornhill
v. Alabama, 310 U.S. 88, 97-98. It results in a regime in
which the poor and the unpopular are permitted to
"stand on a public sidewalk . . . only at the whim of
any police officer." Shuttlesworth v. Birmingham, 382
U. S. 87, 90. Under this ordinance,
"[I] f some carefree type of fellow is satisfied to
work just so much, and no more, as will pay for one
square meal, some wine, and a flophouse daily, but
a court thinks this kind of living subhuman, the fellow
can be forced to raise his sights or go to jail
as a vagrant." Amsterdam, Federal Constitutional
Restrictions on the Punishment of Crimes of Status,
156
PAPACHRISTOU v. CITY OF JACKSONVILLE 171
Opinion of the Court
Crimes of General Obnoxiousness, Crimes of Displeasing
Police Officers, and the Like, 3 Crim. L.
Bull. 205, 226 (1967).
A presumption that people who might walk or loaf or
loiter or stroll or frequent houses where liquor is sold,
or who are supported by their wives or who look suspicious
to the police are to become future criminals is too precarious
for a rule of law. The implicit presumption
in these generalized vagrancy standards-that crime is
being nipped in the bud-is too extravagant to deserve
extended treatment. Of course, vagrancy statutes are
useful to the police. Of course, they are nets making
easy the roundup of so-called undesirables. But the rule
of law implies equality and justice in its application.
Vagrancy laws of the Jacksonville type teach that the
scales of justice are so tipped that even-handed administration
of the law is not possible. The rule of law, evenly
applied to minorities as well as majorities, to the poor as
well as the rich, is the great mucilage that holds society
together. .
The Jacksonville ordinance cannot be squared with our
constitutional standards and is plainly unconstitutional.
Reversed.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of this case.
172 OCTOBER TERM, 1971
Opinion of the Court
SMITH ET AL. V, FLORIDA
405 U.S.
CERTIORARI TO THE SUPREME COURT OF FLORIDA
No. 70-5055. Argued December 8, 1971-
Decided February 24, 1972
Petitioners' convictions for violation of the Florida vagrancy statute
for "wandering or strolling around from place to place without
any lawful purpose or object" are vacated and the case is
remanded for reconsideration in light of Papachristou v. City of
Jacksonville, ante, p. 156. Pp. 172-173.
239 So. 2d 250, vacated and remanded.
DouoLAs, J., delivered the opinion of the Court, in which all
Justices joined, except POWELL and REHNQUIST, JJ., who took no
part in the consideration or decision of the case.
Phillip A. Hubbart argued the cause and filed briefs
for petitioners.
Nelson E. Bailey, Assistant Attorney General of Florida,
argued the cause for respondent pro hac vice. With
him on the brief was Robert L. Shevin, Attorney
General.
MR. JUSTICE DouGLAS delivered the opinion of the
Court.
Florida's vagrancy statute 1 includes in the term "vagrants,"
who can be criminally charged and convicted,
"persons wandering or strolling around from place to
place without any lawful purpose or object." 2 The
defendants were so charged and pleaded not guilty,
waived trial by jury, and were tried by a judge, who
denied a motion to dismiss. The Florida Supreme Court
affirmed, two judges dissenting. 239 So. 2d 250. The
1 Fla. Stat. § 856.02 (1965). See Papachristou v. City of Jacksonville,
decided this day, ante, at 157 n. 2.
2 § 856.02.
SMITH v. FWRIDA 173
172 Opinion of the Court
case is here on a petition for a writ of certiorari which we
granted. 403 U. S. 917.
We have this day decided Papachristou v. City of
Jacksonville, ante, p. 156. We therefore vacate and remand
the judgment in the instant case for reconsideration
in light of Papachristou.
So ordered.
MR. JusTrCE PowELL and MR. JusTICE REHNQUIST
took no part in the consideration or decision of this case.
174 OCTOBER TERM, 1971
Syllabus 405 u. s.
D. H. OVERMYER CO., INC., OF OHIO ET AL. v.
FRICK CO.
CERTIORARI TO THE COURT OF APPEALS OF OHIO,
LUCAS COUNTY
No. 69-5. Argued November 9, 1971-Decided February 24, 1972
After a corporation (Overmyer) had defaulted in its payments for
equipment manufactured and being installed by respondent company
(Frick), and Overmyer under a post-contract arrangement
had made a partial cash payment and issued an installment note
for the balance, Frick completed the work, which Overmyer accepted
as satisfactory. Thereafter Overmyer again asked for
relief and, with counsel for both corporations participating in the
negotiations, the first note was replaced with a second, which contained
a "cognovit" provision in conformity with Ohio law at
that time whereby Overmyer consented in advance, should it default
in interest or principal payments, to Frick's obtaining a
judgment without notice or hearing, and i.%ued certain second
mortgages in Frick's favor, Frick agreeing to release three mechanic's
liens, to reduce the monthly payment amounts and interest
rate, and to extend the time for final payment. When Overmyer,
claiming a contract breach, stopped making payments on
the new note, Frick, under the cognovit provision, through an attorney
unknown to but on behalf of Overmyer, and without personal
service on or prior notice to Overmyer, caused judgment to
be entered on the note. Overmyer's motion to vacate the judgment
was overruled after a post-judgment hearing, and the judgment
court's decision was affirmed on appeal against Overrnyer's
contention that the cognovit procedure violated due process requirements.
Held: Overmyer, for consideration and with full
awareness of the legal consequences, waived its rights to prejudgment
notice and hearing, and on the facts of this case, which involved
contractual arrangements between two corporations acting
with advice of counsel, the procedure under the cognovit clause
(which is not unconstitutional per se) did not violate Overmyer's
Fourteenth Amendment rights. Pp. 182~188.
Affirmed.
BLACKMUN, J., delivered the opm1on of the Court , in which all
Members joined except POWELL and REHNQUIST, JJ., who took no
part in the consideration or decision of the case. DouGLAs, J .,
D. H. OVERMYER CO. v. FRICK CO. 175
174 Opinion of the Court
filed a concurring opinion, in which MARSHALL, J., joined, post, p.
188.
Russell Morton Brown argued the cause and filed a
brief for petitioners.
Greyory M. Harvey argued the cause for respondent.
With him on the brief was James M. Tuschman.
Franklin A. Martens filed a brief for the Ohio State
Legal Services Assn. et al. as amici curiae urging
reversal.
MR. JusTICE BLACKMUN delivered the opinion of the
Court.
This case presents the issue of the constitutionality,
under the Due Process Clause of the Fourteenth Amendment,
of the cognovit note aut:10rized by Ohio Rev.
Code § 2323.13. 1
1 When the judgment challenged here was entered in 1968 the statute
read:
"Sec. 2323.13. (A) An attorney who confesses judgment in a case,
at the time of making such confession, must produce the warrant
of attorney for making it to the court before which he makes the
confession, which shall be in the county where the maker or any one
oi several makers resides or in the county where the maker or any one
of several makers signed the warrant of attorney authorizing confession
of judgment, any agreement to the contrary notwithstanding;
and the original or a copy of the warrant shall be filed with the clerk.
"(B) The attorney who represents the judgment creditor shall include
in the petition a statement setting forth to the best of his
knowledge the last known address of the defendant.
"(C) Immediately upon entering any such judgment the court
shall notify the defendant of the entry of the judgment by personal
service or by registered or certified mail mailed to him at the address
set forth in the petition."
Senate Bill No. 85, 133 Ohio Laws 196-198 ( 1969-1970), effective
Sept. 16, 1970, amended paragraphs (A) and (C), in ways not
pertinent here, and added paragraph (D);
"(D) A warrant of attorney to confess judgment contained in any
promissory note, bond, security agreement, lease, contract, or other
176 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
The cognovi t is the ancient legal device by which the
debtor consents in advance to the holder's obtaining a
judgment without notice or hearing, and possibly even
with the appearance, on the debtor's behalf, of an attorney
designated by the holder! It was known at least
as far back as Blackstone's time. 3 W. Blackstone, Commentaries
*397.3 In a case applying Ohio law, it was
evidence of indebtedness executed on or after January 1, 1971, is
invalid and the courts are without authority to render a judgment
based upon such a warrant unless there appears on the instrument
evidencing t.he indebtedness, directly above or below the signature
of each maker, or other person authorizing the confession, in such
type size or distinctive matking that it appears more clearly and
conspicuously than anything else on the document:
"'Warning-By signing this paper you give up your right to notice
and court trial. If you do not pay on time a court judgment may
be taken a.gainst you without your prior knowledge and the powers
of a court can be used to collect from you or your employer regardless
of any claims you may have against the creditor whether for
returned goods, faulty goods, failure on his part to comply with the
agreement, or any other cause.'"
2 The Iowa Supreme Court succinctly has defined a cognovit as
"the written authority of the debtor and his direction ... to enter
judgment against him as stated therein." Blott v. Blott, 227 Iowa
1108, 1111-1112, 290 N. W. 74, 76 (1940).
In Jones v. John Hancock Mutual Life lru;urance Co., 289 F.
Supp. 930, 935 (WD Mich. 1968) , aff'd, 416 F. 2d 829 (CA6 1969),
Judge Fox, in applying Ohio law, pertinently observed:
"A cognovit note is not an ordinary note. It is indeed an extraordinary
note which authorizes an attorney to confess judgment
against the person or persons signing it. It is written authority of
a debtor and a direction by him for the entry of a judgment against
him if the obligation set forth in the note is not paid when due.
Such a judgment may be taken by any person or any company holding
the note, and it cuts off every defense which the maker of the
note may otherwise have. It likewise cuts off all rights of appeal
from any judgment taken on it."
3 Historical references appear in General Contract Purcha,se Corp.
Y. Max Keil Real Estate Co., 35 Del. 531, 532-533, 170 A. 797, 798
(1933), and First Nat. Bk. v. White, 220 Mo. 717, 728-732, 120
s. w. 36, 39-40 (rn09).
D. H. OVERMYER CO. v. FRICK CO. 177
174 Opinion of the Court
said that the purpose of the cognovit is "to permit
the note holder to obtain judgment without a trial of
possible defenses which the signers of the notes might
assert." Hadden v. Rumsey Products, Inc., 196 F. 2d 92,
96 ( CA2 1952). And long ago the cognovit method was
described by the Chief Justice of New Jersey as "the
loosest way of binding a man's property that ever was
devised in any civilized country." Alderman v. Diament,
7 N. J. L. 197, 198 (1824). Mr. Dickens noted
it with obvious disfavor. Pickwick Papers, c. 47. The
cognovit has been the subject of comment, much of it
critical.4
Statutory treatment varies widely. Some States specifically
authorize the cognovit.5 Others disallow it.6
4 Recent Cases, Confession of Judgments-Refusal of New York
State to Enforce Pennsylvania Cognovit Judgments, 74 Dick. L.
Rev. 750 (1970); Note, Enforcement of Sister State's Cognovit
.Judgments, 16 Wayne L. Rev. 118-1 (1970); H. Goodrich, Conflict
of Laws§ 73, p. 122 (4th ed. 1964); Hopson, Cognovit Judgments:
An Ignored Problem of Due Process and Full Faith and Credit, 29
U. Chi. L. Rev. 111 (1961); Hunter, The Warrant of Attorney
to Confess Judgment, 8 Ohio St. L. J. 1 (1941); Note, A Clash
in Ohio?: Cognovit Notes and the Business Ethic of the UCC, 35
U. Cin. L. Rev. 470 (1966); Comment, The Effect of Full Faith
and Credit on Cognovit Judgments, 42 U. Colo. L. Rev. 173 (1970);
Comment, Confessions of Judgment: The Due Process Defects, 43
Temp. L. Q. 279 (1970); Comment, Cognovit Judgments and the
Full Faith and Credit Clause, 50 B. U. L. Rev. 330 (1970); Comment,
Cognovit Judgments: Some Constitutional Considerations,
70 Col. L. Rev. 1118 (1970); Note, Confessions of Judgment,
102 U. Pa. L. Rev. 524 (1954); Note, Foreign Courts May Deny Full
Faith and Credit to Cognovit .Judgments and Must Do So When
Entered Pursuant to an Unlimited Warrant of Attorney, 56 Va.
L. Rev. 554 (1970); Note, Should a Cognovit Judgment Validly
Entered in One State be Recognized by a Sister State?, 30 Md. L.
Rev. 350 (1970).
5 Ill. Rev. Stat., c. 110, § 50; Mo. Rev. Stat. § 511.100; Ohio Rev.
Code § 2323.13; Pa. Stat. Ann., Tit. 12, §§ 738 and 739 and Pa. Rules
of Civil Procedure 2950-2976; S. D. Comp. Laws § 21-26-1.
6 See, for example, Ala. Code, Tit. 20, § 16, and Tit. 62, § 248;
178 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Some go so far as to make its employment a misdemeanor.'
The majority, however, regulate its use and
many prohibit the device in small loans and consumer
sales.8
In Ohio the cognovit has long been recognized by both
statute and court decision. 1 Chase's Statutes, c. 243,
§ 34 (1810); Osborn v. Hawley, 19 Ohio 130 (1850);
Marsden v. Soper, 11 Ohio St. 503 (1860); Watson v.
Paine, 25 Ohio St. 340 (1874); Clements v. Hull, 35
Ohio St. 141 (1878). The State's courts, however, give
the instrument a strict and limited construction. See
Peoples Banking Co. v. Brumfield Hay & Grain Co.,
172 Ohio St. 545, 548, 179 N. E. 2d 53, 55 (1961).
This Court apparently has decided only two cases concerning
cognovit notes, and both have come here in a
full faith and credit context. National Exchange Bank
v. Wiley, 195 U. S. 257 (1904); Grover & Baker Sewing
Machine Co. v. Radcliffe, 137 U. S. 287 (1890). See
American Surety Co. v. Baldwin, 287 U. S. 156 (1932).
I
The argument that a provision of this kind is offensive
to current notions of Fourteenth Amendment due process
is, at first glance, an appealing one. However, here, as
in nearly every case, facts are important. We state
them chronologically:
1. Petitioners D. H. Overmyer Co., Inc., of Ohio, and
D. H. Overmyer Co., Inc., of Kentucky, are segments of
a warehousing enterprise that counsel at one point in
Ariz. Rev. Stat. Ann. §§ 6-629 and 44-143; Mass. Gen. Laws Ann.,
C. 231, § 13A.
7 Ind. Ann. Stat. §§ 2-2904 and 2-2906; N. M. Stat. Ann. §§ 21-
9-16 and 21-9-18; R. I. Gen. Laws Ann. §§ 19-25-24 and 19-25-36.
8 See, for example, Conn. Gen. Stat. Rev. §§ 42-88 and 36-236;
Mich. Comp. Laws §§ 600.2906 and 493.12 , Mich. Stat. Ann. §§ 27 A.-
2906 and 23.667 (12); Minn. Stat. §§ 548.22, 168.71, and 56.12;
X J. Stat. Ann. § 2A: 16--9.
D. H. OVERMYER CO. v. FRICK CO. 179
174 Opinion of the Court
the litigation described as having built "in three years ...
180 warehouses in thirty states." The corporate structure
is complex. Because the identity and individuality of
the respective corporate entities are not relevant here,
we refer to the enterprise in the aggregate as "Overmyer."
2. In 1966 a corporation, which then was or at a later
date became an Overmyer affiliate, executed a contract
with the respondent Frick Co. for the manufacture
and installation by Frick, at a cost of $223,000, of an
automatic refrigeration system in a warehouse under
construction in Toledo, Ohio.
3. Overmyer fell behind in the progress payments due
from it under the contract. By the end of September
1966 approximately $120,000 was overdue. Because of
this delinquency, Frick stopped its work on October 10.
Frick indicated to Overmyer, however, by letter on that
date, its willingness to accept an offer from Overmyer to
pay $35,000 in cash "provided the balance can be evidenced
by interest-bearing judgment notes."
4. On November 3 Frick filed three mechanic's liens
against the Toledo property for a total of $194,031, the
amount of the contract price allegedly unpaid at that
time.
5. The parties continued to negotiate. In January
1967 Frick, in accommodation, agreed to complete the
work upon an immediate cash payment of 10% ($19,-
403.10) and payment of the balance of $174,627.90 in 12
equal monthly installments with 6½% interest per
annum. On February 17 Overmyer made the 10% payment
and executed an installment note calling for 12
monthly payments of $15,498.23 each beginning March 1,
1967. This note contained no confession-of-judgment
prov1s1on. It recited that it did not operate as a waiver
of the mechanic's liens, but it also stated that Frick would
forgo enforcement of those lien rights so long as there
was no default under the note.
180 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
6. Frick resumed its work, completed it, and sent Overmyer
a notice of completion. On March 17 Overmyer's
vice president acknowledged in writing that the system
had been "completed in a satisfactory manner" and that
it was "accepted as per the contract conditions."
7. Subsequently, Overmyer requested additional time
to make the installment payments. It also asked that
Frick release the mechanic's liens against the Toledo
property. Negotiations between the parties at that time
finally resulted in an agreement in June 1967 that
(a) Overmyer would execute a new note for the then-outstanding
balance of $130,997 and calling for payment of
that amount in 21 equal monthly installments of $6,891.85
each, beginning June 1, 1967, and ending in February
1969, two years after Frick's completion of the work (as
contrasted with the $15,498.23 monthly installments
ending February 1968 specified by the first note);
(b) the interest rate would be 6% rather than 6½ % ;
( c) Frick would release the three mechanic's liens;
(d) Overmyer would execute second mortgages, with
Frick as mortgagee, on property in Tampa and Louisville;
and (e) Overmyer's new note would contain a confession-
of-judgment clause. The new note, signed in
Ohio by the two petitioners here, was delivered to Frick
some months later by letter dated October 2, 1967, accompanied
by five checks for the June through October
payments. This letter was from Overmyer's general
counsel to Frick's counsel. The second mortgages were
executed and recorded, and the mechanic's liens were
released. The note contained the following judgment
clause:
"The undersigned hereby authorize any attorney
designated by the Holder hereof to appear in any
court of record in the State of Ohio, and waive this
issuance and service of process, and confess a judg174
D. H. OVERMYER CO. v. FRICK CO. 181
Opinion of the Court
ment against the undersigned in favor of the Holder
of this Note, for the principal of this Note plus interest
if the undersigned defaults in any payment of
principal and interest and if said default shall continue
for the period of fifteen ( 15) days."
8. On June 1, 1968, Overmyer ceased making the
monthly payments under the new note and, asserting a
breach by Frick of the original contract, proceeded to
institute a diversity action against Frick in the United
States District Court for the Southern District of New
York. Overmyer sought damages in excess of $170,000
and a stay of all proceedings by Frick under the note.
On July 5 Judge Frankel vacated an ex parte stay he
had theretofore granted. On August 7 Judge Mansfield
denied Overmyer's motion for reinstatement of the
stay. He concluded, "Plaintiff has failed to show any
likelihood that it will prevail upon the merits. On the
contrary, extensive documentary evidence furnished by
defendant indicates that the plaintiff's action lacks
merit."
9. On July 12, without prior notice to Overmyer, Frick
caused judgment to be entered against Overmyer (specifically
against the two petitioners here) in the Common
Pleas Court of Lucas County, Ohio. The judgment
amount was the balance then remaining on the note,
namely, $62,370, plus interest from May 1, 1968, and
costs. This judgment ,vas effected through the appearance
of an Ohio attorney on behalf of the def end ants
(petitioners here) in that Ohio action. His appearance
was "by virtue of the warrant of attorney" in the second
note. The lawyer waived the issuance and service of
process and confessed the judgment. This attorney was
not known to Overmyer, had not been retained by Overmyer,
and had not communicated with the petitioners
prior to the entry of the judgment.
182 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
10. As required by Ohio Rev. Code § 2323.13 (C), the
clerk of the state court, on July 16, mailed notices of
the entry of the judgment on the cognovit note to Overmyer
at addresses in New York, Ohio, and Kentucky.
11. On July 22 Overmyer, by counsel, filed in the Ohio
court motions to stay execution and for a new trial. The
latter motion referred to "[i]rregularity in the proceedings
of the prevailing party and of the court . . . ." On
August 6, Overmyer filed a motion to vacate judgment
and tendered an answer and counterclaim alleging breach
of contract by Frick, and damages. A hearing was held.
Both sides submitted affidavits. Those submitted by
Overmyer asserted lack of notice before judgment and
alleged a breach of contract by Frick. A copy of Judge
Mansfield's findings, conclusions, and opinion was placed
in the record. On l\Tovember 16 the court overruled each
motion.
12. Overmyer appealed to the Court of Appeals for
Lucas County, Ohio, specifically asserting deprivation of
due process violative of the Ohio and Federal Constitutions.
That court affirmed with a brief journal entry.
13. The Supreme Court of Ohio "sua sponte dismisse
[ d] the appeal for the reason· that no substantial
constitutional question exists herein."
We granted certiorari. 401 U. S. 992 (1971).
II
This chronology clearly reveals that Overmyer's situation,
of which it now complains, is one brought about
largely by its own misfortune and failure or inability to
pay. The initial agreement between Overmyer and Frick
was a routine construction subcontract. Frick agreed to
do the work and Overmyer agreed to pay a designated
amount for that work by progress payments at specified
times. This contract was not accompanied by any promissory
note.
D. H. OVERMYER CO. v. FRICK CO. 183
174 Opinion of the Court
Overmyer then became delinquent in its payments.
Frick naturally refrained fr<~m further work. This impasse
was resolved by the February 1967 post-contract
arrangement, pursuant to which Overmyer made an immediate
partial payment in cash and issued its installment
note for the balance. Although Frick had suggested
a confession-of-judgment clause, the note as executed and
delivered contained no provision of that kind.
Frick completed its work and Overmyer accepted the
work as satisfactory. Thereafter Overmyer again asked
for relief. At this time counsel for each side participated
in the negotiations. The first note was replaced
by the second. The latter contained the confessionof-
judgment provision Overmyer now finds so offensive.
However, in exchange for that provision and
for its execution of the second mortgages, Overmyer
received benefit and consideration in the form of
(a) Frick's release of the three mechanic's liens, (b) reduction
in the amount of the monthly payment, ( c) further
time in which the total amount was to be paid, and
( d) reduction of a half point in the interest rate.
Were we concerned here only with the validity of the
June 1967 agreement under principles of contract law,
that issue would be readily resolved. Obviously and
undeniably, Overmyer's execution and delivery of the
second note were for an adequate consideration and were
the product of negotiations carried on by corporate parties
with the advice of competent counsel.
More than mere contract law, however, is involved
here.
III
Petitioner Overmyer first asserts that the Ohio judgment
is invalid because there was no personal service
upon it, no voluntary appearance by it in Ohio, and no
genuine appearance by an attorney on its behalf. Thus,
184 OCTOBER TER:½, 1971
Opinion of the Court 405 U.S.
it is said, there was no personal jurisdiction over Overmyer
in the Ohio proceeding. The petitioner invokes
Pennoyer v. Neff, 95 U. S. 714, 732 (1878), and other
cases decided here and by the Ohio courts enunciating
accepted and long-established principles for in personam
jurisdiction. McDonald v. Mabee, 243 U. S. 90, 91
(1917); Vanderbilt v. Vanderbilt, 354 U. S. 416, 418
( 1957); &ars v. Weimer, 143 Ohio St. 312, 55 N. E. 2d
413 (1944); Ra.ilroad Co. v. Goodman, 57 Ohio St. 641,
50 N. E. 1132 (1897); Cleveland Leader Printing Co. v.
Green, 52 Ohio St. 487, 491, 40 N. E. 201, 203 (1895).
It is further said that whether a defendant's appearance
is voluntary is to be determined at the time of the
court proceeding, not at a much earlier date when an
agreement was signed; that an unauthorized appearance
by an attorney on a defendant's behalf cannot confer
jurisdiction; and that the lawyer who appeared in Ohio
was not Overmyer's attorney in any sens-e of the word,
but was only an agent of Frick.
The argument then proceeds to constitutional grounds.
It is said that due process requires reasonable notice and
an opportunity to be heard, citing Boddie v. Connecticut,
401 U.S. 371, 378 (1971). It is acknowledged, however,
that the question here is in a context of "contract waiver,
before suit has been filed, before any dispute has arisen"
and "whereby a party gives up in advance his constitutional
right to defend any suit by the other, to notice
and an opportunity to be heard, no matter what defenses
he may have, and to be represented by counsel of his
own choice." 9 In other words, Overmyer's position here
specifically is that it is "unconstitutional to waive in advance
the right to present a defense in an action on the
note." 10 It is conceded that in Ohio a court has the
9 Brief for Petitioners 16.
10 Tr. of Oral Arg. 17.
D. H. OVERMYER CO. v. FRICK CO. 185
174 Opinion of the Court
power to open the judgment upon a proper showing.
Bellows v. Bowlus, 83 Ohio App. 90, 93 , 82 N. E. 2d 429,
432 ( 1948). But it is claimed that such a move is discretionary
and ordinarily will not be disturbed on appeal,
and that it may not prevent execution before the debtor
has notice, Griffin v. Griffin, 327 U. S. 220, 231- 232
(1946). Goldberg v. Kelly, 397 U. S. 254 (1970), and
Sniadach v. Family Finance Corp., 395 U.S. 337 (1969),
are cited.
The due process rights to notice and hearing prior to
a civil judgment are subject to waiver. In National
Equipment Rental, Ltd. v. Szukhent, 375 U. S. 311
(1964), the Court observed:
" [I] t is settled . . . that parties to a con tract may
agree in advance to submit to the jurisdiction of a
given court, to permit notice to be served by the
opposinJ;!: party, or even to waive notice altogether."
Id., at 315-316.
And in Boddie v. Connecticut, supra, the C'ourt acknowledged
that "the hearing required by du~ process is subject
to waiver." 401 U. S., at 378-379.
This, of course, parallels the recognition of waiver in
the criminal context where personal liberty, rather than
a property right, is involved. Illinois v. Allen, 397 U. R.
337, 342-343 (1970) (right to be present at trial);
Miranda v. Arizona, 384 U. S. 436 , 444 (1966) (rights to
counsel and against compulsory self-incrimination); Fay
v . • Yoia, 372 F S. 391, 439 (1963) (habeas corpus);
Rogers v. United States, 340 U.S. 367,371 (1951) (right
against compulsory self-incrimination).
Even if, for present purposes, we assume that the
standard for waiver in a corporate-property-right case
of this kind is the same standard applicable to waiver in
a criminal proceeding, that is, that it be voluntary, knowing,
and intelligently made, Brady v. United States, 397
186 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
U. S. 742, 748 ( 1970); Miranda v. Arizona, 384 U. S.,
at 444, or "an intentional relinquishment or abandonment
of a known right or privilege," Johmon v.
Zerbst, 304 "G. S. 458, 464 (1938); Fay v. Noia, 372
U. S., at 439, and even if, as the Court has said in
the civil area, " [ w] e do not presume acquiescence in the
loss of fundamental rights," Ohio Bell Tel. Co. v. Public
Utilities Ccmm'n_, 301 U.S. 292, 307 (1937), that standard
was fully satisfied here.
Overmyer is a corporation. Its corporate structure is
complicated. Its activities are widespread. As its counsel
in the Ohio post-judgment proceeding stated, it has
built many warehouses in many States and has been party
to "tens of thousands of contracts with many contractors."
This is not a case of unequal bargaining power
or overreaching. The Overmyer-Frick agreement, from
the start, was not a contract of adhesion. There was no
refusal on Frick's part to deal with Overmyer unless
Overmyer agreed to a cognovit. The initial contract between
the two corporations contained no confession-ofjudgment
clause. When, later, the first installment note
from Overmyer came into being, it, too, contained no
provision of that kind. It was only after Frick's work
was completed and accepted by Overmyer, and when
Overmyer again became delinquent in its payments on
the matured claim and asked for further relief, that the
second note containing the clause was executed.
Overmyer does not contend here that it or its counsel
was not aware of the significance of the note and of the
cognovit provision. Indeed, it could not do so in the
light of the facts. Frick had suggested the provision in
October 1966, but the first note, readjusting the progress
payments, was executed without it. It appeared in the
second note delivered by Overmyer's own counsel in return
for substantial benefits and consideration to Overmyer.
Particularly important, it would seem, was the
D. H. OVERMYER CO. v. FRICK CO. 187
174 Opinion of the Court
release of Frick's mechanic's liens, but there were, in addition,
the monetary relief as to amount, time, and interest
rate.
Overmyer may not have been able to predict with
accuracy just how or when Frick would proceed under
the confession clause if further default by Overmyer
occurred, as it did, but this inability does not in itself
militate against effective waiver. See Brady v. United
States, 397 U. S., at 757; McMann v. Richardson, 397
U. S. 759, 772-773 (1970).
We therefore hold that Overmyer, in its execution and
delivery to Frick of the second installment note containing
the cognovit provision, voluntarily, intelligently, and
knowingly waived the rights it otherwise possessed to prejudgment
notice and hearing, and that it did so with full
awareness of the legal consequences.
Insurance Co. v. Morse, 20 Wall. 445 (1874), affords no
comfort to the petitioners. That case concerned the constitutional
validity of a state statute that required a
foreign insurance company, desiring to qualify in the
State, to agree not to remove any suit against it to a
federal court. The Court quite naturally struck down
the statute, for it thwarted the authority vested by Congress
in the federal courts and violated the Privileges
and Immunities Clause.
Myers v. Jenkins, 63 Ohio St. 101, 120, 57 N. E. 1089,
1093 (1900), involving an insurance contract that called
for adjustment of claims through the company alone
and without resort to the courts, is similarly unhelpful.
IV
Some concluding comments are in order:
I. Our holding necessarily means that a cognovit clause
is not, per se, violative of Fourteenth Amendment due
process. Overmyer could prevail here only if the clause
were constitutionally invalid. The facts of this case, as
188 OCTOBER TERM, 1971
DoUGLAS, J ., concurring 405 u. s.
,ve observed above, are important, and those facts amply
demonstrate that a cognovit provision may well serve a
proper and useful purpose in the commercial world and
at the same time not be vulnerable to constitutional
attack.
2. Our holding, of course, is not controlling precedent
for other facts of other cases. For example, where the
contract is one of adhesion, where there is great disparity
in bargaining power, and ·where the debtor receives
nothing for the cognovit provision, other legal consequences
may ensue.
3. Overmyer, merely because of its execution of the
cognovit note, is not rendered defenseless. It concedes
that in Ohio the judgment court may vacate its judgment
upon a sho,ving of a valid defense and, indeed, Overmyer
had a post-judgment hearing in the Ohio court. If there
were defenses such as prior payment or mistaken identity,
those defenses could be asserted. And there is
nothing we see that prevented Overmyer from pursuing
its breach-of-contract claim against Frick in a proper
forum. Here, again, that is precisely what Overmyer
has attempted to do, thu~ far unsuccessfully, in the
Southern District of New York.
The .iudgment is
Affirmed.
MR. JUSTICE POWELL and Ma. JUSTICE REHNQUIST
took no part in the consideration or decision of this case.
MR. JUSTICE DouGLAS. whom MR. JesTICE MARSHALL
joins, concurring.
I agree that the heavy burden against the waiver of
constitutional rights, which applies even in civil matters,
Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 r . S.
292, 307 ( 1937); Aetna Ins. Co. v. Kennedy, 301 U. S.
D. H. OVERMYER CO. v. FRICK CO. 189
174 DoUGLAB, J., concurring
389, 393 (1937), has been effectively rebutted by the
evidence presented in this record. Whatever procedural
hardship the Ohio confession-of-judgment scheme
worked upon the petitioners was voluntarily and understandingly
self-inflicted through the arm's-length bargaining
of these corporate parties.
I add a word concerning the contention that opening
of confessed judgments in Ohio is merely discretio!lary
and requires a higher burden of persuasion than is ordinarily
imposed upon defendants. As I read the Ohio
law of cognovit notes, trial judges have traditionally
enjoyed wide discretion in vacating confessed judgments.
32 Ohio Jur. 2d, Judgments § 558 (1958). In Livingstone
v. Rebman, 169 Ohio St. 109, 158 N. E. 2d 366
(1959), however, the Ohio Supreme Court imposed certain
safeguards on the exercise of a judge's discretion
in opening confessed judgments. That case also involved
a petition to open a confessed judgment where,
as here, the debtor alleged the affirmative defense of
failure of consideration. Using the preponderance-ofthe-
evidence test, the trial court had found insufficient
support for the debtor's claim and had dismissed the
motion to open. On appeal, ho·wever, the Ohio Supreme
Court reversed on the degree of proof needed to
vacate a confessed judgment. Said the court:
"[I] f there is credible evidence supporting the defense
... from which reasonable minds may reach
different conclusions, it is then the duty of the court
to suspend the judgment and permit the issue raised
by the pleadings to be tried by a jury or, if a jury
is waived, by the court." Id., at 121-122, 158 N. E.
2d, at 375. (Emphasis supplied.)
Thus it would appear that the Ohio confessed judgment
may be opened if the debtor poses a jury question, that
190 OCTOBER TERM, 1971
DouGLAS, J ., concurring 405 U.S.
is, if his evidence would have been sufficient to prevent
a directed verdict against him. That standard is a minimal
obstacle.*
The fact that a trial judge is dutybound to vacate
judgments obtained through cognovit clauses where debtors
present jury questions is a complete answer to the
contention that unbridled discretion governs the disposition
of petitions to vacate. See also Goodyear v.
Stone, 169 Ohio St. 124, 158 N. E. 2d 376 (1959);
M cMillen v. Willard Garage Inc., 14 Ohio App. 2d 112,
115, 237 N. E. 2d 155, 158 (1968); Central National Bank
of Cleveland v. Standard Loan & Finance, 5 Ohio App.
2d 101, 104, 195 N. E. 2d 597, 600 (1964).
The record shows that the petitioners were given every
opportunity after judgment to explain their affirmative
defense to the state courts and that the defense ,..,·as rejected
solely because the evidence adduced in support
thereof was too thin to warrant further presentation to
a jury.
*Thus the Ohio system places no undue burden of proof upon the
debtor desiring to open a confessed judgment, in marked contrast
to the Pennsylvania procedure involved in Swarb v. Lennox, post, p.
191. In Pennsylvania, in order to vacate such a judgment, a borrower
must prove his defense by the preponderance of the evidence rather
than by merely mustering t:'nough evidence to present a jury question.
Once the judgment is vacated, moreover, he must again prevail
by that standard at a subsequent trial. In effect, the Pennsylvania
confessed debtor is required to win two consecutive t rials, not
simply one. Given the proclivities of reasonable men to differ over
the probative value of jury questions, the Pennsylvania requirement
of twice sustaining the preponderance of the evidence imposes a
stiffer burden of persuasion.
SWARB v. LENNOX 191
Syllabus
SW ARB ET AL. V. LENNOX ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
No. 70-6. Argued November 9, 1971-Decided February 24, 1972
Appellants (hereafter plaintiffs), purporting to act on behalf of a
class cow,isting of all Pennsylvania residents who signed documents
containing cognovit provisions leading, or that could lead, to confessed
judgments in Philadelphia, brought this action challenging
the Pennsylvania system as unconstitutional on its face as violative
of due process. The three-judge District Court held that: the
Pennsylvania system leading to confessed judgments and execution
complies with due process only if "there has been an understanding
and voluntary consent of the debtor in signing the document";
plaintiffs did not rnstain their burden of proof with respect to lack
of valid consent in the execution of bonds and warrants of attorney
accompanying mortgages; the record did not establish that the
action could be maintained on behalf of natural persons with incomes
over $10,000, but an action could be maintained for those
who earn less than $10,000 and who signed consumer financing or
lease contracts containing cognovit provisions; there was no intentional
waiver of known rights by members of that class in executing
confession-of-judgment clauses; and no judgment by confession
might be entered after November 1, 1970, as to a member of the
recognized class unless it is shown that the debtor "intentionally,
understandingly, and voluntarily waived" his rights; and the court
declared the Pennsylvania practice of confessing judgments to be
unconstitutional, prospectively effective as noted, as applied to the
designated class, and enjoined entry of any confessed judgment
against a member of the class absent a showing of the required
waiver. The plaintiffs appealed, claiming that the entire Pennsylvania
scheme is unconstitutional on its face. Held:
I. The Penw,ylvania rules and statutes relating to cognovit provisions
are not unconstitutional on their face, as under a.ppropriate
circumstances, a cognovit debtor may be held effectively and legally
to have waived the rights he would possess if the document he
signed had contained no cognovit provision. D. H. Overmyer Co.
v. Frick Co., ante, p. 174. P. 200.
2. In light of the fact that the named defendants and the intervenors
have taken no cross appeal, the aflirmance of the judgment
192 OCTOBER TERM, 1971
Syllabus 405 U.S.
below does not mean that the District Court's opinion and judgment
are approved as to other aspects and details that were not
before this Court. P. 201.
314 F. Supp. 1091, affirmed.
BLACKMUN, J., delivered the opm1on of the Court, in which
BURGER, C. J., and BRENNAN, S'.rEWART, WHITE, and MARSHALL, JJ.,
joinf>d. WHITE, J., filed a conrurring opinion, post, p. 202. DouGLAs,
J., filed an opinion dissenting in part, post, p. 203. PoWELL
and REHNQUIST , JJ., took no part in the consideration or decision
of the case.
David A. Scholl argued the cause for appellants pro
hac vice. With him on the briefs was Harvey N.
Schmidt.
Philip C. Patterson argued the cause for appellees.
With him on the brief for appellees Middle Atlantic
Finance Assn. et al. was Marvin Comisky. J. Shane
Creamer, Attorney General, and Barry A. Roth, Assistant
Deputy Attorney General, filed a brief for appellee
the Commonwealth of Pennsylvania.
William L. Matz argued the cause for the Pennsylvania
Savings & Loan League as amicus curiae urging
affirmance. With him on the brief was Herbert Bass.
Briefs of amici curiae urging reversal were filed by
Don B. Kates, Jr., Martin R. Gli'ck, and Carol Ruth
Silver for California Rural Legal Assistance et al.; by
John J. Brennan and Gordon W. Gerber for the Pennsylvania
Bankers Assn.; by David M. Jones for the
Pennsylvania Credit Union League; and by Edward
Donald Foster and Blair C. Shick for the National Consumer
Law Center.
Briefs of amici curiae urging affirmance were filed by
Matthew Hale for the American Bankers Assn., and by
Gilbert Nurick and Moses K. Rosenberg for the Pennsylvania
Land Title Assn.
SWARB v. LENNOX 193
191 Opinion of the Court
MR. JusTICE BLACKMUN delivered the opinion of the
Court.
This appeal, heard as a companion to D. H. Overmyer
Co. v. Frick Co., ante, p. 174, decided today, also purports
to raise for the Court the issue of the due process validity
of cognovit provisions. The system under challenge in
this case is that of Pennsylvania.1 The three-judge
District Court, with one judge dissenting in part because,
in his view, the court did not go far enough, refrained
from declaring the Commonwealth's rules and statutes
unconstitutional on their face and granted declaratory
and injunctive relief only fo_r a limited class of cognovit
signers. 314 F. Supp. 1091 (ED Pa. 1970). The plaintiffs,
but not the defendants, appealed. We noted probable
jurisdiction the same day certiorari was granted
in Overmyer. 401 U. S. 991.
I
The cognovit system is firmly entrenched in Pennsylvania
and has long been in effect there.
A confession of judgment for money "may be entered
by the prothonotary ... without the agency of an attorney
and without the filing of a complaint, declaration
or confession, for the amount which may appear to be
due from the face of the instrument," Pa. Rule Civ.
Proc. 2951 (a), except that the action must be instituted
by a complaint if the instrument is more than 10 years
1 Pa. Rules Civ. Proc. 2950--2976, effective .Tan. 1, 1970 (which,
by the Act of .June 21, 1937, Pa. Laws 1982, have the effect of state
statutes); Act of Apr. 14, 1834, Pa. Stat. Ann., Tit. 17, § 1482 III;
Act of Feb. 24, 1806, Pa. Stat. Ann., Tit. 12, § 739; Act of ::\far. 21,
1806, Pa. Stat. Ann., Tit. 12, § 738. By Rule 2976, Pa. Stat. Ann.,
Tit. 12, § 739 is suspended "only insofar as it may be inconsistent
with these rules," and Pa. Stat. Ann., Tit. 12, § 738 is suspended
in its application to actions to confess judgment for money or for
possession of real .property.
194 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
old or cannot be produced for filing, "or if it requires the
occurrence of a default or condition precedent before
judgment may be entered." Rules 2951 (c) and (d). In
an action instituted by a complaint, the plaintiff shall
file a confession of judgment substantially in a prescribed
form, and the attorney for the plaintiff "may sign the
confession as attorney for the defendant" unless a
statute or the instrument provides otherwise. Rule 2955.
The prothonotary enters judgment "in conformity with
the confession." Rule 2956.2 The amount due, interest,
attorneys' fees, and costs may be included by the plaintiff
in the praecipe for a writ of execution. Rule 2957.
Within 20 days after the entry of judgment the plaintiff
shall mail the defendant written notice. Failure to do
this, however, does not affect the judgment lien. Rule
2958 (a). Within the same 20 days the plaintiff may
issue a writ of execution and may do so even if the notice
is not yet mailed. Rule 2958 (b). If an affidavit of
mailing is not filed within the 20-day period, the writ of
execution may not issue until 20 days after the affidavit
of mailing has been filed. Rule 2958 (c).
Relief from a judgment by confession may be sought
by a petition asserting " [ a] 11 grounds for relief whether
to strike off the judgment or to open it .... " Rule
2959 (a). If the petition states prima facie grounds for
relief, the court issues a rule to show cause and may
grant a stay. A defendant "waives all defenses and objections"
not included in the petition. The court "shall
dispose of the rule on petition and answer, and on any
testimony, depositions, admissions and other evidence."
Rules 2959 (b), (c), and (e). If the judgment is opened
in whole or in part, the issues are then tried. Rule 2960.
2 Prior to the effective date of Rules 295(}-2976, Pa. Stat. Ann.,
Tit. 12, § 738 provided that it "shall be the duty" of the prothonotary
to enter an applicat.ion and "on confession in writing ... he shall
enter judgment . . . ."
SWARB v. LENNOX 195
191 Opinion of the Court
The procedure for confession of judgment for possession
of real property is essentially the same except that
the action shall be commenced by filing a complaint.
Rules 2970-2973.
The prothonotary specifically is given power to "enter
judgments at the instance of plaintiffs, upon the confessions
of defendants." Pa. Stat. Ann., Tit. 17, § 1482.
The prothonotary is the clerk of the court of common
pleas. He has no judicial function. It has been said
that his power is derived from the instrument under
which he acts and not from his office, Smith v. Safeguard
Mut. Ins. Co., 212 Pa. Super. 83, 87, 239 A. 2d 824, 826
(1968), and that his entry of judgment is a ministerial
act, Lenson v. Sandler, 430 Pa. 193, 197, 241 A. 2d 66,
68 (1968).
It has also been said that the confession of judgment
procedure in Pennsylvania exists "independent of statute."
Equipment Corp. of America v. Primos Vanadium
Co., 285 Pa. 432, 437, 132 A. 360, 362 (1926); Cook v.
Gilbert, 8 Serg. & R. 567, 568 (1822); Hatch v. Stitt, 66
Pa. 264 (1870).
It is apparent, therefore, that in Pennsylvania confession-
of-judgment provisions are given full procedural
effect; that the plaintiff's attorney himself may effectuate
the entire procedure; that the prothonotary, a nonjudicial
officer, is the official utilized; that notice issues after the
judgment is entered; and that execution upon the confessed
judgment may be taken forth with. The defendant
may seek relief by way of a petition to strike the
judgment or to open it, but he must assert prima facie
grounds for this relief, and he achieves a trial only if he
persuades the court to open. Meanwhile, the judgment
and its lien remain.
The pervasive and drastic character of the Pennsylvania
system has been noted. Cutler Corp. v. Latshaw, 374
Pa. 1, 4-5, 97 A. 2d 234,236 (1953). See Kine v. Forman,
196 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
404 Pa. 301, 172 A. 2d 164 ( 1961), and Atlas Credit Corp.
v. Ezrine, 25 N. Y. 2d 219, 250 N. E. 2d 474 (1969).
II
Seven individuals are the named plaintiffs in the original
complaint filed in December 1969. Jurisdiction is
based on the civil rights statutes, 28 U. S. C. § 1343 and
42 U. S. C. § 1983. The plaintiffs purport to act on
behalf of a class consisting of all Pennsylvania residents
who have signed documents containing cognovit provisions
leading, or that could lead, to a confessed judgment
in Philadelphia County. The def end ants are the
county's prothonotary and sheriff, the officials responsible,
respectively, for the recording of confessed judgments
and for executing upon them. The complaint
alleges that each plaintiff has signed one or another type
of consumer financing agreement pursuant to which his
creditor has entered judgment; that each faces immediate
judicial sale of his home or personal belongings; that
the Pennsylvania rules and statutes are unconstitutional
on their face because they deprive members of the class
of procedural due process in the denial of notice and
hearing before judgment; that the signing of the cognovit
contract was not an intelligent and voluntary waiver
of the right to notice and hearing; that the only recourse
against the recorded judgment is an action to strike or
reopen; and that such recourse is costly and burdensome
to low income consumers, and denies them equal protection.
The relief sought is a declaration that the Pennsylvania
rules and statutes are unconstitutional, and an
injunction against the defendants' "operating under
the above acts and rules." A three-judge court was
requested.
The single District Judge entered a temporary restraining
order staying execution of judgments against the
seven plaintiffs. He also provided a procedure for addSWARB
v. LENNOX 197
191 Opinion of the Court
ing additional plaintiffs. The three-judge court continued
and expanded the restraining order to stay all executions
upon confessed judgments in the Commonwealth.
A number of additional plaintiffs were added,
and one original plaintiff was dismissed from the case.
A group of finance companies was permitted to intervene.
Stipulations were made. One was between counsel
for the plaintiffs and the city solicitor; another was
between counsel for the plaintiffs and for the intervenor
finance companies. These stipulations are not identical
but they do overlap. They established the following:
1. Judgments by confession against the various plaintiffs
had been entered ranging in amounts from $249.23
to $25,800.
2. If called as witnesses, the original plaintiffs would
testify to the facts alleged in the complaint. Each
would also testify as to his unawareness of the cognovit
clause, his lack of understanding of its significance if he
had read it, and his inability to bargain about it anyway.
3. If called, some of the plaintiffs would testify that
they were encouraged not to read their contracts; that
the judgments exceeded the debts because of the addition
of penalties, costs, and fees; that they could not
afford proceedings to strike or reopen; and that they
believed they had meritorious defenses.
4. The imposition and amount of sheriff's costs, bar
association fee schedules, and necessary deposition
and transcript costs in the cognovit procedure were
acknowledged.
The three-judge court held a hearing. In addition
to the appearance of counsel for the plaintiffs and for
the intervenors, an assistant city solicitor of Philadelphia
appeared for the named defendants, and a Deputy
Attorney General appeared for the Commonwealth.
The only plaintiff to testify was one of those added
after the complaint had been filed. She was a postal
198 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
clerk who earned $6,100 annually and who had agreed
with a door-to-door salesman to buy a carpet for $1,300.
Her contract contained a cognovit clause pursuant to
which a finance company had obtained a confessed judgment.
A detective and a finance company officer were
presented by the plaintiffs. They testified to the pervasiveness
of cognovit clauses and the "disbelief and
shock" of those who had signed them.
The plaintiffs also introduced in evidence by stipulation
a published report by David Caplovitz, Ph. D.,
Consumers in Trouble. This was a 1968 study of confessed-
judgment debtors in four . major Pennsylvania
cities. It included 245 Philadelphia debtors. The study
purported to show that 96%, had annual incomes of
less than $10,000, and 56% less than $6,000; that only
30o/o had graduated from high school; and that only
14% knew the contracts they signed contained cognovit
clauses.
The only other witness at the hearing was one called
by the intervenors. He was a finance company officer
and testified as to the usual practice of making loans.
The three-judge District Court held:
1. The Pennsylvania system leading to confessed judgment
and execution does comply with due process standards
provided "there has been an understanding and
voluntary consent of the debtor in signing the document."
314 F. Supp., at 1095.
2. If, however, there is no such understanding consent,
the procedure violates due process requirements of notice
and an opportunity to be heard. Ibid.
3. The plaintiffs did not sustain their burden of proof
with respect to the lack of valid consent in the execution
of bonds and warrants of attorney accompanying
mortgages. Id., at 1098.
4. The record did not establish that the action could
be maintained as a class action on behalf of individual
SWARB v. LENNOX 199
191 Opinion of the Court
natural persons with annual incomes of more than
$10,000. Id., at 1098-1099.
5. It could be maintained, however, as a class action
on behalf of natural persons residing in Pennsylvania
who earn less than $10,000 annually and who signed
consumer financing or lease contracts containing cognovit
provisions. / d., at 1099.
6. There was no intentional waiver of known rights
by members of that class in executing confession-of-judgment
clauses. These were the right to have prejudgment
notice and hearing, the right to have the burden of proof
on the creditor, and the right to avoid the expenses attendant
upon opening or striking a confessed judgment.
Since the Pennsylvania procedure with respect to the
designated class was based upon a waiver concept without
adequate understanding, it was violative of due process.
Id., at 1100.
7. It was not the federal court's function to dictate
to Pennsylvania "exactly what constitutes understanding
waiver." Ibid. Where the debtor is an attorney, an
affidavit to that effect may be all that is necessary to prove
understanding, but where the debtor is not a high school
graduate more proof "may be required." Id., at 1101. A
"statewide rule or legislation providing for the filing of
proof of intentional, understanding and voluntary consent,"
in order to comply with the court's opinion, was
among the methods available to the State to permit continued
use of the confession-of-judgment clause. / d., at
1100-1101, n. 24.
8. No judgment by confession may be entered as to a
member of the recognized class after November 1, 1970,
unless it is shown that at the time of executing the
document the debtor "intentionally, understandingly, and
voluntarily waived" his rights lost under the Pennsylvania
law. Id., at 1102-1103.
200 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
9. Liens of judgments recorded prior to June 1, 1970
( the date of the filing of the court's opinion), were preserved.
A confessed judgment on a contract signed before
June 1 could be entered between that date and
November 1, but could not be executed upon without a
prior hearing to determine the validity of the waiver.
The court then declared the Pennsylvania practice of
confessing judgments to be unconstitutional, prospectively
effective as of the dates stated, as applied to the class
designated, and enjoined the entry of any confessed judgment
against a member of the class in the absence of a
showing of the required waiver. 3 Id., at 1103. The
judge dissenting did so as to the limitation of relief to
those earning less than $10,000 annually. Id., at 1102.
in
From this judgment only the plaintiffs appeal. Their
claim is that the District Court erred in confining the
relief it granted to certain members of the appellants'
proffered class and that the court should have declared
the Pennsylvania rules and statutes unconstitutional on
their face. A holding of facial unconstitutionality, of
course, wholly apart from any class consideration, would
afford relief to every Pennsylvania cognovit obligor.
Today's decision in Overmyer, although it concerns a
corporate and not an individual debtor. is adverse to this
contention of the plaintiff-appellants. In Overmyer it
is recognized, as the District Court in this case recognized,
that, under appropriate circumstances, a cognovit
debtor may be held effectively and legally to have waived
those rights he would possess if the document he signed
had contained no cognovit provision.
On the plaintiff-appellants' appeal, therefore, the judgment
of the District Court must be affirmed.
3 Compare the result reached with respect to the Delaware system
in Osmond v. Spence, 327 F. Supp. 1349 (Del. 1971).
SWARB v. LENNOX 201
191 Opinion of the Court
This affirmance, however, does not mean that the District
Court's opinion and judgment are approved as to
their other aspects and details that are not before us.
As has been noted, the named defendants and the intervenors
have taken no cross appeal. Furthermore, the
Pennsylvania Attorney General's office, apparently due
to an interim personnel change, no longer supports the
position taken at the trial by the city solicitor and the
deputy attorney general and, not choosing to pursue its
customarily assumed duty to defend the Commonwealth's
legislation, now joins the appellants in urging here that
the rules and statutes_ are facially invalid. With the
Attorney General taking this position, argument on the
side of the defendant-appellees has been presented to
us only by the intervenor finance companies and by
amici. The permissible reach of this opposition, however,
coincides with and goes no further than the extent
of the appellants' appeal. In the absence of a
cross appeal, the opposition is in no position to attack
those portions of the District Court's judgment that are
favorable to the plaintiff-appellants.
IV
The decision in Overmyer and the disposition of the
present appeal prompt the following observations:
1. In our second concluding comment in Overmyer,
supra, at 188, we state that the decision is "not controlling
precedent for other facts of other cases," and we refer
to contracts of adhesion, to bargaining power disparity,
and to the absence of anything received in return for a
cognovit provision. When factors of this kind are present,
we indicate, "other legal consequences may ensue."
That caveat has possible pertinency for participants in
the Pennsylvania system.
2. Overmyer necessarily reveals some discomfiture on
our part with respect to the present case. However that
202 OCTOBER TERM, 1971
WHITE, J., conrurring 405 U.S.
may be, the impact and effect of Overmyer upon the
Pennsylvania system are not to be delineated in the onesided
appeal in this case and we make no attempt to do
so.
3. Problems of this kind are peculiarly appropriate
grist for the legislative mill.
On the appellants' appeal, the judgment of the District
Court is affirmed. The stay heretofore granted by the
Circuit Justice is dissolved.
Is is so ordered.
MR. JusTICE POWELL and MR. JusncE REHNQUIS'l'
took no part in the consideration or decision of this case.
rvIR. JUSTICE \\~HITE , concurring.
I join in the opinion of the Court and add these comments
about a narrow aspect of the case.
It is true that this Court has no jurisdiction of that
portion of the District Court's judgment from which
no appeal or cross-appeal was taken. 1\1 orley Construction
Co. v. Maryland Casualty Co., 300 U.S. 185, 191-192
(1937); cf. United States v. Raines, 362 U.S. 17, 27 n. 7
( 1960). But it is also well established that the prevailing
party below need not cross-appeal to entitle him
to support the judgment in his favor on grounds expressly
rejected by the court below. Walling v. General Industries
Co., 330 r. S. 545 ( 1947) ; Langnes v. Green, 282
U. S. 531, 534-539 (1931); United States v. American
Railway Express Co., 265 P. S. 425, 435-436 (1924); and
the Court may notice a plain error in the record that
disposes of a judgment before it. Reynolds v. United
States, 98 r. S. 145, addendum n. to op., pp. 168-169
(1879). Thus, despite the fact that appellee-intervenors
did not cross-appeal, they were free to support
that part of the judgment in their favor on grounds
that were presented and rejected by the District Court
SWARB v. LENNOX 203
191 DOUGLAS, J., dissenting in part
in arriving at an adverse judgment on other aspects of
the case. Those grounds, jf sustained, would not affect
the finality of the unappealed judgment, but they would,
if sufficient, be available to support the judgment of
the District Court insofar as it is challenged here.
X othing to the contrary is to be inferred from our affirmance
of that judgment on other grounds. At least that
is my understanding of the Court's opinion, which I join.
MR. JusTICE DovGLAS, dissenting in part.
Pennsylvania permits creditors to extract from debtors
their consent to a confession-of-judgment procedure
which, while not rendering debtors completely defenseless,
deprives them of many of the safeguards of ordinary
civil procedure. A group of low-income plaintiffs asked
the three-judge court below to enjoin the further operation
of this scheme on the ground that debtors who
consented to this abbreviated form of justice did so unwittingly
or did so out of. compulsion supplied by the
standard form of adhesion contracts. The District Court
granted limited relief, holding that the scheme worked a
denial of procedural due process only when applied to
individual debtors who earned less than $10,000 annually
and who entered into nonmortgage credit transactions,
except where it is shown prior to judgment that
their waivers had been knowing and voluntary. The
plaintiffs have appealed, arguing that the lower court
should have invalidated the regime on its face and that,
in any event, class relief was wrongly denied both to persons
earning more than $10,000 yearly and to home
mortgagors.
The Commonwealth did not cross-appeal but instead
now confesses that the scheme is unconstitutional and
agrees substantially with the appellants. Various lending
institutions intervened below but have not taken
204 OCTOBER TER~, 1971
Douous, .J., dissenting in part 405 u. s.
cross-appeals.1 When the appeal was filed in this Court,
they did, however, file a motion to dismiss that contained
an argument on the law governing the main facets
of the case. Moreover, at the request of this Court
they filed a brief, maintaining that the District Court
correctly excluded mortgage borrowers and consumer borrowers
with incomes in excess of $10,000 from the class
benefited by the decree and that it incorrectly found that
the Pennsylvania cognovit procedure was unconstitutional
unless the debtor knowingly and understandingly
consented to the authorization to confess judgment.
1 The absence of a cross-appeal means only that the appellate
court will not upset any portion of the lower court's judgment not
challenged by the appeal. As stated by Mr. Justice Cardozo in
Morley Construction Co. v . .11aryland Casualty Co .. 300 U. S. 185,
191-192:
"Without a cross-appeal, an appellee may 'urge in support of a
decree any matter appearing in the record although his argument
may involve an attack upon t he reasoning of the lower court or
an insistence upon matter overlooked or ignored by it.' United
States v. American Railway Express Co., 265 U. S. 425, 435. What
he may not do in the absence of a cross-appeal is to 'attack the
decree with a view either to enlarging his own rights thereunder
or of lessening the rights of his adversary, whether what he seeks
is to correct an error or to supplement the decree with respect to
a matter not dealt with below.' Ibid. The rule is invet.e rate and
certain. . . . Findings may be revisl'd at the instanre of an appellant,
if they are against the weight of evidence, where the case is
one in equity. This does not mean that they are subject to like
revision in behalf of appel!ees, at all events in circumstances where
a revision of the findings carries with it as an incident a revision
of the judgment. There is no need at this time to fix the limits
of the rule more sharply. 'Where each party appeals each may
assign error, but where only one party appeals the other is bound
by the decree in the court below, and he cannot assign error in
the appellate court, nor can he be hfard if the proceedings in the
appeal are correct, except in support of the decree from which the
appeal of the other party is taken.'"
SWARB v. LENNOX 205
191 DOUGLAS, J., dissenting in part
The appellees are the county's prothonotary and sheriff
and they are represented here by the Attorney General
of Pennsylvania who concedes before us that the State's
statutes in question are unconstitutional. No one suggests,
however, that there is lacking a case or controversy.
Appellants say the District Court did not go
far enough. Whether we affirm, modify, or reverse, the
decree of the District Court has an ongoing life. It
has not become moot. Large interests ride on the outcome
of this important litigation.
It is said, however, that the case is not appropriate
for review. We refuse to let confessions of error conclusively
govern the disposition of cases, acting only
after our examination of the record.2 We have remanded
for reconsideration in light of a confession of error. In
Young v. United States, 315 U. S. 257 ( 1942 ) , however,
we declined to remand but instead incorporated into
our holding the theory advanced by the Solicitor General
in support of the petitioner. Obviously a remand
does not bind the courts to the parties' view as to what
the law is.
"The considered judgment of the law enforcement
officers that reversible error has been committed is
entitled to great weight, but our judicial obligations
compel us to examine independently the errors confessed."
Id., at 258-259.
As we stated in Sibron v. New York, 392 U.S. 40, 58:
"It is the uniform practice of this Court to conduct
its own examination of the record in all cases
where the Federal Government or a State confesses
that a conviction has been erroneously obtained."
2 Mayberry v. Pennsylvania, 382 U. S. 286 (1965); Nicholson v.
Boles, 375 U. S. 25 (1963). SPC R. Stern & E. Gr!'i'sman, Supreme
Court Practict> 224-225 ( 4th ed. 1969).
206 OCTOBER TERM, 1971
DouoLAS, J., dissenting in part 405 U.S.
That is the practice in civil cases also. Cates v. Haderlein,
342 U. S. 804.
Moreover, once a case is properly here, our disposition
does not necessarily follow the recommendations or concessions
of the parties. Utah Comm'n v. El Paso
Gas Co., 395 U. S. 464, 468----469. In that case, the appellant
changed its view of the merits after the case
reached us and, like the appellee, thought the appeal
should be dismissed. An amicus, however, presented
contrary views. We concluded that the decree of the
District Court, after our prior remand, did not comply
with our order. Consensus of the parties does not, in
other words, control our decisionmaking process.3
The Court, to be sure, approves that part of the District
Court's opinion which holds that the Pennsylvania
confession-of-judgment scheme cannot constitutionally
be applied to the class of Pennsylvania residents who earn
less than $10,000 annually and who enter into nonmortgage
credit transactions, unless prior to judgment it is
shown that they voluntarily and knowingly executed such
instruments purporting to waive trial and appeal. On
the other hand, the Court now affirms without discussion
the refusals of the District Court ( 1) to extend similar
class relief to confessed debtors who either enter into
mortgage transactions or who earn more than $10,000
yearly, and (2) to declare the statutes facially unconstitutional.
314 F. Supp. 1091, 1102---1103, 1112 (1970).
3 Cf. California Welfare Rights Organization v. Superior Court of
Alameda County, 5 Cal. 3d 730, 488 P. 2d 953 (1971), where a state
official against whom an adverse judgment had been obtained took
no appeal; but the judgment was challenged in California by an
"aggrieved" organization which had been denied intervention in the
lower court and which appealed both from the denial of intervention
and from the judgment on the merits. The California Supreme
Court reversed on the merits.
SWARB v. LENNOX 207
191 DouGLAB, J., dissenting in part
It is anomalous that an appellee by confessing error
can defeat an appeal. In the instant case we have not
been handicapped by the appellees' refusal to oppose
the judgment below. Finance companies intervened in
the District Court. We have been fully informed by
them and by amici of the many facets of this controversy.
We should therefore discuss the merits and reach all
issues tendered.
208 OCTOBER TERM, 1971
Per Curiam 405 U.S.
RICHARDSON, SECRETARY OF HEALTH, EDUCATION,
AND "WELFARE V. WRIGHT ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
No. 70-161. Argued January 13, 1972-Decided Febrary 24, 1972*
In light of the adoption of new regulations providing that a recipient
of disability benefit payments pursuant to § 225 of the Social
Security Act be given notice of a proposed suspension of payments
and the reasons therefor, plus an opportunity to submit
rebuttal evidence, the judgment is vacated to permit reprocessing,
under the new regulations, of the disputed determinations.
321 F. Supp. 383, vacated and remanded.
Assistant Attorney General Gray argued the cause for
appellant in No. 70-161 and for appellee in No. 70-5211.
With him on the briefs were Solicitor General Griswold,
Kathryn H. Baldwin, Wilmot R. Hastings, Edwin H.
Y ourman, and Paul Merlin."
Robert N. Sayler argued the cause and filed briefs for
appellees in No. 70-161 and for appellants in No.
70-5211.
Briefs of amici curiae in both cases were filed by
Thomas L. Fike for the Legal Aid Society of Alameda
County; by David H. Marlin and Jonathan A. Weiss for
the National Council of Senior Citizens; and by Albert
C. N eimeth for Luella H. Mills et al. Bernard P. Becker
and Harvey N. Schmidt filed a brief for Stella Van
Guilder et al. as amici curiae.
PER CuRIAM.
We noted probable jurisdiction of these appeals, 404
U. S. 819 ( 1971), to consider the applicability of Gold-
*Together with No. 70-5211, Wright et ol. v. Richardson, Secretary
of Health, Education, and Welfare, also on appeal from the same
court.
RICHARDSON v. WRIGHT 209
208 DouGLAS, J., dissenting
berg v. Kelly, 397 U. S. 254 (1970), to the suspension
and termination of disability benefit payments pursuant
to § 225 of the Social Security Act, 70 Stat. 817, 42
U. S. C. § 425, and implementing regulations of the Department
of Health, Education, and Welfare. Shortly
before oral argument, we were advised that the Secretary
had adopted new regulations, effective December 27,
1971, governing the procedures to be followed by the
Social Security Administration in determining whether to
suspend or terminate disability benefits. These procedures
include the requirement that a recipient of benefits
be given notice of a proposed suspension and the reasons
therefor, plus an opportunity to submit rebuttal evidence.
In light of that development, we believe that
the appropriate course is to withhold judicial action pending
reprocessing, under the new regulations, of the determinations
here in dispute. If that process results in
a determination of entitlement to disability benefits,
there will be no need to consider the constitutional claim
that claimants are entitled to an opportunity to make
an oral presentation. In the ·context of a comprehensive
complex administrative program, the administrative
process must have a reasonable opportunity to evolve
procedures to meet needs as they arise. Accordingly, we
vacate the judgment of the District Court for the District
of Columbia, 321 F. Supp. 383 (1971), with direction
to that court to remand the cause to the Secretary
and to retain jurisdiction for such further proceedings, if
any, as may be necessary upon completion of the administrative
procedure.
Vacated and remanded.
MR. JUSTICE DouGLAS, dissenting.
While I join MR. JusTICE BRENNAN who reaches the
merits, I add a word about the unwisdom of the policy
pursued by the Court.
210 OCTOBER TERM, 1971
DOUGLAS, J., dissenting 405 U.S.
A three-judge district court held § 225 of the Social
Security Act, 42 U. S. C. § 425, unconstitutional, insofar
as it purported to authorize the Secretary of Health, Education,
and Welfare to suspend the payment of social
security disability benefits without giving prior notice
and "an opportunity to participate" to the disability
beneficiary. 321 F. Supp. 383, 386. The court remanded
the cause to the Secretary for the formulation of new
procedures consistent with its opinion. Judge Matthews,
troubled by an implication in the majority's opinion that
participation merely by way of written submissions might
satisfy the majority's notions of due process, dissented
"from so much of the opinion as seems to suggest that
the procedural requirements of due process may be satisfied
with something less than the 'opportunity' [ to participate]
specified in [Goldberg v. Kelly, 397 U.S. 254]."
Id., at 388. We noted probable jurisdiction in these
cross-appeals to evaluate the opinion below in light of
Goldberg. 404 U. S. 819.
Now, however, it is suggested that the Secretary has
so far complied with the instructions of the District
Court to formulate new procedures that we should remand
the ca.ses to the District Court for further proceedings
in light of these new requirements. Such a
course, I submit, would be a perversion of the philosophy
of due process that we expressed in Goldberg.
Judge Matthews, below, captured the essence of Goldberg
in her brief partial dissent:
"In Goldberg the Supreme Court held that a welfare
recipient, in addition to timely and adequate
notice detailing the reasons for a proposed termination
of benefits, must have 'an effective opportunity
to defend by confronting any adverse witnesses and
by presenting his own arguments and evidence
orally.'" 321 F. Supp., at 387-388.
RICHARDSON v. WRIGHT 211
208 DOUGLAS, J., dissenting
It cannot seriously be argued that the Secretary's "new
rules" comport with Goldberg. They may cure the notice
defect, but they make no provision whatsoever for
the presentation of oral testimony or the confrontation of
witnesses.1 We noted probable jurisdiction, I thought, to
determine if the difference between "welfare" payments
and "disability" payments is sufficient to say that one's
Fifth Amendment right to be heard may be satisfied by an
opportunity to make written submissions in the latter
case, although not in the former.2 We heard oral argument
on this basis. Because of the inadequacy of the
new rules, in light of Goldberg, the question will remain
regardless of the outcome of a remand.
I think it unseemly, needlessly to shuttle any litigant,
especially an indigent, back and forth from court to court,
hoping that his exhaustion of newly created remedies will
somehow or other make his problem disappear and relieve
us of an obligation. No concession promising justice to
the claimants has been-made. The issue of due process
1 The new provisions were issued as amendments to the Disability
Insurance State Manual (DISM). DISM § 265.lD now requires
state agencies to inform a beneficiary of a proposed suspension of
benefits, and the reasons therefor, before it formally requests the
Bureau of Disability Insurance to authorize the suspension. The
beneficiary must also be given an opportunity to submit rebuttal
evidence. Ibid. But the "opportunity" contemplated by this section,
and the similar provisions respecting cessation of benefits (DISM
§ 353.6A), encompass only written submissions.
2 This cause, however, like Goldberg, "presents no question requiring
our determination whether due process requires only an opportunity
for written submission, or an opportunity both for written
submission and oral argument, where there are no factual issues in
dispute or where the application of the rule of law is not intertwined
with factual issues." 397 U. S., at 268 n. 15. Disability cases, like
welfare cases, invariably turn on difficult and complex resolutions of
hotly disputed factual questions. See, e. g., Underwood v. Ribicoff,
298 F 2d 8.50, 851 (CA4 1962).
212 OCTOBER TERM, 1971
BRENNAN, J., dissenting 405 U.S.
was properly raised and is here for decision; and all the
requirements of case or controversy within the meaning
of Art. III of the Constitution have been satisfied.
MR. JuSTICE BRENNAN, with whom MR. JUSTICE
DouGLAS and MR. JusTICE MARSHALL join, dissenting.
I respectfully dissent. The Court justifies today's
sua sponte action on the ground that if reprocessing
under the Secretary's new regulations "results in a determination
of entitlement to disability benefits, there
will be no need to consider the constitutional claim that
claimants are entitled to an opportunity to make an oral
presentation." (Emphasis by the Court.) Avoidance
of unnecessary constitutional decisions is certainly a preferred
practice when appropriate. But that course is
inappropriate, indeed irresponsible, in this instance. We
will not avoid the necessity of deciding the important
constitutional question presented by claimants even
should they prevail upon· the Secretary's reconsideration.
The question is being pressed all over the country. The
Secretary's brief lists no less than seven cases presenting
it with respect to disability benefits and 10 cases presenting
it with respect to nondisability benefits.'
1 "The issue regarding a right to a hearing prior to suspension or
termination of disability benefits is presented in a number of other
cases: Doyle v. Richardson (C.A. 5, No. 31,104); Moore v. Richardson
(N.D. Calif., Civ. No. C-70-2573); Eldridge v. Richardson
(W.D. Va., Civ. No. 70-C-52-A) (dismissed May 6, 1971); Dye v.
Rwhardson (W.D. Pa., Civ. No. 70-1384) (dismissed March 8, 1971);
Harvey v. Richardson (W.D. Pa., Civ. No. 70-1460); Rodriquez v.
Finch (D. Colo., Civ. No. C-2294) (dismissed July 1, 1971); Olivas
v. Secretary of HEW (D. Colo., Civ. No. C-3262). The issue is also
presented in several nondisability cases: Anderson v. Finch (N.D.
Ohio, Civ. No. 70-425, decided January 15, 1971, and pending before
C.A. 6, No. 71-1317); Garofalo v. Richardson (S.D.N.Y., Civ.
No. 70-5133) (remanded July 16, 1971); Lindsay v. Richardson
RICHARDSON v. WRIGHT 213
208 BRENNAN, J., dissenting
The Secretary's new regulations permit discontinuance
of disability benefits without affording beneficiaries procedural
due process either in the form mandated by Goldberg
v. Kelly, 397 U. S. 254 (1970), or in the form
mandated by the District Court, 321 F. Supp. 383
(DC 1971). The regulations require only that the beneficiary
be informed of the proposed suspension or termination
and the information upon which it is
based and be given an opportunity to submit a written
response before benefits are cut off.2 This procedure
does not afford the beneficiary, as Goldberg requires
for welfare and old-age recipients, an evidentiary hearing
at which he may personally appear to offer oral evidence
and confront and cross-examine adverse witnesses.
Nor does the procedure satisfy the requirements of
due process as determined by the District Court. That
court held that the beneficiary must be given not only
notice but also, before he ~esponds, a "reasonable
opportunity to examine the documentary evidence"
upon which the Secretary relies and, in case of conflict
in the evidence, a decision by an impartial decisionmaker.
The court said, however, that an evidentiary
hearing and opportunity to confront adverse witnesses
(W.D. N.C., Civ. No. 2794); Van Guilder v. Richardson (D. Minn.,
Civ. No. 4-70--386); Hopkins v. Richardson (E.D. Pa., Civ. No.
71-37); Shisslak v. II. E. W. (D. Ariz., Civ. No. 71-35 TUC, decided
April 9, 1971 and pending before C.A. 9, No. 71-2060); Baker
v. Finch (N.D. Ga., Civ. No. 13786, decided September 13, 1971);
Corona v. Richardson (N.D. Calif., Civ. No. 70--2662); Recide v.
Richardson (D. Hawaii, Civ. No. 70-3426); Mills v. Richardson
(N.D.N.Y., Civ. No. 71-CV-208, decided October 15, 1971) ." Brief
for the Secretary 8-9, n. 9.
2 Apparently the new procedures apply only to cases involving
issues of medical recovery. We are advised, however, that "[tJhe
Secretary is presently developing a similar termination procedure to
cover terminations in cases involving a return to work but no issue
of medical recovery." Supplemental Brief for the Secretary 3.
214 OCTOBER TERM, 1971
BRENNAN, J., dissenting 405 u. s.
were not necessary, although "a hearing could be
held" if the beneficiary "submitted some evidence
that contradicts that possessed by the Administration."
321 F. Supp., at 387. Thus, under both Goldberg
and the District Court's decision, the omissions in the
Secretary's new regulations are fatal to the constitutional
adequacy of the procedures. Because we may
imminently be confronted with another case presenting
the question, and because its resolution is vitally essential
to the administration of an important Government program,
today's action in avoiding decision of the constitutional
question is not a responsible exercise of that practice.
We gain a brief respite for ourselves while the
Secretary, state agencies, and be~eficiaries continue confused
and uncertain. Moreover, the question has been
thoroughly and ably argued and briefed on both sides,
and we have the benefit of thoughtful and well-considered
majority and dissenting opinions in the District Court.
Today's disposition results in an unjustified waste, not
only of our own all too sparse time and energies, but
also of the time and energies of the three judges of
the District Court ·who must again suspend their own
heavy calendars to assemble for what can only be an
empty exercise. I cannot join in the Court's abdication
of our responsibility to decide this case.
Both the beneficiaries and the Secretary appeal from
the District Court's judgment. The beneficiaries contend
that the District Court erred in not holding that
the procedure must afford an evidentiary hearing as in
Goldberg. The Secretary contends that procedural due
process requirements are satisfied by the "paper" hearing
afforded by his new regulations. I agree with the beneficiaries
and would therefore vacate the judgment of the
District Court and remand with direction to enter a
new judgment requiring the procedures held in Goldberg
to be requisite with respect to discontinuance of welfare
RICHARDSON v. WRIGHT 215
208 BRENN AN, J ., dissenting
and old-age benefits. See Wheeler v. Montgomery, 397
U. S. 280 (1970).
Section 225 of the Social Security Act, 42 U. S. C.
§ 425, provides that "[i]f the Secretary, on the basis
of information obtained by or submitted to him, believes
that an individual entitled to benefits ... may have
ceased to be under a disabiJity, the Secretary may suspend
the payment of benefits ... until it is determined ...
whether or not such individual's disability has ceased
or until the Secretary believes that such disability has
not ceased." The District Court .held the statute unconstitutional
on the ground that "[t]he ex-parte suspension
power granted to the Secretary by section 225
is summary adjudication that is inconsistent with the
requirements of due process." 321 F. Supp., at 386.
The Secretary does not challenge that holding in this
Court as applied to his now-discarded procedures.
Rather, the Secretary insists that the "hearing on paper"
afforded to disability beneficiaries by his new regulations
is constitutionally sufficient. The Secretary does not
contend that disability beneficiaries differ from welfare
and old-age recipients with respect to their entitlement
to benefits or the drastic consequences that may befall
them if their benefits are erroneously discontinued. The
only distinctions urged are that the evidence ordinarily
adduced to support suspension and termination of disability
benefits differs markedly from that relied upon
to cut off welfare benefits and that an undue monetary
and administrative burden would result if prior hearings
were required. Neither distinction withstands analysis.
First. The Secretary points out that the decision to
discontinue disability benefits is generally made upon
the basis of wage reports from employers and reports
of medical examinations. This evidence, in the Secretary's
view, "is highly reliable and not of a type that
draws into issue veracity or credibility." Brief 10.
216 OCTOBER TERM, 1971
BRENNAN, J., dissenting 405 U.S.
"The basis upon which disability benefits are suspended
or terminated thus differs significantly from that upon
which the terminations of welfare benefits involved in
[Goldberg] rested." Id., at 25. Hence, the Secretary
concludes, while procedural due process requires a pretermination
evidentiary hearing for welfare and old-age
recipients, for disability beneficiaries a written presentation
will suffice.
The Secretary seriously misconstrues the holding in
Goldberg. The Court there said that "the pre-termination
hearing has one function only: to produce an initial
determination of the validity of the welfare department's
grounds for discontinuance of payments in order
to protect a recipient against an erroneous termination
of his benefits." 397 U. S., at 267. The Secretary does
not deny that due process safeguards fulfill the same
function in disability cases. In Goldberg, the Court
held that welfare recipients were entitled to hearings
because decisions to discontinue benefits were challenged
"as resting on incorrect or misleading factual premises
or on misapplication of rules or policies to the facts of
particular cases." Id., at 268. The Court expressly
put aside consideration of situations "where there are
no factual issues in dispute or where the application
of the rule of law is not intertwined with factual issues."
Id., at 268 n. 15. However reliable the evidence upon
which a disability determination is normally based, and
however rarely it involves questions of credibility and
veracity, it is plain that, as with welfare and old-age
determinations, the determination that an individual is
or is not "disabled" will frequently depend upon the
resolution of factual issues and the application of legal
rules to the facts found. It is precisely for that reason
that a hearing must be held.
The Secretary, of course, recognizes that disability
determinations often involve factual disputes. His new
RICHARDSON v. WRIGHT 217
208 BRENNAN, J., dissenting
procedures, as well as the post-termination procedures
already available, presumably derive from that premise.
The beneficiary may file a written response presenting
rebuttal evidence before his benefits are suspended or terminated;
after termination, he is entitled to reconsideration,
based upon written submissions, and then
a de novo evidentiary hearing, administrative appellate
review of the hearing examiner's decision, and, finally,
judicial review. Nevertheless, the Secretary insists that
the decision to discontinue disability benefits differs from
the decision to discontinue welfare benefits because the
latter "may" be based upon "personal and social situations
brought to the attention of the authorities by tips,
rumor or gossip." Brief 25. Yet it is irrelevant
how the matter is "brought to the attention of the
authorities," whether "by tips, rumor or gossip" or
otherwise. The question in a welfare determination,
as in a disability determination, is simply whether the
recipient continues to be eligible for benefits. Nor does
the Secretary make clear the relevance of "personal and
social situations." The S~cretary does say that " [ o] ne
of the recipients in [Goldberg], for example, had been
cut off because of her alleged failure to cooperate with
welfare authorities in suing her estranged husband; payments
to another were terminated because of alleged drug
addiction." Ibid. The second recipient, however, was
cut off because "he refused to accept counseling and
rehabilitation." 397 U. S., at 256 n. 2. Consequently,
both recipients lost their benefits for refusing to cooperate
with the authorities. That, however, is no distinction
from disability cases, for disability benefits will
also be discontinued if the beneficiary refuses to
cooperate.
To support the assertion that pre-termination hearings
are required in welfare cases because "credibility
and veracity" are in issue, the Secretary focuses upon
218 OCTOBER TERM, 1971
BRENNAN, J., dissenting 405 U.S.
certain language in Goldberg. He first quotes the statement
that "[p] articularly where credibility and veracity
are at issue, as they must be in many termination proceedings,
written submissions are a wholly unsatisfactory
basis for decision." Id., at 269. Apart from the obvious
fact that that was not an absolute statement intended
to limit hearings solely to those instances, it was but
one of three reasons given to demonstrate that written
submissions are insufficient. The Court also said that
written submissions "are an unrealistic option for most
recipients, who lack the educational attainment necessary
to write effectively and who cannot obtain professional
assistance" and that they "do not afford the flexibility
of oral presentations; they do not permit the recipient
to mold his argument to the issues the decisionmaker
appears to regard as important." Ibid. Significantly,
the Secretary does not deny· that those reasons are as
fully applicable to disability beneficiaries as to welfare
recipients.
The Secretary also relies upon the statement, quoted
in Goldberg from Greene v. lvlcElroy, 360 U. S. 474,
496 (1959), that:
"[W]here governmental action seriously injures an
individual, and the reasonableness of the action depends
on fact findings, the evidence used to prove
the Government's case must be disclosed to the
individual so that he has an opportunity to show
that it is untrue. While this is important in the
case of documentary evidence, it is even more important
where the evidence consists of the testimony
of individuals whose memory might be faulty or
who, in fact, might be perjurers or persons motivated
by malice, vindictiveness, intolerance, prejudice, or
jealousy. We have formalized these protections in
the requirements of confrontation and crossexamination."
397 U. S., at 270 (emphasis added).
RICHARDSON v. WRIGHT 219
208 BRENNAN, J., dissenting
Again, however, the statement hardly indicates that
confrontation and cross-examination are available to
welfare recipients only because "credibility and veracity"
are in issue. An individual has those rights because
facts are in issue, as the statement makes clear. Moreover,
the Court introduced its quotation of that statement
in Goldberq by pointing out that "[i]n
almost every setting where important decisions turn
on questions of fact, due process requires an opportunity
to confront and cross-examine adverse witnesses."
Id., at 269 (emphasis added). And, even assuming the
validity of the novel doctrine that confrontation and
cross-examination are available solely for the purpose of
testing "credibility and veracity," that would not justify
depriving the disability beneficiary of "an effective opportunity
to def end ... by presenting his own arguments
and evidence orally." Id., at 268. Finally, I see no
reason to suppose, nor does the Secretary suggest any,
that the "credibility and veracity" of doctors and
employers can never be in issue in a disability case.
Indeed, the Secretary's new regulations indicate that
they may. See Disability Ins. State Manual § 353.
The premise of the Secretary's entire argument is that
disability benefits are discontinued "only on the basis
of an objective consideration- that the previous disability
has ceased-and that conclusion rests on reliable information."
Brief 26. Whether or not the information
is reliable, the premise is questionable. The Secretary
himself emphasizes that disability determinations require
"specialized medical and vocational evaluations" and
not simply the acquisition of "medical and other relevant
data." Id., at 28. In any event, there are three grounds,
pertinent here, upon which disability can be found to
have ceased. None can fairly be characterized by the
term "objective."
220 OCTOBER TERM, 1971
BRENNAN, J., dissenting 405 U.S.
First, cessation of disability may be found if the beneficiary
refuses to cooperate with the social security authorities.
20 CFR § 404.1539 (c); see Claims Manual
§ 6706 (e). That judgment, of course, could be wholly
subjective, as the Secretary points out with reference
to welfare cases.
Second, cessation may be found if the beneficiary
"has regained his ability to engage in substantial gainful
activity . . . as demonstrated by work activity." 20
CFR § 404.1539 (a) (2); see Claims Manual § 6706 (a).
That decision does not, as the Secretary appears to assert,
rest solely "upon regular reports made by [ the beneficiary's]
employers to the government." Brief 25.
Rather, "the work performed" by the beneficiary "may
demonstrate" that he is no longer disabled, but only if
it "is both substantial and gainful." "Substantial work
activity involves the performance of significant physical
or mental duties, or a combination of both, productive
in nature." A finding of "substantial gainful activity"
depends upon the nature of the work performed, the
adequacy of the performance, and the special conditions,
if any, of the employment, as well as an evaluation of
the time spent and the amount of money earned by
the beneficiary. 20 CFR §§ 404.1532-404.1534.
Third, cessation of disability may be found if
the evidence establishes medical recovery. 20 CFR
§ 404.1539 (a) (1); see Claims Manual § 6706 (c). That
decision, of course, will be based upon medical examinations,
but it does not follow that it is necessarily "objective."
"The function of deciding whether or not an
individual is under a disability is the responsibility of
the Secretary," and a medical conclusion that the beneficiary
is or is not disabled "shall not be determinative
of the question." 20 CFR 404.1526. The Secretary's
decision that a beneficiary's impairment "is no
longer of such severity as to prevent him from engaging
RICHARDSON v. WRIGHT 221
208 BRENNAN, J., dissenting
in any substantial gainful activity," 20 CFR § 404.1539
(a)( 1), obviously depends upon more than an "objective"
medical report, for the application of the legal
standard necessarily requires the exercise of judgment.
And, of course, multiple conflicting medical reports are
"not uncommon." Richardson v. Perales, 402 U. S. 389,
399 (1971).
The Secretary's claim for "objectivity" is even less
persuasive in the situation where a beneficiary's benefits
are suspended. "Benefits are suspended when information
is received which indicates that the individual may
no longer be under a disability." Claims Manual § 6708.
Here, by definition, there has been no determination
that disability has ceased.
Finally, the post-termination reversal rate for disability
determinations makes the asserted "objectivity"
even more doubtful. According to the Secretary's figures
for 1971, 37% of the requests for reconsideration
resulted in reversal of the determination that disability
had ceased. Moreover, 55% of the beneficiaries who exercised
their right to a hearing won reversal. While,
as the Secretary says, these figures may attest to the
fairness of the system, Richardson v. Perales, supra, at
410, they also appear to confirm that the Court's reference
in Goldberg to "the welfare bureaucracy's difficulties
in reaching correct decisions on eligibility," 397 U. S.,
at 264 n. 12, is fully applicable to the administration of
the disability program.
Second. The Secretary also contends that affording
disability beneficiaries the opportunity to participate in
evidentiary hearings before discontinuance of their benefits
will result in great expense and a vast disruption
of the administrative system. This justification for
denial of pre-termination hearings was, of course, specifically
rejected in Goldberg, 397 U. S., at 265--266, and
222 OCTOBER TERM, 1971
BRENNAN, J., dissenting 405 u. s.
the Secretary offers no new considerations to support its
acceptance here.
In Goldberg, the Court pointed out "that termination
of aid pending resolution of a controversy over eligibility
may deprive an eligible recipient of the very means by
which to live while he waits." 397 U. S., at 264 (emphasis
in original). That statement applies equally to
eligible disability beneficiaries, for, as the District Court
noted and the Secretary does not deny, "a disability
beneficiary is by definition unable to engage in substantial
gainful activity and he would, therefore, be liable
to sustain grievous loss while awaiting the resolution
of his claim." 321 F. Supp., at 386. In view of that
result, the District Court concluded that the "fiscal and
administrative expenses to the government, whatever
their magnitude, are insufficient justification considering
the crippling blow that could be dealt to an individual
in these circumstances." Ibid. The Secretary's
response is simply to stress the magnitude of the burden.
Here, as in Goldberg, "[t]he requirement of a prior
hearing doubtless involves some greater expense." 397
U. S., at 266: The Secretary points out that current
procedures include a two-step determination of disability:
first by the state agency, after a district office
of the Social Security Administration has conducted a
disability investigation, and then, on review of the state
agency's determination, by the Administration's Bureau
of Disability Insurance, which is located in Baltimore,
Maryland.3 Thus, the Secretary says, a prior hearing
"either would require the beneficiary to travel great
distances or would neces.5itate that State or federal officials
travel to the area in which the beneficiary resides,
3 The Bureau cannot reverse a state agency's finding that disability
has ceased, although it can require reconsideration by the agency.
42 U. S. C. § 421 (c); 20 CFR § 404.1520 (c); Claims Manual
§ 6701 (c); see Brief for the Secretary 11-12, 17.
RICHARDSON v. WRIGHT 223
208 BRENNAN, J., dissenting
neither of which is practical." Brief 28-29. "Nor
could the decision-making function be turned over to
the Administration's district offices, which are located
conveniently to the beneficiaries, without staffing them
with individuals qualified to make the necessary medical
and vocational judgment." Id., at 29. Hence, the Secretary
concludes, prior hearings "would require massive
restructuring of the existing administrative adjudicative
process." Id., at 27.
Except for bald assertion, the Secretary offers nothing
to indicate that any great burden upon the system would
result if the state agencies conducted the hearings. Moreover,
the Secretary omits even to mention the existence
of the current post-termination hearing procedures. See
20 CFR §§ 404.917-404.941. It is reasonable to assume
that the only "restructuring" necessary would be a
change in the timing of the hearings. That was apparently
the method by which the Secretary required
the States to comply with Goldberg in the administration
of various other social security programs, see 45
CFR § 205.10, 36 Fed. Reg. 3034-3035, and it would
seem to be an equally available response here. While
the administration of the disability program to provide
prior hearings may involve "some greater expense," as
the Court noted in Goldberg, 397 U. S., at 266, that
expense should not be exaggerated in order to deprive
disability beneficiaries of their right to "rudimentary due
process," id., at 267.
The Secretary also claims that the requirement of
prior hearings "would result in losses to the Social Security
Trust Fund of nearly $16 million per year for disability
cases and still greater sums when all Title II
programs are considered." Brief 10. This conclusion
does not follow from the facts the Secretary presents.
As to the disability program, the Secretary says that
in 1971 there were 38,000 determinations that disability
224 OCTOBER TERM, 1971
BRENNAN, J., dissenting 405 U.S.
had ceased and that the average monthly benefit in those
cases was $207. If, to provide prior hearings, terminations
were delayed for two months, the Secretary says,
the cost in benefits paid pending the hearings would
approach $16 million. It is immediately apparent that
this figure is grossly inflated.
First, this figure depends upon the unwarranted assumption
that all beneficiaries will demand a prior hearing.
The Secretary suggests no reason to suppose that
would happen. In fact, while there were 38,000 disability
cessations in 1971, there were only 10,941 requests
for reconsideration, and although 6,885 cessations were
affirmed on reconsideration, there were only 2,330 requests
for hearings. These post-termination procedures,
of course, were utilized by beneficiaries who could not present
their views before termination. Under the new regulations,
affording notice and the opportunity to respond
in writing before termination, it may well be that even
fewer beneficiaries will demand hearings. In any event,
experience in the welfare area has not demonstrated
that recipients abuse their right to pre-termination hearings,
and the Secretary does not claim that disability
beneficiaries will do so.
Second, the $16 million figure requires not only that all
38,000 beneficiaries request prior hearings, but also that
they all lose. Yet, as noted above, 37% of the reconsiderations
on written submissions and 55% of the posttermination
hearings in 1971 resulted in reversal. The
Secretary does not claim, nor is it conceivable, that in
every case a prior hearing would uphold the initial determination
that disability had ceased.
Third, not only must every beneficiary request a prior
hearing and every hearing affirm cessation of disability,
it must also be true, to reach the $16 million figure, that
the Secretary will be unable to recover any of the benefits
paid to beneficiaries pending the hearings. That result
RICHARDSON v. WRIGHT 225
208 BRENNAN, J., dissenting
is unlikely. Section 204 (a) (I) of the Act, 42 U. S. C.
§ 404 (a) (I) ; see 20 CFR § § 404.501-404.502, directs
the Secretary, if he finds that there has been an overpayment,
to require a refund from the beneficiary or
to decrease any future benefits to which he may be entitled.
Thus, if the beneficiary is not "disabled," he
presumably can engage in "substantial gainful activity,"
and the Secretary may well secure a refund. If, on the
other hand, the case is a close one and the beneficiary
is later found to be "disabled" again, the Secretary may
reduce his benefits. Furthermore, § 204 (b), 42 U. S. C.
§ 404 (b); see 20 CFR §§ 404.506-404.509, directs the
Secretary not to require a refund or decrease benefits
if the beneficiary "is without fault" and a refund or decrease
"would defeat the purpose of" the Act or "would
be against equity and good conscience." The Secretary's
duty to waive claims for excess payments may well apply
in many termination cases, particularly where the beneficiary
is judgment proof. See 20 CFR § 404.508. Obviously,
there is no loss to the social security fund if
benefits paid to an ineligible beneficiary pending a hearing
are subject to statutory waiver.
Fourth, the $16 million figure depends upon the stated
premise that the requirement of a hearing would cause
a two-month delay in the termination of benefits. The
Secretary does not explain why he chose that time period.
Under the new regulations, a beneficiary receives notice
of the proposed discontinuance, is informed of the information
upon which it is based, and is given the opportunity
to submit a written response presenting rebuttal
evidence. Only then is the disability determination
made. It is difficult to believe that it would require
another two months just to provide a hearing.
Finally, under § 223 (a) (1) of the Act, 42 U. S. C.
§ 423 (a)(l); see Claims Manual § 6707, benefits must
be paid for two months after the month in which disa226
OCTOBER TERM, 1971
BRENNAN, J., dissenting 405 U.S.
bility ceases. The $16 million figure depends upon the
unwarranted assumption that all terminations occur at
least two months after disability is found to have ceased.
In this case, for example, the state agency determined
that plaintiff Atkins' disability ceased in January. The
Bureau of Disability Insurance approved that determination
and on February 3 informed Atkins that his benefits
would be terminated at the end of March. Thus,
even assuming a two-month delay for a hearing, there
would be no cost whatever to the trust fund.
Viewing Title II programs as a whole, the Secretary
points out that there were nearly three million terminations
of benefits in 1969. The vast majority of these
terminations were for death, attainment of a certain age,
and so forth, but the Secretary asserts that apart from
those cases there were 515,189 terminations that would
have been affected by the requirement of a prior hearing.
That number, however, includes terminations based upon
a student's leaving school, a change in a beneficiary's marital
status, and the death or adoption of a child. Without
those cases, the number drops to 186,035. Moreover,
even this number includes disability terminations and
the terminations of dependents based thereon. Putting
aside those cases, the total appears to be somewhat closer
to 100,000. While that is a substantial number of terminations,
the Secretary does not indicate what issues are
involved in making the decisions. As noted above, prior
evidentiary hearings are necessary in disability cases
because factual disputes exist. They may exist to a far
lesser extent in other programs. Moreover, to whatever
extent they do exist, the objections to the Secretary's
inflated cost figure for disability terminations would seem
to apply equally to nondisability terminations. In any
event, the Secretary has simply provided the bare number
of terminations, with no further information, and it
RICHARDSON v. WRIGHT 227
208 BRENN AN, J ., dissenting
is inappropriate, if not impossible, to decide what effect
requiring prior hearings in disability cases will have on
nondisability cases.
I do not deny that prior hearings will entail some additional
administrative burdens and expense. Administrative
fairness usually does. But the Secretary "is not
without weapons to minimize these increased costs."
Goldberg v. Kelly, 397 U. S., at 266. Despite the Secretary's
protestations to the contrary, I believe that in
the disability, as in the welfare, area "[m]uch of the
drain on fiscal and administrative resources can be reduced
by developing procedures for prompt pretermination
hearings and by skillful use of penmnnel
and facilities." Ibid. The Court's conclusion on this
point in Goldberg is fully applicable here:
"Indeed, the Very provision for a post-termination
evidentiary hearing . . . is itself cogent evidence
that the State recognizes the primacy of the public
interest in correct eligibility determinations and
therefore in the provision of procedural safeguards.
Thus, the interest of the eligible recipient in uninterrupted
receipt of public assistance, coupled with
the State's interest that his payments not be erroneously
terminated, clearly outweighs the State's
competing concern to prevent any increase in its
fiscal and administrative burdens." Ibid.
My answers to the Secretary's contentions are also the
reasons I disagree with the majority of the District Court
and agree with the dissenting judge. I would therefore
vacate the judgment of the District Court and remand
with direction to enter a new judgment requiring that
disability benefits not be discontinued until the beneficiary
has been afforded procedural due process in the
form mandated by Goldberg with respect to discontinuance
of welfare and old-age benefits.
228 OCTOBER TERM, 1971
Per Curiam 405 U.S.
IOWA BEEF PACKERS, INC. v. THOMPSON ET AL.
CERTIORARI TO THE SUPREME COURT OF IOWA
No. 70-286. Argued January 12, 1972-Decided February 29, 1972
Court's grant of certiorari to decide whether employees may sue for
overtime allegedly withheld in violation of the Fair Labor Standards
Act if the complaint of that violation was al.so subject to
grievance and arbitration provisions of a collective-bargaining
agreement held improvidfntiy granted in view of subsequent disclosure
that those provisions did not apply to all disputes, but
merely those based on violations of the agreement.
185 N. W. 2d 738, certiorari dismissed as improvidently granted.
Louis S. Goldberg argued the cause for petitioner.
With him on the brief was P. L. Nymann.
Raymond Edward Franck argued the cause and filed
a brief for respondents.
A. Raymond Randolph, Jr., argued the cause pro hac
vice for the United States as am-icus curiae urging affirmance.
With him on the. brief were Solicitor General
Griswold and Richard F. Schubert.
PER CuRIAM.
Respondents brought this suit in an Iowa District Court
under § 16 (b) of the Fair Labor Standards Act, 52 Stat.
1069, as amended, 29 U.S. C. § 216 (b), to recover overtime
compensation allegedly not paid by their petitioner
employer in violation of the overtime provisions of the
Act, 29 U. S. C. § 207 (a) ( 1). The District Court denied
petitioner's motion to dismiss the action for failure of respondents
to exhaust the grievance arbitration procedures
provided in a collective-bargaining agreement between
petitioner and respondents' union and awarded
respondents the overtime claimed plus costs and attorneys'
fees. The Supreme Court of Iowa affirmed, 185
IOWA BEEF PACKERS, INC. v. THOMPSON 229
228 Per Curiam
N. W. 2d 738 (1971). We granted certiorari, 404 U. S.
820 (1971).
The collective-bargaining agreement required petitioner
to provide a lunch period for each employee no later
than five hours from the start of an employee's shift.
Petitioner provided the lunch period but required the employees
to remain on call during the period. Respondents
did not choose, as perhaps under the contract was open
to them, to make the requirement the basis of a grievance
for alleged violation either of the lunch-period provision
or of the hours-of-work provision, Art. VII, requiring
time and one-half for hours worked over eight in any day
or 40 in any week. They. claimed instead that, because
of the requirement, the Fair Labor Standards Act, as a
matter of law, rendered the lunch period "work" time,
whether or not actually worked, for the purpose of determining
whether petitioner violated its statutory obligation
to pay overtime rates for work hours over 40 in any
work week. See Armour & Co. v. Wantock, 323 U. S. 126
( 1944). The grievance th us pertained not to an alleged
violation of the agreement but to an alleged violation
of the Fair Labor Standards Act.
In U. S. Bulk Carriers v. Arguelles, 400 U. S. 351
( 1971), the Court held that a seaman could sue in federal
court for wages under 46 U.S. C. § 596 without invoking
grievance and arbitration procedures under a collectivebargaining
agreement that provided for resolution of all
disputes and grievances, not merely those based on alleged
violations of the contract. We granted certiorari
in this case to decide whether, similarly, employees may
sue in court to recover overtime allegedly withheld in
violation of the Fair Labor Standards Act, if their complaint
of alleged statutory violation is also subject to resolution
under grievance and arbitration provisions of a
collective-bargaining agreement. It developed at oral
argument, however, that the grievance and arbitration
230 OCTOBER TERM, 1971
DouGLAS, J., dissenting 405 U.S.
prov1s10ns, Art. XX of the collective-bargaining agreement
involved in this case, do not have the broad scope of
the procedures in Arguelles, but apply only to grievances
"pertaining to a violation of the Agreement." Moreover,
the issues as presented by petitioner provide no occasion
to address, and we intimate no view upon, the question
whether, although the statutory claim is not subject to
contract arbitration, pursuit of the statutory remedy is
nevertheless barred because respondents might have made
the requirement to be on call the basis of a grievance
for alleged violation of the lunch period or overtime
provision of the collective-bargaining agreement. In
these circumstances, which were not fully apprehended
at the time certiorari was granted, the writ of certiorari
will be dismissed as improvidently granted. The Monrosa
v. Carbon Black, Inc., 359 U. S. 180, 183 (1959).
It is so ordered.
MR. JUSTICE DOUGLAS, dissenting.
The arbitration clause in this collective agreement
reaches "a grievance pertaining to a violation of the
Agreement." The agreement covered both the lunch
period 1 and overtime.2
The Iowa Supreme Court held that "[t]he present controversy
is undoubtedly arbitrable" under the collective
agreement. Given the presumption favoring liberal construction
of arbitration clauses, Steelwoi·kers v. Warrior
& Gulf Co., 363 U. S. 574, 582-583, we should defer to
1 Article XIV, § 1, states:
"A lunch period shall be provided no later than five (5) hours from
the start of an employee's shift, except when the shift does not exceed
five and one-half (5½) hours." '
2 Article VII, § 3, states:
"Time and one-half (I½) will be paid for hours worked in excess
of eight (8) in any day. Time and one-half (l½) will be paid for
all hours worked in excess of forty ( 40) in any one week."
IOWA BEEF PACKERS, INC. v. THOMPSON 231
228 DouGLAS, J., dissenting
that ruling. Even under that construction, it seems that
a suit for overtime allegedly withheld in violation of the
Fair Labor Standards Act, 29 U. S. C. § 207 (a)(l) is
maintainable. That would mean affirming the Iowa
Supreme Court. U. S. Bulk Carriers v. Arguelles, 400
U. S. 351, which kept the courthouse door open, would
seem to control this case.3
An affirmance would follow, a fortiori, if this collective
agreement be construed as not requiring arbitration
of this FLSA claim. For then it would seem
that the worker would have a choice to sue under the
statute or to proceed to arbitration on his contractual
claim arising out of the same dispute.
The petition, however, is not dismissed for those reasons
but for a wholly different one. It is said that
there was a requirement to be "on call" and that that
duty conflicted with the lunch or overtime provisions of
the agreement. The clifficulty is twofold: there was no
"on call" grievance ever tendered so far as the record
3 The Iowa Supreme Court properly stated:
"We doubt that the general Congressional intent favoring arbitration
can stand against the specific Congressional intent which is
manifest in the Fair Labor Standards Act provisions giving employees
strong and detailed rights in court. We think Congress
intended that workmen should have free access to the courts in FLSA
cases. We are the more persuaded of that view by the broad Congressional
policy expressed in § 2 of FLSA, 29 U. S. C. A. § 202.
There the objectives of the act are set forth, and those objectives
encompass more than simply wage relief for employees; they include
broad economic considerations-improvement in r,nmmPmP among
the states. The remedies provided by the act are part of the Congressional
scheme to obtain employer compliance with the act and
hence achievement of those broader objectives. We believe that if
Congressional intent to allow a seaman to arbitrate or sue at his
option is manifest in the seaman's act involved in Arguelles, as the
Court held there, then an intent to give workmen such an option is
also manifest in the Fair Labor Standards Act." 185 N. W. 2d 738,
742.
232 OCTOBER TERM, 1971
DOUGLAS, J., dissenting 405 U.S.
shows; moreover, the agreement concededly does not
cover any "on call" requirement or duty. So there
is no conflict between statutory remedy and remedy
by arbitration and the difficulty posed is imaginary.
We should "dismiss as improvidently granted" only
in exceptional situations and where all nine members of
the Court agree. In all other cases the merits of the
controversy should be decided. The present case on its
facts is simple and uncomplicated; and a decision on the
merits is apparently important to unions and employer
alike.
FTC v. SPERRY & HUTCHINSON CO. 233
Syllabus
FEDERAL TRADE COMMISSION v. SPERRY &
HUTCHINSON CO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 70--70. Argued November 15, 1971-Decided March 1, 1972
The Federal Trade Commission (FTC) entered a cease-and-desist
order against Sperry & Hutchinson Co. (S&H), the largest and
oldest trading stamp company, on the ground that it unfairly
attempted to suppress the operation of trading stamp exchanges
and other "free and open" redemption of stamps. S&H argued
in the Court of Appeals that its conduct was beyond the reach
of § 5 of the Federal Trade Commission Act, which it claimed
permitted the FTC to restrain only such practices as are either
in violation of the antitrust laws, deceptive, or repugnant to public
morals. The Court of Appeals reversed the FTC, holding that
the FTC had not demonstrated that S&H's conduct violated § 5
because it had not shown that the conduct contravened either
the letter or the spirit of the antitrust. laws. Held:
I. The Court of Appeals erred in its construction of § 5. Congress,
as previously recognized by this Court, see FTC v. R. F.
Keppel & Bro., 291 U. S. 304, defines the powers of the FTC
to protect consumers as well as competitors and authorizes it to
determine whether challenged practices, though posing no threat
to competition within the letter or spirit of the antitrust laws,
are nevertheless either unfair methods of competition, or unfair
or deceptive acts or practices. The Wheeler-Lea Act of 1938
reaffirms this broad congressional mandate. Pp. 239-244.
2. Nonetheless the FTC's order cannot be sustained. The FTC
does not challenge the Court of Appeals' holding that S&H's conduct
violates neither the letter nor the spirit of the antitrust
laws and its opinion is barren of any attempt to rest its order
on the unfairness of particular competitive practices or on considerations
of consumer interests. Nor did the FTC articulate
any standards by which such alternative assessments might be
made. Pp. 245-249.
3. The judgment of the Court of Appeals setting aside the
FTC's order is affirmed, but because that court erred in its construction
of § 5, its judgment is modified to the extent that the
case is remanded with instructions to return it to the FTC for
234 OCTOBER TERM, 1971
Opinion of the Court 405 U. S.
further proceedings not inconsistent with this opinion. Pp. 249-
250.
432 F. 2d 146, modified and remanded.
WHITE, J ., delivered the opinion of the Court, in which all
:\-Iembers joined except POWELL and REHNQUIST, JJ., who took no
part in the consideration or decision of the case.
Assistant Attorney General McLaren argued the cause
for petitioner. With him on the briefs were Solicitor
General Griswold, Harold D. Rhynedance, Jr., Karl H.
Buschmann, and Richard H. Stern.
Harold L. Russell argued the cause for respondent.
With him on the brief were Samuel K. Abrams, Cums
Motulsky, J. Sam J,Vinters, Alan R. Wentzel, and
Wayne T. Elliott.
MR. JUSTICE WHITE delivered the opinion of the
Court.
In June 1968 the Federal Trade Commission held
that the largest and oldest company in the trading stamp
industry,1 Sperry & Hutchinson (S&H), was violating
§ 5 of the Federal Trade Commission Act, 38 Stat. 719,
as amended, 15 U.S. C. §45(a)(l), in three respects.
The Commission found that S&H improperly regulated
the maximum rate at which trading stamps were dispensed
by its retail licensees; that it combined with
others to regulate the rate of stamp dispensation
throughout the industry; and that it attempted ( almost
invariably successfully) to suppress the operation of
trading stamp exchanges and other "free and open"
redemption of stamps. The Commission entered ceaseand-
desist orders accordingly.
1 On the nature of the industry, see generally Comm Ant., Trading
Stamps, 37 N. Y. U. L. Rev. 1090 ( 1962). The Commission proceedings
in the instant case are discussed in Comment, The Attack
on Trading Stamps-An Expanded Use of Section 5 of the Federal
Trade Commission Act, 57 Geo. L. J. 1082 (1969).
FTC v. SPERRY & HUTCHINSON CO. 235
233 Opinion of the Cour~
S&H appealed only the third of these orders. Before
the Court of Appeals for the Fifth Circuit it conceded
that it acted as the Commission found, but argued that
its conduct is beyond the reach of § 5 of the Act. That
section provides, in pertinent part, that:
"The Commission is empowered and directed to
prevent persons, partnerships, or corporations ...
from using unfair methods of competition in commerce
and unfair or deceptive acts or practices in
commerce." 15 U. S. C. § 45 (a) (6).
As S&H sees it, § 5 empowers the Commission to restrain
only such practices as are either in violation
of the antitrust laws, deceptive, or repugnant to public
morals. In S&H's view, its practice of successfully
prosecuting stamp exchanges in state and federal courts
cannot be restrained under any of these theories.
The Court of Appeals for the Fifth Circuit agreed
and reversed the Commission, Judge Wisdom dissenting.
432 F. 2d 146 (1970). In the lower court's view:
"To be the type of practice that the Commission
has the power to declare 'unfair' the act complained
of must fall within one of the following
types of violations: ( 1) a per se violation of antitrust
policy; (2) a violation of the letter of either
the Sherman, Clayton, or Robinson-Patman Acts;
or (3) a violation of the spirit of these Acts as
recognized by the Supreme Court of the United
States." Id., at 150 (footnote omitted).
Holding that the FTC had not demonstrated that S&H's
conduct violated either the letter or the spirit of the
antitrust laws, the Court of Appeals vacated the Commission's
order.
The FTC petitioned for review in this Court. We
granted certiorari to determine the questions presented
in the petition. 401 U. S. 992 (1971).
236 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
I
The Challenged Conduct
S&H has been issuing trading stamps-small pieces
of gummed paper about the size of postage stampssince
1896. In 1964, the year from which data in this
litigation are derived, the company had about 40% of
the business in an industry that annually issued 400
billion stamps to more than 200,000 retail establishments
for distribution in connection with retail sales of some
40 billion dollars. In 1964, more than 60% of all
American consumers saved S&H Green Stamps.
In the normal course, the trading stamp business
operates as follows. S&H sells its stamps to retailers,
primarily to supermarkets and · gas stations, at a cost
of about S2.65 per 1200 stamps; retailers give the stamps
to consumers ( typically at a rate of one for each 10¢
worth of purchases) as a bonus for their patronage;
consumers paste the stamps in books of 1,200 and exchange
the books for "gifts" at any of 850 S&H Redemption
Centers maintained around the country.
Each book typically buys between 82.86 and $3.31 worth
of merchandise depending on the location of the redemption
center and type of goods purchased. Since its
development of this cycle 75 years ago, S&II has sold
over one trillion stamps and redeemed approximately
86% of them.
A cluster of factors relevant to this litigation tends
to disrupt this cycle and, in S&H's view, to threaten
its business. An incomplete book has no redemption
value. Even a complete book is of limited value because
most "gifts" may be obtained only on submission
of more than one book. For these reasons a collector
of another type of stamps who has acquired a small
number of green stamps may benefit by exchanging
FTC v. SPERRY & HUTCHINSON CO. 237
233 Opinion of the Court
with a green stamp collector who has opposite holdings
and preferences. Similarly, because of the seasonal usefulness
or immediate utility 2 of an object sought, a
collector may want to buy stamps outright and thus
put himself in a position to secure redemption merchandise
immediately though it is "priced" beyond his
current stamp holdings. Or a collector may seek to
sell his stamps in order to use the resulting cash to
make more basic purchases (food, shoes, etc.) than
redemption centers normally provide.
Periodically over the past 70 years professional exchanges
have arisen to service this demand. Motivated
by the prospect of profit realizable as a result of serving
as middlemen in swaps, the exchanges will sell books
of S&H stamps previously acquired from consumers,
or, for a fee, will give a consumer another company's
stamps for S&H's or vice versa. Further, some regular
merchants have offered discounts on their own goods
in return for S&H stamps. Retailers do this as a means
of competing with merchants in the area who issue
stamps. By offering a price break in return for stamps,
the redeeming merchant replaces the incentive to return
to the issuing merchant ( to secure more stamps so as
to be able to obtain a gift at a redemption center) with
the attraction of securing immediate benefit from the
stamps by exchanging them for a discount at his store.3
S&H fears these activities because they are believed
to reduce consumer proclivity to return to green-stampissuing
stores and thus lower a store's incentive to
buy and distribute stamps. The company attempts to
pre-empt "trafficking" in its stamps by contractual pro-
2 Often merchandise obtained by redemption is used as a gift.
3 The efforts of some retailers to reissue S&H stamps are not involved
in this case. The FTC explicitly left S&H free to seek injunctions
against reissuance. 1 App. 169.
238 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
visions reflected in a notice on the inside cover of every
S&H stamp book. The notice reads:
"Neither the stamps nor the books are sold to
merchants, collectors or any other persons, at all
times the title thereto being expressly reserved in
the Company . . . . The stamps are issued to you
as evidence of cash payment to the merchants issuing
the same. The only right which you acquire
in said stamps is to paste them in books like this
and present them to us for redemption. You must
not dispose of them or make any further use of them
without our consent in writing. We will in every
case where application is made to us give you permission
to turn over ·your stamps to any other
bona-fide collector of S&H Green . . . Stamps;
but if the stamps or the books are transferred
without our consent, we reserve the right to restrain
their use by, or take them from other parties. It
is to your interest that you fill the book, and personally
derive the benefits and advantages of redeeming
it." (Reproduced at 2 App. 230.)
S&H makes no effort to enforce this condition when
consumers casually exchange stamps with each other,
though reportedly some 20% of all the company's stamps
change hands in this manner. But S&H vigorously
moves against unauthorized commercial exchanges and
redeemers. Between 1957 and 1965, by its own account
the company filed for 43 injunctions against merchants
who redeemed or exchanged its stamps without authorization,
and it sent letters threatening legal action
to 140 stamp exchanges and 175 businesses that redeemed
S&H stamps. In almost all instances the threat
or the reality of suit forced the businessmen to abandon
their unauthorized practices.
FTC v. SPERRY & HUTCHINSON CO. 239
233 Opinion of the Court
II
The Reach of Section 5
The Commission presented two questions in its petition
for certiorari, the first being " [ w] hether Section 5
of the Federal Trade Commission Act, which directs
the Commission to prevent 'unfair methods of competition
... and unfair or deceptive acts or practices,' is
limited to conduct which violates the letter or spirit
of the antitrust laws." The other issue relates to the
significance of state cour.t holdings that the practices
challenged here are lawful:' :N" either question requests
review of the Court of Appeals' decision that the business
conduct proscribed by the Commission violates
neither the letter nor spirit of the antitrust laws. Accordingly,
we intimate no opinion on that issue and
turn to the question of the reach of § 5.
In reality, the question is a double one: First, does
§ 5 empower the Commission to define and proscribe
an unfair competitive practice, even though the
practice does not infringe either the letter or the spirit
of the antitrust laws? Second, does § 5 empower
the Commission to proscribe practices as unfair or deceptive
in their effect upon consumers regardless of their
nature or quality as competitive practices or their effect
on competition? We think the statute, its legislative
history, and prior cases compel an affirmative answer
to both questions.
When Congress created the Federal Trade Commission
in 1914 and charted its power and responsibility
4 Though the Court of Appeals referred to state and federal court
decisions that approved S&H's practice, our reading of its opinion
leaves no doubt that it did not reverse the FTC order on the erroneous
theory that such determinations might foreclose a contrary FTC
§ 5 decision. We therefore put aside the Goverment's second question
as irrelevant and focus on its first contention.
240 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
under § 5, it explicitly considered, and rejected, the
notion that it reduce the ambiguity of the phrase "unfair
methods of competition" by tying the concept of
unfairness to a common-law or statutory standard or
by enumerating the particular practices to which it
was intended to apply. Senate Report No. 597, 63d
Cong., 2d Sess., 13 (1914), presents the reasoning that
led the Senate Committee to avoid the temptations of
precision when framing the Trade Commission Act:
"The committee gave careful_c onsideration to the
question as to whether it would attempt to define
the many and variable unfair practices which prevail
in commerce and to forbid their continuance
or whether it would, by a general declaration condemning
unfair practices, leave it to the commission
to determine what practices were unfair. It
concluded that the latter course would be the better,
for the reason, as stated by one of the representatives
of the Illinois Manufacturers' Association, that
there were too many unfair practices to define, and
after writing 20 of them into the law it would
be quite possible to invent others."
The House Conference Report was no less explicit.
"It is impossible to frame definitions which embrace
all unfair practices. There is no limit to human inventiveness
in this field. Even if all known unfair
practices were specifically defined and prohibited, it
would be at once necessary to begin over again. If
Congress were to adopt the method of definition, it
would undertake an endless task." H. R. Conf. Rep.
No. 1142, 63d Cong., 2d Sess., 19 ( 1914). See also
Rublee, The Original Plan and Early History of the
Federal Trade Commission, 11 Acad. Pol. Sci. Proc. 666,
667 (1926); Baker & Baum, Section 5 of the Federal
Trade Commission Act: A Continuing Process of Redefinition,
7 Vill. L. Rev. 517 (1962).
FTC v. SPERRY & HUTCHINSON CO. 241
233 Opinion of the Court
Since the sweep and flexibility of this approach were
thus made crystal clear, there have twice been judicial
attempts to fence in the grounds upon which the FTC
might rest a finding of unfairness. In FTC v. Gratz,
253 U. S. 421 (1920), the Court over the strong dissent
of Mr. Justice Brandeis ( who had been involved in
drafting the Trade Commission Act), wrote that while
the "exact meaning" of the phrase " 'unfair method of
competition' ... is in dispute," the only practices that
were subject to this characterization were those that
were "heretofore regarded as opposed to good morals because
characterized by deception, bad faith, fraud or
oppression, or as against public policy because of their
dangerous tendency unduly to hinder competition or
create monopoly." Id., at 427. This view was reiterated
in other opinions over the next decade. See, e. g.,
FTC v. Curtis Publishing Co., 260 U. S. 568 ( 1923), and
FTC v. Sinclair Refining Co., 261 U. S. 463, 475-476
(1923). The opinion of the Court of Appeals' majority,
citing Sinclair in support of its narrow view of the
FTC's leeway, is in the tradition of these authorities.
In FTC v. Raladam Co., 283 U. S. 643 (1931), a
unanimous Court held that: "The paramount aim of the
act is the protection of the public from the evils likely
to result from the destruction of competition or the
restriction of it in a substantial degree . . . . Unfair trade
methods are not per se unfair methods of competition."
( Italics in original.) "It is obvious," the Court
continued,
"that the word 'competition' imports the existence
of present or potential competitors, and the unfair
methods must be such as injuriously affect or tend
thus to affect the business of these competitors~
that is to say, the trader whose methods are assailed
as unfair must have present or potential rivals in
trade whose business will be, or is likely to be,
242 OCTOBER TERM, 1971
Opinion of the Court 405U.S.
lessened or otherwise injured. It is that condition
of affairs which the Commission is given power to
correct, and it is against that condition of a:ff airs,
and not some other, that the Commission is authorized
to protect the public. . . . If broader powers
be desirable they must be conferred by Congress."
Id., at 647-649.
Neither of these limiting interpretations survives to
buttress the Court of Appeals' view of the instant case.
Even if the first line of cases, Gratz and its progeny,
stood unimpaired, their defere.nce to action taken to
constrain "deception, bad faith, fraud or oppression"
would grant the FTC greater power to set right what
it perceives as wrong than the panel of the Court of
Appeals acknowledges. But frequent opportunity for
reconsideration has consistently and emphatically led
this Court to the view that the perspective of Gratz
is too confined. As we recently unanimously observed:
"Later cases of this Court ... have rejected the Gratz
view and it is now recognized in line with the dissent
of Mr. Justice Brandeis in Gratz that the Commission
has broad powers to declare trade practices unfair."
FTC v. Brown Shoe Co., 384 U. S. 316, 320-321 (1966).
The leading case that recognized a role for the FTC
beyond that mapped out in Gratz, FTC v. R. F.
Keppel & Bro., Inc., 291 U.S. 304 (1934), also brought
Raladam into question; on both counts it sets the standard
by which the range of FTC jurisdiction is to be
measured today. Keppel & Brothers sold penny candies
in "break and take" packs, a form of merchandising
that induced children to buy lesser amounts of
concededly inferior candy in the hope of by luck hitting
on bonus packs containing extra candy and prizes.
The FTC issued a cease-and-desist order under § 5 on
the theory that the popular marketing scheme conFTC
v. SPERRY & HUTCHINSON CO. 243
233 Opinion of the Court
travened public policy insofar as it tempted children
to gamble and compelled those who would successfully
compete with Keppel to abandon their scruples by similarly
tempting children.
The Court had no difficulty in sustaining the FTC's
conclusion that the practice was "unfair," though any
competitor could maintain his position simply by adopting
the challenged practice. "[H] ere," the Court said,
"the competitive method is shown to exploit consumers,
children, who are unable to protect themselves... . [I]t
is clear that the practice is of the sort which the common
law and criminal statutes have long deemed contrary
to public policy." Id., at 313.
En route to this result the Court met Keppel's arguments
that, absent an antitrust violation or at least
incipient injury to competitors, Gratz and Raladam so
straitjacketed the FTC that the Commission could not
issue a cease-and-desist order proscribing even an immoral
practice. It held:
"Neither the language nor the history of the Act
suggests that Congress intended to confine the forbidden
methods to fixed and unyielding categories.
The common law afforded a definition of unfair
competition and, before the enactment of the Federal
Trade Commission Act, the Sherman Act had
laid its inhibition upon combinations to restrain
or monopolize interstate commerce which the courts
had construed to include restraints upon competition
in interstate commerce. It would not have
been a difficult feat of draftsmanship to have restricted
the operation of the Trade Commission
Act to those methods of competition in interstate
commerce which are forbidden at common law or
which are likely to grow into violations of the Sherman
Act, if that had been the purpose of the legislation."
Id., at 310.
244 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Thenceforth, unfair competitive practices were not
limited to those likely to have anticompetitive consequences
after the manner of the antitrust laws; nor
were unfair practices in commerce confined to purely
competitive behavior.
The perspective of Keppel, displacing that of Raladam,
was legislatively confirmed when Congress
adopted the 1938 Wheeler-Lea amendment, 52 Stat.
111, to § 5. The amendment added the phrase "unfair
or deceptive acts or practices" to the section's original
ban on "unfair methods of competition" and thus made
it clear that Congress, through § 5, charged the FTC
with protecting consumers as well as competitors. The
House Report on the. amendment summarized congressional
thinking: "[T]his amendment makes the
consumer, who may be injured by an unfair trade practice,
of equal concern, before the law, with the merchant
or manufacturer injured by the unfair methods of a
dishonest competitor." H. R. Rep. No. 1613, 75th Cong.,
1st Sess., 3 (1937). See also S. Rep. No. 1705, 74th
Cong., 2d Sess., 2-3 (1936).
Thus, legislative and judicial authorities alike convince
us that the Federal Trade Commission does not
arrogate excessive power to itself if, in measuring a
practice against the elusive, but congressionally mandated
standard of fairness, it, like a court of equity,
considers public values beyond simply those enshrined
in the letter or encompassed in the spirit of the antitrust
laws.5
5 The Commission has described the factors it considers in determining
whether a practice that is neither in violation of the antitrust
laws nor deceptive is nonetheless unfair:
"(1) whether the practice, without necessarily having been previously
considered unlawful, offends public policy as it has been
established by statutes, the common law, or otherwise--whether, in
other words, it is within at least the penumbra of some common-law,
FTC v. SPERRY & HUTCHINSON CO. 245
233 Opinion of the Court
III
The general conclusion just enunciated requires us
to hold that the Court of Appeals erred in its construction
of § 5 of the Federal Trade Commission Act. Ordinarily
we would simply reverse the judgment of the
Court of Appeals insofar as it limited the unfair practices
proscribed by § 5 to those contrary to the letter
and spirit of the antitrust laws and we would remand the
case for consideration of whether the challenged practices,
though posing .no threat to competition within the precepts
of the antitrust laws, are nevertheless either
(1) unfair methods of competition or (2) unfair or deceptive
acts or practices.
What we deem to be proper concerns about the
interaction of administrative agencies and the courts,
however, counsels another course in this case. In this
Court the Commission argues that, however correct
the Court of Appeals may be in holding the challenged
S&H practices beyond the reach of the letter or spirit
of the antitrust laws, the Court of Appeals nevertheless
statutory, or other established concept of unfairness; (2) whether
it is immoral, unethical, oppressive, or unscrupulous; (3) whether
it causes substantial injury to conswners (or competitors or other
businessmen)." Statement of Basis and Purpose of Trade Regulation
Rule 408, Unfair or Deceptive Advertising and Labeling of
Cigarettes in Relation to the Health Hazards of Smoking. 29 Fed.
Reg. 8355 (1964).
S&H argues that a later portion of this statement P.ommitR the FTC
to the view that misconduct in respect of the third of these criteria
is not subject to constraint as "unfair" absent a concomitant
showing of misconduct according to the first or second of these
criteria. But all the ITC said in the statement referred to was that
"[t]he wide variety of decisions interpreting the elusive concept of
unfairness at least makes clear tha.t a method of selling violates
Section 5 if it is exploitive or inequitable and if, in addition to
being morally objectionable, it is seriously detrimental to consumers
or others." Ibid. (emphasis added).
246 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
erred in a.sserting that the FTC could mea.sure and ban
conduct only according to such narrow criteria. Proceeding
from this premise, with which we agree, the
Commission's major submission is that its order is sustainable
as a proper exercise of its power to proscribe
practices unfair to consumers. Its minor position is
that it also properly found S&H's practices to be unfair
competitive methods apart from their propriety under
the antitrust laws.
The difficulty with the Commission's position is that
we must look to its opinion, not to the arguments of
its counsel, for the -underpinnings of its order. "Congress
has delegated to the administrative official and
not to appellate counsel the responsibility for elaborating
and enforcing statutory commands." Investment Co.
Institute v. Camp, 401 U.S. 617,628 (1971). We cannot
read the FTC opinion on which the challenged order
rests as premised on anything other than the classic
antitrust rationale of restraint of trade and injury to
com petition.
The Commission urges reversal of the Court of Appeals
and approval of its own order because, in its words,
"[t]he Act gives the Commission comprehensive power
to prevent trade practices which are deceptive or
unfair to consumers, regardless of whether they also are
anticompetitive." Brief for the FTC 15. It says
the Court of Appeals was "wrong in two ways: you can
have an anticompetitive impact that is not a violation
of the antitrust laws and violate Section 5. You can
also have an impact upon consumers without regard to
competition and you can uphold a Section 5 violation on
that ground." Tr. of Oral Arg. 18. Though completely
accurate, these statements cannot be squared with the
Commission's holding that "[i]t is essential in this matter,
we believe, and as we have heretofore indicated, to
determine whether or not there has been or may be an
FTC v. SPERRY & HUTCHINSON CO. 247
233 Opinion of the Court
impairment of competition," Opinion of Commission,
1 App. 175; its conclusion that "[r]espondent ... prevents
... competitive reaction[s] and thereby it has
restrained trade. We believe this is an unfair method
of competition and an unfair act and practice in violation
of Section 5 of the Federal Trade Commission Act
and so hold," 1 App. 178; its observation that:
"Respondent's individual acts and its acts with
others taken to suppress trading stamp exchanges
and other stamp redemption activity are all part of
a clearly aefined restrictive policy pursued by the
respondent. In the circumstances surrounding this
particular practice it is difficult to wholly separate
the individual acts from the collective acts for the
purpose of making an analysis of the consequences
under the antitrust laws." 1 App. 179;
and like statements throughout the opinion, see, e. g.,
1 App. 176-178, passim.
There is no indication in the Commission's opinion
that it found S&H's conduct to be unfair in its effect on
competitors because of considerations other than those
at the root of the antitrust laws.6 For its part, the
6 The Commission did explicitly decline to assess S&H's conduct
in light of one leading antitrust case. In United States v. Arnold,
Schwinn & Go., 388 U. S. 365, 379 (1967), this Court held that:
"Under the Sherman Act, it is unreasonable without more for a
manufacturer to seek to restrict and confine areas or persons with
whom an article may be traded after the manufacturer has parted
with dominion over it. White Motor [v. United States, 372 U. S.
253 (1963)]; Dr. Miles [Medical Go. v. Park & Sons Go., 220
U. S. 373 (1911)]. Such restraints are so obviously destructive of
competition that their mere existence is enough. If the manufacturer
parts with dominion over his product or transfers risk of loss to
another, he may not reserve control over its destiny or the conditions
of its resale."
Arguably, S&H's practice is proscribed by this doctrine. When
the FTC declined to rely on this precedent, however, it did so not
248 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
theory that the FTC's decision is derived from its concern
for consumers finds support in only one line of the
Commission's opinion. The Commission's observation
that S&H's conduct limited "stamp collecting consumers'
... freedom of choice in the disposition of trading
stamps," 1 App. 176, will not alone support a conclusion
that the FTC has found S&H guilty of unfair practices
because of damage to consumers.
Arguably, the Commission's findings, in contrast to its
opinion, go beyond concern with competition and address
themselves to noncompetitive and consumer injury as
well. It may also be that such findings would have
evidentiary support in the record. But even if the findings
were considered to be adequate foundation for an
opinion and order resting on unfair consequences to
consumer interests, they still fail to sustain the Commission
action; for the Commission has not rendered an
opinion which, by the route suggested, links its findings
and its conclusions. The opinion is barren of any attempt
to rest the order on its assessment of particular
competitive practices or considerations of consumer interests
independent of possible or actual effects on competition.
Nor were any standards for doing so referred
to or developed.
to turn to considerations other than those embedded in the antitrust
laws, but instead to look for considera.tions less "technical"
and more deeply rooted in antitrust policy:
"We do not believe it appropriate to decide the broad competitive
questions presented in this record on the narrow and technical basis
of a restraint on alienation. The circumstances here are much different
from that where products are transferred to a dealer for
resale. They are complicated by the nature of the trading stamp
scheme. It is essential in this matter, we believe, and as we have
heretofore indicated, to determine whether or not there has been
or may be an impairment of competition. Thus, we intend to look
at the substance of the allegedly illegal practice rather than to decide
the case by application of a technical formula." 1 App. 175-176.
FTC v. SPERRY & HUTCHINSON CO. 249
233 Opinion of the Court
Our view is that "the considerations urged here in
support of the Commission's order were not those upon
which its action was based." SEC v. Chenery Corp., 318
U. S. 80, 92 (1943). At the lea.st the Commission has
failed to "articulate any rational connection between the
facts found and the choice made." Burlington Truck
Lines v. United States, 371 U. S. 156, 168 (1962).
The Commission's action being flawed in this respect,
we cannot sustain its order. "[T)he orderly functioning
of the process of review requires that the grounds upon
which the administrative agency acted be clearly disclosed
and adequately sustained." Chenery, supra, at
94. Burlington Truck Lines, supra, at 169. A court
cannot label a practice "unfair" under 15 U. S. C. § 45
(a) (1). It can only affirm or vacate an agency's judgment
to that effect. "If an order is valid only as a
determination of policy or judgment which the agency
alone is authorized to make and which it .has not made,
a judicial judgment cannot be made to do service for an
administrative judgment." Chenery, supra, at 88. And
as was repeated on other occasions:
"For the courts to substitute their or counsel's discretion
for that of the Commission is incompatible
with the orderly functioning of the process of judicial
review. This is not to deprecate, but to vindicate
(see Phelps Dodge Corp. v. Labor Board, 313 U. S.
177, 197), the administrative process, for the purpose
of the rule is to avoid 'propel [ling] the court into
the domain which Congress has set aside exclusively
for the administrative agency.' 332 U. S., at 196."
Burlington Truck Lines, supra, at 169.
In these circumstances, because the Court of Appeals'
judgment that S&H's practices did not violate either the
letter or the spirit of the antitrust laws was not attacked
and remains undisturbed here, and because the Commis250
OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
sion's order could not properly be sustained on other
grounds, the judgment of the Court of Appeals setting
aside the Commission's order is affirmed. The Court of
Appeals erred, however, in its construction of § 5; had
it entertained the proper view of the reach of the section,
the preferable course would have been to remand the
case to the Commission for further proceedings. Chenery,
supra, at 95; Burlington, supra, at 174; FPC v.
United Gas Pipe Line Co., 393 U.S. 71 (1968). Accordingly,
the judgment of the Court of Appeals is modified
to this extent and the case is remanded to the Court of
Appeals with instructions to remand it to the Commission
for such further proceedings, not inconsistent with this
opinion, as may be appropriate.
So ordered.
MR. JUSTICE PowELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of this case.
HAWAII v. STANDARD OIL CO. 251
Syllabus
HAWAII v. STANDARD OIL CO. OF CALIFORNIA
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 70-49. Argued October 21, 1971-Decided March 1, 1972
Section 4 of the Clayton Act does not authorize a State to sue for
damages for an injury to its general economy allegedly attributable
to a violation of the antitrust laws. Pp. 257-266.
431 F. 2d 1282, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which BURGER,
C. J., and STEWART, WHITE, and BLACKMUN, JJ., joined. DouGLAS,
J., filed a dissenting opinion, post, p. 266. BRENNAN, J., filed a
dissenting opinion, in which DOUGLAS, J ., joined post, p. 270.
POWELL and REHNQUIST, JJ., took no part in the consideration or
decision of the case.
Maxwell M. Blecher argued the cause for petitioner.
With him on the briefs were Bertram Kanbara, Attorney
General of Hawaii, Hiromu Suzawa, Acting Attorney
General, George Pai, Deputy Attorney General, Joseph
L. Alioto, and Peter J. Donnici.
Franc-is R. Kirkham argued the cause for respondents.
With him on the brief were Richard J. MacLaury, Moses
Lasky, Malcolm T. Dungan, and William Simon.
Briefs of amici curiae urging reversal were filed by
Evelle J. Younger, Attorney General of California, and
Anthony C. Joseph, Robert Murphy, Herbert Davis,
Michael I. Spiegel, and Carole A. Kornblum, Deputy
Attorneys General, for the State of California, and by
the Attorneys General and other officials for their respective
States and jurisdictions as follows: William T.
Baxley, Attorney General of Alabama, Gary K. Nelson,
Attorney General of Arizona, Ray Thornton, Attorney
General of Arkansas, Duke W. Dunbar, Attorney General
of Colorado, Robert K. Killian, Attorney General
of Connecticut, W. Laird Stabler, Jr., Attorney General
252 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
of Delaware, Robert L. Shevin, Attorney General of
Florida, W. Anthony Park, Attorney General of Idaho,
William J. Scott, Attorney General of Illinois, Richard
C. Turner, Attorney General of Iowa, Vern Miller, Attorney
General of Kansas, John B. Breckinridge, Attorney
General of Kentucky, Jack P. F. Gremillion, Attorney
General of Louisiana, James S. Erwin, Attorney
General of Maine, Robert H. Quinn, Attorney General
of Massachusetts, Frank J. Kelley, Attorney General of
Michigan, Warren Spannaus, Attorney General of Minnesota,
John C. Danforth, Attorney General of Missouri,
Robert L. Woodahl, Attorney General of Montana,
Robert List, Attorney General of Nevada, Warren B.
Rudman, Attorney General of New Hampshire, George
F. Kugler, Jr., Attorney General of New Jersey, David
L. N orveU, Attorney General of New Mexico, Louis J.
Lefkowitz, Attorney General of New York, Helgi
Johanneson, Attorney General of North Dakota, William
J. Brown, Attorney General of Ohio, Larry Derryberry,
Attorney General of Oklahoma, Richard J. Israel, Attorney
General of Rhode Island, Gordon Mydland,
Attorney General of South Dakota, David M. Pack,
Attorney General of Tennessee, Crawford C. Martin,
Attorney General of Texas, Vernon B. Romney, Attorney
General of Utah, James M. Jeffords, Attorney General
of Vermont, Andrew P. Miller, Attorney General of
Virginia, Slade Gorton, Attorney General of Washington,
Chauncey H. Browning, Jr., Attorney General of West
Virginia, Robert W. Warren, Attorney General, and
George F. Sieker, Assistant Attorney General, of Wisconsin,
and J. Lee Rankin of the City of New York.
MR. JusTICE MARSHALL delivered the opinion of the
Court.
The issue presented by this case is whether § 4 of the
Clayton Act, 38 Stat. 731, 15 U. S. C. § 15, authorizes a
HAWAII v. STANDARD OIL CO. 253
251 Opinion of the Court
State to sue for damages for an injury to its economy
allegedly attributable to a violation of the antitrust laws
of the United States. \Ve hold that it does not.
I. PROCEDURAL HISTORY
Hawaii filed its initial complaint on April 1, 1968,
against three of the four respondents.1 On May 24,
1968, and again on August 19, 1968, Hawaii filed
amended complaints. The third amended complaint
filed on September 6, 1968, raised for the first time the
issue presented herein. That complaint named all four
respondents as defendants and charged them with violating
the Sherman Act, 26 Stat. 209, 15 U. S. C. § 1, in the
following ways: by entering into unlawful contracts; by
conspiring and combining to restrain trade and commerce
in the sale, marketing, and distribution of refined
petroleum products; and by attempting to monopolize and
actually monopolizing said trade and commerce.2 The
State sought to recover damages in three distinct capacities:
in its proprietary capacity for overcharges for
petroleum products sold to the State itself (first count);
as parens patriae for similar overcharges paid by the
citizens of the State (second count); and as the representative
of the class of all purchasers in Hawaii for
identical overcharges ( third count).
The second count read, in relevant part:
"18. The above-named plaintiff [Hawaii], [acts]
in its capacity as parens patriae, and/ or as trustee
1 Chevron Asphalt Co. was not named as a defendant in the
initial complaint. As pointed out in the text, infra, the company
was named as a defendant in the third and fourth amended complaints
which raise the question presented to the Court.
2 In the third amended complaint, the State abandoned a d::iim
made in the initial complaint that the Robinson-Patman Act, 49 Stat.
1526, 15 U. S. C. § 13 (a), had been violated. This claim has not
been resurrected in any of the later stages of the proceedings.
254 OCTOBER TERYl, 1971
Opinion of the Court 405 U.S.
for the use of its citizens who purchased refined
petroleum products, from any defendant or coconspirator
herein . . . .
"19. The unlawful contracts, combination, conspiracy
in restraint of trade, unlawful combination
and conspiracy to monopolize, and monopolization
have resulted in the plaintiff, ... and in its citizens,
paying more for refined petroleum products than
would have been paid in a freely operating competitive
market. Plaintiff has not yet ascertained the
precise extent of said damage to itself and its citizens,
however, when said amount has been ascertained,
plaintiff will ask leave of Court to insert said sum
herein."
Very similar language appeared in the class-action count.
In all three counts, the State sought both injunctive
and monetary relief.
After each of the respondents moved to dismiss the
second and third counts of the complaint, the District
Court held a hearing to determine the propriety of the
State's suing on behalf of its citizens. With respect to
count two, the court held that Hawaii "has not even
alleged an interest in its citizens' claims, much less interest
of its own aside from the State's proprietary rights,"
and granted the motions to dismiss.3 Viewing the class
action as being "overlapping, parallel and/ or alternative
to" the parens patriae claim, the court dismissed the third
count as well!
Hawaii filed its fourth amended complaint on February
27, 1969. This is the complaint with which we are
concerned. Count one contains a reiteration of Hawaii's
claim that in its proprietary capacity the State paid an
3 The opinion of the court is unreported, but is contained in App.
51-58.
4 Id., at 58.
HAWAII v. STANDARD OIL CO. 255
251 Opinion of the Court
excessive price for the petroleum products that it purchased
from respondents. Count two states a new
parens patriae claim, and count three is drawn as a
class action.
The parens patriae claim is stated in the following
manner:
"19. The State of Hawaii, acting through its Attorney
General, brings this action by virtue of its
duty to protect the general welfare of the State and
its citizens, acting herein as parens patriae, trustee,
guardian and representative of its citizens, to recover
damages for, and secure injunctive relief against, the
violations of the antitrust laws hereinbefore alleged.
"20. The unlawful contracts, combination and
conspiracy in restraint of trade, unlawful combination
and conspiracy to monopolize and monopolization,
hereinbefore al1eged, have injured and adversely
affected the economy and prosperity of the
State of Hawaii in, among others, the following
ways:
"(a) revenues of its citizens have been wrongfully
extracted from the State of Hawaii;
"(b) taxes affecting the citizens and commercial
entities have been increased to affect such losses of
revenues and income;
"(c) opportunity in manufacturing, shipping and
commerce have [ sic J been restricted and curtailed;
"(d) the full and complete utilization of the natural
wealth of the State has been prevented;
" ( e) the high cost of manufacture in Hawaii has
precluded goods made there from equal competitive
access with those of other States to the national
market;
"(f) measures taken by the State to promote the
general progress and welfare of its people have been
frustrated ;
256 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
"(g) the Hawaii economy has been held in a state
of arrested development.
"21. Plaintiff has not yet ascertained the precise
extent of said damage to itself and its citizens; however,
when said amount has been ascertained, plaintiff
will ask leave of Court to insert said sum herein."
The class-action count is similar to that in the third
amended complaint. As in the previous complaint,
Hawaii seeks both injunctive and monetary relief in each
count.
Respondents moved to dismiss the second and third
counts, and hearing was again had in the District Court.
The class action was dismissed by the court on the ground
that "under the circumstances . . . , the class action
based upon the injury to every individual purchaser of
gasoline in the State, ... in the context of the pleadings,
would be unmanageable." 5 In a rather extensive opinion,
the court examined the law that has developed concerning
suits by a State as parens patr-iae and denied the
motions to dismiss the second count. 301 F. Supp. 982
( 1969). Recognizing that the state of the law was unclear,
the District Court certified its decision denying
the motions to dismiss for an interlocutory appeal pursuant
to 28 U.S. C. § 1292 (b).6 On appeal, the United
States Court of Appeals for the Ninth Circuit reversed
the decision of the District Court and directed that the
second count of the complaint be dismissed.1 431 F. 2d
5 Reporter's Tr. 154 (May 29, 1969).
6 The District Court offered to certify its dismissal of Hawaii's
class-action count, but Hawaii indicated its intention not to appeal
the ruling. Since the ruling was not appealed it is not before the
Court for review.
7 Although the Court of Appeals directed that the count be
dismissed in its entirety, the parties have not suggested that its
decision foreclosed any relief the State might obtain by way of
injunction.
HAWAII v. STANDARD OIL CO. 257
251 Opinion of the Court
1282 (1970). Certiorari was granted so that we might
review this decision. 401 U.S. 936 (1971).
II. THE STATE AS PARENS PATRIAE
The concept of parens patriae is derived from the
English constitutional system. As the system developed
from its feudal beginnings, the King retained certain
duties and powers, which were referred to as the "royal
prerogative." Malina & Blechman, Parens Patriae Suits
for Treble Damages Under the Antitrust Laws, 65 Kw.
U. L. Rev. 193, 197 ( 1970) (hereinafter Malina & Blechman);
State Protection of its Economy and Environment:
Parens Patriae Suits for Damages, 6 Col. J. L. &
Soc. Prob. 411, 412 (1970) (hereinafter State Protection).
These powers and duties were said to be exercised
by the King in his capacity as "father of the country."
s Traditionally, the term wa.,s used to refer to the
King's power as guardian of persons under legal disabilities
to act for themselves.9 For example, Blackstone
refers to the sovereign or his representative as
"the general guardian of all infants, idiots, and lunatics,"
'0 and as the superintendent of "all charitable uses
in the kingdom." 11 In the United States, the "royal
prerogative" and the "parens patriae" function of the
King passed to the States.
The nature of the parens patriae suit has been greatly
expanded in the United States beyond that which existed
in England. This expansion was first evidenced in
Louisiana v. Texas, 176 U. S. 1 (1900), a case in which
the State of Louisiana brought suit to enjoin officials of
the State of Texas from so administering the Texas
quarantine regulations as to prevent Louisiana mer-
8 Malina & Blechman, at 197; State Protection, at 412.
9 State Protection, at 412.
10 3 W. Blackstone, Commentaries *47.
11 Ibid.
258 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
chants from sending goods into Texas. This Court
recognized that Louisiana was attempting to sue, not because
of any particular injury to a business of the State,
but as parens patriae for all her citizens. 176 U. S., at
19. While the Court found that parens patriae could
not properly be invoked in that case, the propriety and
utility of parens patriae suits were clearly recognized.
This Court's acceptance of the notion of parens patriae
suits in Louisiana v. Texas was followed in a series of
cases: Missouri v. Illinois, 180 U. S. 208 ( 1901) (holding
that Missouri was permitted to sue Illinois and a Chicago
sanitation district on behalf of Missouri citizens to enjoin
the discharge of sewage into the Mississippi River);
Kansas v. Colorado, 206 U. S. 46 (1907) (holding that
Kansas was permitted to sue as parens patriae to enjoin
the diversion of water from an interstate stream) ; Georgia
v. Tennessee Copper Co., 206 U.S. 230 (1907) (holding
that Georgia was entitled to sue to enjoin fumes
from a copper plant across the state border from injuring
land in five Georgia counties); New York v. New
Jersey, 256 U. S. 296 (1921) (holding that New York
could sue to enjoin the discharge of sewage into the
New York harbor); Pennsylvania v. West Virginia, 262
U. S. 553 (1923) (holding that Pennsylvania might sue
to enjoin restraints on the commercial flow of natural
gas); and North Dakota v. Minnesota, 263 U. S. 365
(1923) (holding that Minnesota could sue to enjoin
changes in drainage which increase the flow of water in
an interstate stream).
These cases establish the right of a State to sue as
parens patriae to prevent or repair harm to its "quasisovereign"
interests.12 They deal primarily with original
12 Article III, § 2, of the Constitution confers original jurisdiction
upon this Court over suits between States or by one State against
a citizen of another State. In order to properly invoke this jurisdiction,
the State must bring an action on its own behalf and not on
HAWAII v. STANDARD OIL CO. 259
251 Opinion of the Court
suits brought directly in this Court pursuant to Art. III,
§ 2, of the Constitution under common-law rights of
action. The question in this case is not whether Hawaii
may maintain its lawsuit on behalf of its citizens, but
rather whether the injury for which it seeks to recover
is compensable under § 4 of the Clayton Act. Hence,
Hawaii's claim cannot be resolved simply by reference to
any general principles governing parens patriae actions.
The only time this Court has ever faced the question
of what relief, if any, the antitrust laws offer a State
suing as l)G,rens patri,a,e. was in Georgia v. Pennsylvania
R. Co., 324 U. S. 439 (1945), the case relied on
most heavily by the parties herein. In that case,
Georgia sought to invoke the original jurisdiction of
this Court by filing an amended bill of complaint against
20 railroads, alleging, in essence, that the railroads had
conspired to restrain trade and to fix prices in a manner
that would favor shippers in other States (particularly
Northern States) to the detriment of Georgia shippers.
Like this suit, Georgia arose under the federal antitrust
laws. It is plain from the face of the complaint
that "[t]he prayer [was] for damages and for injunctive
relief." 324 U. S., at 445. See id., at 446---447,
450--451.13 Georgia claimed that the conspiracy had
behalf of particular citizens. See, e. g., Loui.siana v. Texas, 176
U. S. I (1900); New Hampshire v. Loui.siana, 108 U.S. 76 (1883);
Oklahoma v. Atchi.son, T. & S. F. R. Co., 220 U. S. 277 (1911).
An action brought by one State against another violates the
Eleventh Amendment if the plaintiff State is actually suing to recover
for injuries to designated individuals. See, e. g., New Hampshire
v. Louisiana, supra; North Dakota v. Minnesota, 263 U.S. 365,
376 (1923).
13 It is evident from the bill of complaint that Georgia sought
to sue in four slightly different capacities: its sovereign capacity
(first count); as a quasi-sovereign (second count); its proprietary
capacity (third count); and as protector of a general class of its
citizens (fourth count). Damages were sought in each count, although
treble damages were sought only on the last count.
260 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
severely damaged its economy and sought to recover damages
on behalf of its citizens.
The Court upheld Georgia's claim as parens patriae
with respect to injunctive relief, but had no occasion
to consider whether the antitrust laws also authorized
damages for an injury to the State's economy, since approval
of the challenged rates by the Interstate Commerce
Commission barred a damage recovery on the
ground that such a remedy would have given Georgia
shippers an unfair advantage over shippers from other
States. See Keogh v. Chicago & Northwestern R. Co.,
260 U. S. 156 (1922). Nowhere in Georgia did the
Court address itself to the question whether § 4 of the
Clayton Act authorizes damages for an ·injury to the
general economy of a State. Thus, the question presented
here is open.
III. HAWAII AND THE ANTITRUST LAWS
Hawaii grounds its claim for treble damages in § 4 of
the Clayton Act, 15 U. S. C. § 15, which reads:
"Any person who shall be injured in his business
or property by reason of anything forbidden in the
antitrust laws may sue therefor in any district
court of the United States in the district in which
the defendant resides or is found or has an agent,
without respect to the amount in controversy, and
shall recover threefold the damages by him sustained,
and the cost of suit, including a reasonable attorney's
fee."
This section is notably different from § 16 of the Clayton
Act, 15 U. S. C. § 26, which provides for injunctive
relief:
"Any person, firm, corporation, or association shall
be entitled to sue for and have injunctive relief, in
any court of the United States having jurisdiction
over the parties, against threatened loss or damage
251
HAWAII v. STANDARD OIL CO. 261
Opinion of the Court
by a violation of the antitrust laws ... when and
under the same conditions and principles as injunctive
relief against threatened conduct that will cause
loss or damage is granted by courts of equity, under
the rules governing such proceedings . . . . "
Hawaii plainly qualifies as a person under both sections
of the statute, whether it sues in its proprietary
capacity or as parens patriae. Georgia v. Pennsylvania
R. Co., 324 U. S., at 447. But the critical question
is whether the injury asserted by Hawaii in its parens
patriae count is an injury to its "business or property."
The legislative history of the Sherman and Clayton
Acts is not very instructive as to why Congress included
the "business or property" requirement in § 4,
but not in § 16. The most likely· explanation lies in
the essential differences between the two remedies.
While the United States Government, the governments
of each State, and any individual threatened with injury
by an antitrust violation may all sue for injunctive
relief against violations of the antitrust laws, and while
they may theoretically d0 so simultaneously against the
same persons for the same violations, the fact is that
one injunction is as effective as 100, and, concomitantly,
that 100 injunctions are no more effective than one.
This case illustrates the point well. The parties are
in virtual agreement that whether or not Hawaii can
sue for injunctive relief as parens patriae is of little
consequence so long as it can seek the same relief in
its proprietary capacity. While some theoretical differences
may exist with respect to the parties capable of
enforcing a parens patriae injunction as opposed to one
secured by a State in its proprietary capacity, these
differences are not crucial to the defendant in an antitrust
case.
The position of a defendant faced with numerous
claims for damages is much different. If the defendant
262 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
is sued by 100 different persons or by one person with
100 separate but cumulative claims, and each claim is
for damages, the potential liability is obviously far
greater than if only one of those persons sued on only
one claim. Thus, there is a striking contrast between
the potential impact of suits for injunctive relief and
suits for damages.
Every violation of the antitrust laws is a blow to the
free-enterprise system envisaged by Congress. See
Northern Pacific R. Co. v. United States, 356 U. S. 1, 4
(1958). This system depends on strong competition for
its health and vigor, and strong competition depends, in
turn, on compliance with antitrust legislation.. In enacting
these laws, Congress had many means at its disposal to
penalize violators. It could have, for example, required
violators to compensate federal, state, and local governments
for the estimated damage to their respective
economies caused by the violations. But, this remedy
was not selected. Instead, Congress chose to permit all
persons to sue to recover three times their actual damages
every time they were injured in their business or property
by an antitrust violation. By offering potential litigants
the prospect of a recovery in three times the amount of
their damages, Congress encouraged these persons to serve
as "private attorneys general." See, e. g., Zenith Radio
Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 130-131
(1969); Perma Life Mufflers, Inc. v. International Parts
Corp., 392 U. S. 134, 147 (1968) (Fortas, J., concurring
in result).
Thus, § 4 permits Hawaii to sue in its proprietary
capacity for three times the damages it has suffered from
respondents' alleged antitrust violations.14 The section
H It is true, as MR. JusTrcE BRENNAN suggests, that an injury
to the State in its proprietary capacity, as alleged in count one of
the complaint, affects the citizens in much the same way as an
injury of the sort claimed by Hawaii here. Each has the effect of
HAWAII v. STANDARD OIL CO. 263
251 Opinion of the Court
gives the same right to every citizen of Hawaii with respect
to any damage to business or property. Were we,
in addition, to hold that Congress authorized the State
increasing taxes, or reducing government services, or both. But this
does not mean that the two kinds of injuries are identical in nature.
Where the injury to the State occurs in its capacity as a consumer
in the marketplace, through a "payment of money wrongfully
induced," Chattanooga Foundry & Pipe Works v. City of Atlanta,
203 U. S. 390, 396 ( 1906), damages are established by the amount of
the overcharge. Under § 4, courts will not go beyond the fact of this
injury to determine whether the victim of the overcharge has partially
recouped its loss in some other way, even though a State, for example,
may ultimately recoup some part of the ov~rcharge through increased
taxes paid by the seller. See Hanover Shoe, Inc. v. United Shoe
Machinery Corp., 392 U. S. 481, 489 (1968). Measurement of an
injury to the general economy, on the other hand, necessarily involves
an examination of the impact of a restraint of trade upon every variable
that affects the State's economic health-a task extremely difficult,
"in the real economic world rather than an economist's hypothetical
model." Id., at 493.
The lower courts have been virtually unanimous in concluding
that Congress did not intend the antitrust laws to provide a remedy
in damages for all injuries that might conceivably be traced to an
antitrust violation. See, e. g., Miley v. John Hancock Mutual, Life
Insurance Co., 148 F. Supp. 299, 303 (Mass.), aff'd, 242 F. 2d
758 (CAI), cert. denied, 355 U. S. 828 ( 1957); Billy Baxter, Inc. v.
Coca-Cola Co., 431 F. 2d 183 (CA2 1970), cert. denied, 401 U.S. 923
(1971); Kauffman v. Dreyfus Fund, Inc., 434 F. 2d 727, 732-734
(CA3 1970), cert. denied, 401 U. S. 974 (1971); South Carolina
Council v. Newton, 360 F. 2d 414, 419 (CA4), cert. denied, 385 U.S.
934 (1966); Dailey v. QuaJ,ity School Plan, Inc., 380 F. 2d 484 (CA5
1967); Valasco Products Co. v. Lloyd A. Fry Roofing Co., 308 F. 2d
383, 395 (CA6 1962), cert. denied, 372 U. S. 907 (1963); Commonwealth
Edison Co. v. Allis-Chal,mers Mfg. Co., 315 F. 2d 564, 566-
567 (CA7), cert. denied sub nom. Illinois v. Commonwealth Edison
Co., 375 U. S. 834 (1963); Sanitary Milk Producers v. Bergjam
Farm Dairy, Inc., 368 F. 2d 679, 688-689 (CA8 1966); Hoopes v.
Union Oil Co., 374 F. 2d 480, 485 (CA9 1967); Nationwide Auto
App. Serv. v. Association of C. & S. Co., 382 F. 2d 925, 928-929
(CAlO 1967).
264 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
to recover damages for injury to its general economy,
we would open the door to duplicative recoveries.
A large and ultimately indeterminable part of the
injury to the "general economy," as it is measured by
economists, is no more than a reflection of injuries to
the "business or property" of consumers, for which they
may recover themselves under § 4. Even the most
lengthy and expensive trial could not, in the final analysis,
cope with the problems of double recovery inherent
in allowing damages for harm both to the economic
interests of individuals and for the quasi-sovereign interests
of the State. At the very least, if the latter
type of injury is to be compensable- under the antitrust
laws, we should insist upon a clear expression of a congressional
purpose to make it so, and no such expression
is to be found in § 4 of the Clayton Act.
Like the lower courts that have considered the
meaning of the words "business or property," we conclude
that they refer to commercial interests or enterprises.
See, e. g., Roseland v. Ph'ister Mfg. Co., 125
F. 2d 417 (CA7 1942); Hamman v. United States, 267
F. Supp. 420 (Mont. 1967), appeal dismissed, 399 F.
2d 673 (CA9 1968); Broadcasters, Inc. v. Morristown
Broadcasting Corp., 185 F. Supp. 641 (NJ 1960). When
the State seeks damages for injuries to its commercial
interests, it may sue under § 4. But where, as here,
the State seeks damages for other injuries, it is not
properly within the Clayton Act.
Support for this reading of § 4 is found in the legislative
history of 15 U. S. C. § 15a,10 which is the only
15 "Whenever the United States is hereafter injured in its business
or property by reason of anything forbidden in the antitrust laws it
may sue therefor ... , and shall recover actual damages by it sustained
and the cost of suit." 69 Stat. 282, 15 U. S. C. § 15a.
This section was enacted in 1%5 following the decision in United
States v. Cooper Corp., 312 U. S. 600 (1941), which held that the
United States was not a "person" within the meaning of § 7 of the
HA WAIi v. STANDARD OIL CO. 265
251 Opinion of the Court
provision authorizing recovery in damages by the United
States, and which limits that recovery to damages to
"business or property." The legislative history of that
provision makes it quite plain that the United States
was authorized to recover, not for general injury to the
national economy or to the Government's ability to
carry out its functions, but only for those injuries suffered
in its capacity as a consumer of goods and services.
"The United States is, of course, amply equipped
with the criminal and civil process with which to
enforce the antitrust la\vs. The proposed legislation,
quite properly, treats the United States solely
as a buyer of goods and permits the recovery of the
actual damages suffered." S. Rep. No. 619, 84th
Cong., 1st Sess., 3 (1955).
See also H. R. Rep. No. 422, 84th Cong., 1st Sess., 2-5
(1955). In light of the language used as well as the legislative
history of 15 U. S. C. § 15a, it is manifest that the
United States cannot recover for economic injuries to its
sovereign interests, as opposed to its proprietary functions.
And the conclusion is nearly inescapable that § 4,
which uses identical language, does not authorize recovery
for economic injuries to the sovereign interests of a State.
We note in passing the State's claim that the costs
and other burdens of protracted litigation render private
citizens impotent to bring treble-damage actions, and
thus that denying Hawaii the right to sue for injury
to her quasi-sovereign interests will allow antitrust violations
to go virtually unremedied. Private citizens are
not as powerless, however, as the State suggests.
Sherman Act (the predecessor of § 4 of the Clayton Act). Recovery
is limited to actual rather than treble damages because Congress
reasoned that the United States, unlike a private party, needed no
extraordinary incentive to bring antitrust suits. H. R. Rep. No. 422,
84th Cong., 1st Sess., 3 (1955).
266 OCTOBER TERM, 1971
DOUGLAS, J., dissenting 405 U.S.
Congress has given private citizens rights of action for
injunctive relief and damages for antitrust violations
without regard to the amount in controversy. 28 U.S. C.
§ 1337; 15 U. S. C. § 15. Rule 23 of the Federal Rules
of Civil Procedure provides for class actions that may
enhance the efficacy of private actions by permitting
citizens to combine their limited resources to achieve a
more powerful litigation posture. The District Court
dismissed Hawaii's class action only because it was unwieldy;
it did not hold that a State could never bring
a class action on behalf of some or all of its consumer
citizens. Respondents, in moving to dismiss count three
of the fourth amended complaint, in which the State
sought to bring such an action, virtually conceded that
class actions might be appropriate under certain circumstances.
The fact that a successful antitrust suit for
damages recovers not only the costs of the litigation,
but also attorney's fees, should provide no scarcity of
members of the Bar to aid prospective plaintiffs in bringing
these suits.
Parens patriae actions may, in theory, be related to class
actions, but the latter are definitely preferable in the
antitrust area. Rule 23 provides specific rules for delineating
the appropriate plaintiff-class, establishes who
is bound by the action, and effectively prevents duplicative
recoveries.
The judgment of the Court of Appeals is affirmed for
the reasons stated above.
So ordered.
MR. JusTICE PowELL and MR. JusTICE REHNQUIST
took no part in the consideration or decision of this case.
MR. JUSTICE DOUGLAS, dissenting.
Today's decision reflects a miserly approach to the
fashioning of federal remedies rectifying injuries to the
collective interests of the citizens of a State through
HAWAII v. STANDARD OIL CO. 267
251 DouGLAS, J., dissenting
action by the State itself.
starred decision in Ohio v.
401 u. s. 493.1
It is reminiscent of the ill-
Wyandotte Chemicals Corp.,
Hawaii, in her fourth amended complaint, sues for damages
and injunctive relief as parens patriae by virtue of
her "duty to protect the general welfare of the State and
its citizens." She alleges that the alleged conspiracy
among the respondent oil companies has "injured and
adversely affected the economy and prosperity" of
Hawaii as follows:
"(a) revenues of its citizens have been wrongfully
extracted from the State of Hawaii;
"(b) taxes affecting the citizens and commercial
entities have been increased to affect such losses of
revenues and income;
" ( c) opportunity in manufacturing, shipping and
commerce have been restricted and curtailed;
" ( d) the full and complete utilization of the natural
wealth of the State has been prevented;
" ( e) the high cost of manufacture in Hawaii has
precluded goods made there from equal competitive
access with those of other States to the national
market;
" ( f) measures taken by the State to promote the
general progress and welfare of its people have been
frustrated;
1 In Wyandotte, the Court refused to exercise its conceded original
jurisdiction over an original complaint filed by the State of Ohio
to enjoin alleged pollution of Lake Erie by manufacturing plants
in Michigan and Ontario, Canada; because "as a practical matter,
it would be inappropriate for this Court to attempt to adjudicate
the issues .... " 401 U. S., at 501. In the light of our rules
permitting the appointment of special masters, however, this rationale
is questionable at best. Id., at 510-512 (DOUGLAS, J., dissenting).
See generally Woods & Reed, The Supreme Court and Interstate
Environmental Quality: Some Notes on the Wyandotte Case, 12
Ariz. L. Rev. 691 (1970).
268 OCTOBER TERM, 1971
DouGLAS, J., dissenting 405 U.S.
"(g) the Hawaii economy has been held in a state
of arrested development."
I see no way of distinguishing the instant case from
Georgia v. Pennsylvania R. Co., 324 U. S. 439. The
Georgi,a case held that a State may sue as parens
patriae under the antitrust laws for injury to the economy
of the State resulting from a conspiracy to restrain
trade and commerce through the fixing of railroad rates.
Id., at 446. As we said:
"Georgia as a representative of the public is complaining
of a wrong which, if proven, limits the
opportunities of her people, shackles her industries,
retards her development, and relegates her to an
inferior economic position among her sister States.
These are matters of grave public concern in which
Georgia has an interest apart from that of particular
individuals who may be affected." Id., at 451.
So-called "growth," "progress," and "development" are
more than symbols of power in modern society; they
represent the goal which planners-private and public
alike-establish and seek to attain. And the State plays
an important, at times crucial, role in achieving that
goal.2 If Hawaii can sustain her allegations by proof,
2 "In these three respects-as a clearing house for necessary institutional
innovations; as an agency for resolution of conflicts among
group interests; and as a major entrepreneur for the socially required
infrastructure-the sovereign state assumes key importance in channeling
the explosive impacts of continuous structural changes, in
providing a proper framework in which these structural changes,
proceeding at revolutionary speed, are contained and prevented from
exploding into a civil war (as they sometimes may, and have).
Thus, the high rate of change in economic structure is linked to
the importance of the sovereign state as an organizing unit. It is
not accidental that, in measuring and analyzing economic growth, we
talk of the economic growth of nations and use national economic
accounts. In doing so, we imply that the sovereign state is an
HAWAII v. STANDARD OIL CO. 269
251 DouGLAS, J., dissenting
she establishes injury both as respects her tourism and
her industry, her "growth" and her "development."
The Court of Appeals was "skeptical of the existence
of an independent harm to the general economy." 431
F. 2d 1282, 1285. But as Alabama states in her brief
amicus:
"Economists have developed models for measuring
the effects upon local economies from infusions or
extractions of given sums of money from those economies.
In short, a state's economy is susceptible of
articulation and measurement."
Hawaii is the magnet of tourism and of industry as well.
She measures the health of her economy by her economic
growth. No one citizen can stand in her shoes in those
respects, for she represents the collective. Those interests
should be held to be the State's "business or property"
interests, within the meaning of the Clayton Act, and not
merely the plants, factories, or hotels which she may own
as a proprietor. We held as much in the Georgia case.
It is indisputable that if Hawaii does prove damages,
Georgia authorizes recovery. For as MR. JusTICE BRENNAN
points out, Georgia was denied damages only because
of a technicality irrelevant to the present case.
Injury to the collective will commonly include injury
to members o1 the collective. In that event damages
recovered by Hawaii could not later be recovered by individual
entrepreneurs. It might, of course, be shown
that the individual's loss for the period in question was
distinct from any impact on the collective. Thus, if
important factor in modern economic growth; that, given the transnational,
worldwide character of the supply of useful knowledge and
science, the major permissive factor of modern economic growth,
the state unit, in adjusting economic and social institutions to facilitate
and ma.ximise application, plays a crucial supplementary role."
S. Kuznets, Economic Growth of Nations 346-347 (1971).
270 OCTOBER TERM, 1971
BRENNAN, J., dissenting 405 U.S.
Hawaii failed to prove that the alleged conspiracy damaged
her economy, a single entrepreneur might still be
able to prove that it drove him to the wall. The difficulties
advanced in this regard are more imaginary than
real. They are doubtless rationales that express a prejudice
against liberal construction of the antitrust laws.
Since a collective damage is alleged, I would allow the
case to go to trial, saving to Congress the question
whether § 4 of the Clayton Act should be restricted to a
State's proprietary interests.
I would adhere to the Georgia case and allow Hawaii
a chance to prove her charges and to establish the actuality
of damages or the need for equitable relief.3
I would reverse the judgment and remand the case
for trial:'
MR. JusTICE BRENNAN, with whom MR. JUSTICE
DouGLAS joins, dissenting.
The State of Hawaii seeks treble damages and injunctive
relief for an alleged conspiracy among respondents
to monopolize and fix prices on the sale of petroleum
3 The question of injunctive relief concerns the meaning of § 16 of
the Clayton Act which grants relief to any "person" against loss or
damage by a violation of "the antitrust" laws. It is settled that a
State is a "person" within the meaning of § 16. Georgia v. Pennsylvania
R. Co., 324 U. S. 439, 452. Hence, it is clear that even if
Hawaii does not prove damages, equitable relief is available as it was
in the Georgia case.
4 My quarrel with the Court does not extend to its approving
reference to the possibility that Hawaii may yet be able to maintain
a class action on behalf of her consumers, ante, at 266. Cf. Comment,
Wrongs Without Remedy: The Concept of Parens Patriae Suits
for Treble Damages Under the Antitrust Laws, 43 S. Cal. L. Rev.
570, 580-583 (1970). The District Court's dismissal of Hawaii's class
action count a;; "unmanageable" was not certified for interlocutory
appeal, and Hawaii's rights under Fed. Rule Civ. Proc. 23 are not
before us for review.
HAWAII v. STANDARD OIL CO. 271
251 BRENNAN, J., dissenting
products in the State. Count one of Hawaii's complaint
alleges an economic injury to the State in its proprietary
capacity as purchaser of those products. Count
two states a claim by the State, as parens patriae, for
injury to its "economy and prosperity," including the
withdrawal of its citizens' revenues, increased taxes to
offset such losses, curtailment of manufacturing, shipping,
and commerce, and injury to the competitive position
of Hawaiian goods in the national market. Count
three alleges a class action on behalf of all purchasers
in the State of respondents' petroleum products. The
District Court dismissed count three as unmanageable,
but denied respondents' motion to dismiss Count two,
the parens patriae claim. An interlocutory appeal was
taken by respondents under 28 U. S. C. § 1292 (b), and
the Court of Appeals for the Ninth Circuit reversed and
ordered dismissal of count two. The Court of Appeals
held that even if the State's economy might suffer injury
from antitrust violations independent of the injury suffered
by private persons, that injury would not be to
the State's "business or property" within the meaning of
§ 4 of the Clayton Act, and in any event would be too
remote from respondents' alleged violations to permit the
State to recover as parens patriae.
Georgw v. Pennsylvania R. Co., 324 U.S. 439 (1945),
in my view, requires reversal. In that case the State
of Georgia sought to invoke the original jurisdiction
of this Court to remedy a conspiracy by several
railroads to fix rates on the transportation of goods to
and from the State. As noted by the Court, ante, at
259 n. 13, Georgia sought damages in each of the four
counts of its complaint-in its sovereign capacity, as
a quasi-sovereign, in its proprietary capacity, and as
representative of its citizens. Treating the complaint
as a prayer "for damages and for injunctive relief," 324
272 OCTOBER TERM, 1971
BRENNAN, J., dissenting 405 U.S.
U. S., at 445, the Court held that Georgia, both as
parens patriae and proprietor, was an appropriate party
to bring these claims:
"The enforcement of the criminal sanctions of
[ the antitrust] acts has been entrusted exclusively
to the federal government. See Georgia v. Evans,
[316 U. S. 159,J 162. But when it came to
other sanctions Congress followed a different course
and authorized civil suits not only by the United
States but by other persons as well. And we find
no indication that, when Congress fashioned those
civil remedies, it restricted the States to suits to
protect their proprietary interests. Suits by a State,
parens patriae, have long been recognized. There
is no apparent reason why those suits should be
excluded from the purview of the anti-trust acts."
Id., at 447.
Georgia was in fact denied damages, but only because
such recovery might operate as an illegal rebate on rates
already approved by the Interstate Commerce Commission.
See Keogh v. Chicago & Northwestern R. Co., 260
U.S. 156 (1922). Implicit in the decision, however, was
the holding that Georgia, as parens patriae, could have
recovered damages under the antitrust laws for a conspiracy
involving other than agency-approved transportation
charges. That holding applies with equal
force here. Hawaii is complaining, not of an affront to
its abstract sovereignty, but of the economic loss occasioned
by respondents' conspiracy. As in Georgia,
this can only be characterized as a wrong to the State
"which, if proven, limits the opportunities of her people,
shackles her industries, retards her development, and
relegates her to an inferior economic position among her
sister States." 324 U. S., at 451. If that injury would
have been a sufficient basis for a damage claim by
HAWAII v. STANDARD OIL CO. 273
251 BRENNAN, J., dissenting
Georgia, as we held in that case, then it supports an
identical action by Hawaii here.
Even if Georgia were not dispositive, I would still find
in Hawaii's parens patriae count a claim of injury to
its "business or property" sufficient to state a claim
under § 4. There runs through the Court's opinion
an assumption that Hawaii's proprietary claims, though
concededly sufficient to state a cause of action, are wholly
distinct in concept from those rafa:ed by the State as
parens patriae. While I agree that the two counts represent
injuries to the State in separate capacities, the
injuries themselves are not so unrelated as to justify a
different treatment under the. Clayton Act. In Chattanooga
Foundry & Pipe Works v. City of Atlanta, 203
U. S. 390 ( 1906), the city brought a treble-damages action
against two pipe companies whose trust and combination
had been invalidated in Addyston Pipe & Steel Co. v.
United States, 175 U. S. 211 (1899). Claiming injury
"'in its business or property,'" 203 U. S., at 395, the city
sought damages in its capacity as a purchaser of water
pipes for the municipal water system. In upholding the
right of the city to bring that action, the Court stated:
"It was injured in its property, at least, if not in its
business of furnishing water, by being led to pay
more than the worth of the pipe. A person whose
property is diminished by a payment of money
wrongfully induced is injured in his property." Id.,
at 396.
See also Georgia v. Evans, 316 U.S. 159 (1942).
The determinant, then, is whether "property is diminished
by a payment of money wrongfully induced."
But what was the nature of the injury to property for
which recovery was permitted in Chattanooga? Clearly
it was nothing more than the added expense incurred by
the city's treasury as the result of the antitrust violation.
274 OCTOBER TERM, 1971
BRENNAN, J., dissenting 405U.S.
While it was incurred in the course of a business transaction,
the harm was to the economic wealth of the
city's population as a whole, for any savings in public
expenditures that ultimately accrued were for their
benefit.
This is the same sort of interest sought to be protected
here. Hawaii's economy, to which tourism and
the tourist trade are important, would be particularly vulnerable
to injury from a price conspiracy involving petroleum
products. In seeking to preserve the economic
opportunities of its people, and the tax revenues generated
thereby, Hawaii is asserting an interest not significantly
different in concept from that involved in Chattanooga.
Whether the injury sought to be remedied
consists of additional payments from the public purse,
as in that case, or the failure to generate additional
wealth, as here, the result in either instance.is the samethe
government and its population, as entities, have suffered
harm to their economic well-being. If that harm
is characterized "business or property" in one case, then
we stretch no traditional property concepts in applying
the same label in the other.*
*The Court seems to concede as much in saying that an "injury
to the State in its proprietary capacity ... affects the citizens in
much the same way as an injury of the sort claimed by Hawaii
here." Ante, at 262 n. 14. Yet because the assessment of damages
might prove more difficult in a parens patriae than a proprietary action,
the Court concludes that "the two kinds of injuries are [not]
identical in nature." Id., at 263 n. 14. The Court plainly confuses
two separate issues. The injury to Hawaii's general economy may
present problems of proof not raised in its proprietary action. but a
mere difficulty in the assessment of damages cannot change 1 he
nature of the damage claimed. In short, I think that Hawaii has
alleged an injury to its "business or property," and, on the entirely
separate question of proving damages; agree with my Brother
DoUGLAs that the injury can be quantified, or at least approximatrd.
HAWAII v. STANDARD OIL CO. 275
251 BRENNAN, J., dissenting
This conclusion is not undercut by 15 U. S. C. § 15a,
which limits recovery by the United States for injury
to its "business or property" caused by a violation of
the antitrust laws to "actual damages suffered" "solely
as a buyer of goods." S. Rep. No. 619, 84th Cong., 1st
Sess., 3 (1955). Nothing in the Act similarly restricts
a State, suing as parens patrwe. As the legislative history
of § 15a shows, the major emphasis during passage
of the Sherman Act was on the methods of its enforcement.
"[I] t was believed that the most effective
method, in addition to the imposition of penalties by the
United States, was to provide for private treble-damage
suits. It was originally hoped that this would encourage
private litigants to bear a considerable amount of the
burden and expense of enforcement and thus save the
Government time and money." Id., at 2. Thus private
litigants, encouraged by the hope of triple recovery,
were seen as a major instrument of antitrust enforcement,
supplemented by criminal prosecutions and
civil forfeiture actions brought by the Federal Government.
These remedies did not, however, adequately
protect the Government as the volume of its procurement
grew and collusion among its suppliers became
increasingly evident. This was the mischief Congress
enacted § 15a to curb:
"The American taxpayer is entitled to full value
for his tax dollar. He should be protected against
its going into the pockets of wrongdoers in the
form of excessive prices and profits gained through
violation of the antitrust laws. If he were spending
the money himself, he could sue for triple damages.
Surely, he is entitled to protection from
actual loss where the Government spends it for
him. By permitting the United States Government
to recover the provable damages resulting from
276 OCTOBER TERM, 1971
BRENNAN, J., dissenting 405 u. s.
unlawful practices engaged in by those with whom
it does business, [ § 15a] would afford those safeguards
necessary to the Public Treasury and at
the same time severely deter those who would conspire
in their dealings with Federal departments."
H. R. Rep. No. 422, 84th Cong., 1st Sess., 4-5 (1955).
At the same time, however, Congress felt that "unlike
the situation with respect to private persons, there is
no need to furnish the Government an}'. special incentive
to enforce the antitrust laws, a heavy responsibility
with which it is already charged," and therefore Congress
granted "to the Government the right to recover
only actual, as distinguished from treble, damages."
Id., at 4. In addition, Congress felt that the United
States was "amply equipped with the criminal and civil
process with which to enforce the antitrust laws. The
proposed legislation, quite properly, treats the United
States solely as a buyer of goods and permits the recovery
of the actual damages suffered." S. Rep. No. 619,
supra, at 3.
Thus § 15a served a narrower purpose than the trebledamages
provisions of the Sherman and Clayton Acts.
The United States was "amply equipped" with "criminal
and civil process" for general enforcement, and
needed a damage remedy solely to protect itself "as a
buyer of goods." On the other hand private litigants,
including the States, lacked the Government's "criminal
and civil process." Yet they were viewed as primary
enforcers of antitrust policy and were armed with the
weapon of triple recovery as a means of stimulating
their efforts. It is plain from the history of § 15a that
Congress did not intend the States to be denied the
treble-damages remedy Hawaii pursues here.
Finally, this result does not necessarily lead to double
recovery. Since Hawaii is by definition asserting claims
"independent of and behind the titles of its citizens,"
HAWAII v. STANDARD OIL CO. 277
251 BRENNAN, J., dissenting
Georgi.a v. Tennessee Copper Co., 206 U. S. 230, 237
(1907), there may be excluded from its recovery any
monetary damages that might be claimed by its citizens
individually or as part of a properly constituted
class. That problem, like uncertainty of damages, is
better answered after trial than on the pleadings.
In sum, I think that since no one questions that
Hawaii can maintain a treble-damages action in its proprietary
capacity, for analogous reasons, Hawaii may also
maintain the action pleaded in count two as parens
patri.ae.
278 OCTOBER TERM, 1971
Syllabus 405 u. s.
ADAMS v. ILLINOIS
CERTIORARI TO THE SUPREME COURT OF ILLINOIS
No. 70--5038. Argued December 7, 1971-Decided March 6, 1972
Petitioner's pretrial motion to dismiss the indictment against him
because of the court's failure to appoint counsel to represent
him at the preliminary hearing in 1967 was denied, and petitioner
was tried and convicted. The Illinois Supreme Court
affirmed on the ground that Coleman v. Alabama, 399 U. S. 1,
in which this Court held that a preliminary hearing is a critical
stage of the criminal process at which the accused is constitutionally
entitled to assistance of counsel, did not have retroactive
application. Held: The judgment is affirmed. Pp. 280-286.
46 Ill. 2d 200, 263 N. E. 2d 490, affirmed.
:\1R. JUSTICE BRENNAN, joined by MR. JUSTICE STEWART and
MR. JusTicE WHITE, concluded that Coleman v. Alabama,
supra, does not apply retroactively to preliminary hearings conducted
before June 22, 1970, when Ct!leman was decided.
Pp. 280-285.
MR. CHIEF JusTrcE BURGER concurred in the result, concluding,
as set forth in his dissent in Coleman, that there is no constitutional
requirement that counsel should be provided at preliminary
hearings. Pp. 285-286.
MR. JUSTICE BLACKMON concurred in the result, concluding
that Coleman was wrongly decided. P. 286.
BRENNAN, J., announced the Court's judgment and delivered an
opinion, in which STEWART and WHITE, JJ., joined. BuRGER, C. J.,
filed an opinion concurring in the result , post, p. 285. BLACKMUN,
J., filed a statement concurring in the result, post, p. 286. Dot:Gus
J., filed a dissenting opinion, in which MARSHALL, .J., joined, post,
p. 286. POWELL and REHNQUIST, JJ., took no part in the consideration
or decision of the case.
Edward M. Genson argued the cause for petitioner.
With him on the brief were Charles B. Evins, R. Eugene
Pincham, and Sam Adam.
E. James Gildea argued the cause for respondent. On
the brief were William J. Scott, Attorney General of
ADAMS v. ILLINOIS 279
278 Opinion of BRENNAN, J.
Illinois, Joel M. Flaum, First Assistant Attorney General,
and James B. Zagel and James R. Streicker, Assistant
Attorneys General.
MR. JusTICE BRENNAN announced the judgment of the
Court and an opinion, in which MR. JusTICE STEWART
and MR. JusTICE WHITE join.
In Coleman v. Alabama, 399 U. S. 1, decided June 22,
1970, we held that a preliminary hearing is a critical
stage of the criminal process at which the accused
is constitutionally entitled to the assistance of counsel.
This case presents the question whether that constitutional
doctrine applies retroactively to preliminary hearings
conducted prior to June 22, 1970.
The Circuit Court of Cook County, IUinois, conducted
a preliminary hearing on February 10, 1967, on a charge
against petitioner of selling heroin. Petitioner was not
represented by counsel at the hearing. He was bound
over to the grand jury, which indicted him. By pretrial
motion he sought dismissal of the· indictment on the
ground that it was invalid because of the failure of the
court to appoint counsel to represent him at the preliminary
hearing. The motion was denied on May 3,
1967, on the authority of People v. Morris, 30 Ill. 2d 406,
197 N. E. 2d 433 (1964). In Morris the Illinois Supreme
Court held that the Illinois preliminary hearing was not
a critical stage at which the accused had a constitutional
right to the assistance of counsel. Petitioner's conviction
was affirmed by the Illinois Supreme Court, which
rejected petitioner's argument that the later Coleman
decision required reversal. The court acknowledged that
its Morris decision was superseded by Coleman,1 but
1 The Illinois Supreme Court stated, 46 Ill. 2d, at 205-206, 263
N. E. 2d, at 493,
"A preliminary hearing in Alabama, as in Illinois, has the purpose
of determining whether there is probable cause to believe an offense
280 OCTOBER TERM, 1971
Opinion of BRENNAN, J. 405 U.S.
held that Coleman applied only to preliminary hearings
conducted after June 22, 1970, the date Coleman
was decided. 46 111. 2d 200, 263 N. E. 2d 490 (1970).
We granted certiorari limited to the question of the
retroactivity of Coleman. 401 U. S. 953 (1971). We
affirm.
The criteria guiding resolution of the question of the
retroactivity of new constitutional rules of criminal procedure
"implicate (a) the purpose to be served by the
new standards, (b) the extent of the reliance by law
enforcement authorities on the old standards, and ( c) the
effect on the administration of justice of a retroactive
application of the new standards." Stovall v. Denno,
388 U. S. 293, 297 (1967). We have given complete
retroactive effect to the new rule, regardless of good-faith
reliance by law enforcement authorities or the degree of
impact on the administration of justice, where the "major
purpose of new constitutional doctrine is to overcome an
aspect of the criminal trial that substantially impairs its
truth-finding function and so raises serious questions
about the accuracy of guilty verdicts in past trials .... "
Willi.ams v. United States, 401 U. S. -646, 653 (1971).
Examples are the right to counsel at trial, Gideon v.
has been committed by the defendant . . . . In both States the
hearing is not a required step in the process of prosecution, as the
prosecutor may seek an indictment directly from the grand jury,
thereby eliminating the proceeding. . . . In neither State is a
defendant required to offer defenses at the hearing at the risk of
being precluded from raising them at the trial itself. . . . We conclude
that the preliminary hearing procedures of Alabama and
Illinois are substantially alike and we must consider because of
Coleman v. Alabama . . . that a preliminary hearing conducted
pursuant to section 109-3 of the Criminal Code (Ill. Rev. Stat. 1969,
ch. 38, par. 109-3) is a 'critical stage' in this State's criminal process
so as to entitle the accused to the assistimce of counsel."
A right to a preliminary hearing has been constitutionally established,
effective July 1, 1971. Illinois Constitution of 1970, Art. I,
§ 7.
ADAMS v. ILLINOIS 281
278 Opinion of BRENNAN, J.
Wainwright, 372 U. S. 335 (1963); on appeal, Douglas
v. California, 372 U. S. 353 (1963); or at some forms of
arraignment, Hamilton v. Alabama, 368 U. S. 52 (1961).
See generally Stovall v. Denno, supra, at 297-298; Williams
v. United States, supra, at 653 n. 6.
However, "the question whether a constitutional rule
of criminal procedure does or does not enhance the reliability
of the fact-finding process at trial is necessarily
a matter of degree," Johnson v. New Jersey, 384 U. S.
719, 728-729 (1966); it is a "question of probabilities."
Id., at 729. Thus, although the rule requiring the assistance
of counsel at a lineup, United States v. Wade,
388 U. S. 218 ( 1967); Gilbert v. California, 388 U.S. 263
( 1967), is "aimed at avoiding unfairness at the trial by
enhancing the reliability of the fact-finding process in the
area of identification evidence," we held that the probabilities
of infecting the integrity of the truth-determining
process by denial of counsel at the lineup were sufficiently
less than the omission of counsel at the trial itself or on
appeal that those probabilities "must in turn be weighed
against the prior justified reliance upon the old standard
and the impact of retroactivity upon the administration
of justice." Stovall v. Denno, supra, at 298.
We hold that similarly the role of counsel at the preliminary
hearing differs sufficiently from the role of
counsel at trial in its impact upon the integrity of the
factfinding process as to require the weighing of the
probabilities of such infection against the elements of
prior justified reliance and the impact of retroactivity
upon the administration of criminal justice. We may
lay aside the functions of counsel at the preliminary
hearing that do not bear on the factfinding process at
trial-counsel's help in persuading the court not to hold
the accused for the grand jury or meanwhile to admit
the accused to bail. Coleman, 399 U. S., at 9. Of
counsel's other functions-to "fashion a vital impeach282
OCTOBER TERM, 1971
Opinion of BRENNAN, J. 405 U.S.
ment tool for use in cross-examination of the State's
witnesses at the trial," to "discover the case the State has
against his client," "making effective arguments for the
accused on such matters as the necessity for an early
psychiatric examination ... ," ibid.-impeachment and
discovery may make particularly significant contribution
to the enhancement of the factfinding process, since they
materially affect an accused's ability to present an effective
defense at trial. But because of limitations upon
the use of the preliminary hearing for discovery and
impeachment purposes, counsel cannot be as effectual as
at trial or on appeal. The aqthority of the court to
terminate the preliminary hearing once probable cause is
established, see People v. Bonner, 37 Ill. 2d 553, 560, 229
N. E. 2d 527, 531 ( 1967), means that the degree of discovery
obtained will vary depending on how much evidence
the presiding judge receives. Too, the preliminary
hearing is held at an early stage of the prosecution when
the evidence ultimately gathered by the prosecution may
not be complete. Cf. S. Rep. No. 371, 90th Cong., 1st
Sess., 33, on amending 18 V. S. C. § 3060. Counsel must
also avail himself of alternative procedures, always a
significant factor to be weighed in the scales. Johnson v.
New Jersey, 384 U. S., at 730. Illinois provides, for example,
bills of particulars and discovery of the names of
prosecution witnesses. Ill. Rev. Stat., c. 38, §§ 114-2,
114-9, 114-10 (1971). Pretrial statements of prosecution
witnesses may also be obtained for use for impeachment
purposes. See, e. g., People v. Johnson, 31 Ill. 2d
602, 203 N. E. 2d 399 (1964).
We accordingly agree with the conclusion of the Illinois
Supreme Court, "On this scale of probabilities, we judge
that the lack of counsel at a preliminary hearing involves
less danger to 'the integrity of the truth-determining
process at trial' than the omission of counsel at the trial
ADAMS v. ILLINOIS 283
278 Opinion of BRENNAN, J.
itself or on appeal. Such danger is not ordinarily greater,
we consider, at a preliminary hearing at which the accused
is unrepresented than at a pretrial line-up or at
an interrogation conducted without presence of an attorney."
46 Ill. 2d, at 207, 263 N. E. 2d, at 494.2
We turn then to weighing the probabilities that the
denial of counsel at the preliminary hearing will infect
the integrity of the factfinding process at trial against
the prior justified reliance upon the old standard and
the impact of retroactivity upon the administration of
justice. We do not think that law enforcement authorities
are to be faulted for not anticipating Coleman.
There was no clear foreshadowing of that rule. A contrary
inference was not unreasonable in light of our decisions
in Hamilton v. Alabama, 368 U. S. 52, and White v.
Maryland, 373 U. S. 59 (1963). Hamilton denominated
the arraignment stage in Alabama critical because defenses
not asserted at that stage might be forever lost.
White held that an uncounseled plea of guilty at a
Maryland preliminary hearing could not be introduced by
the State at trial. Many state courts not unreasonably
regarded Hamilton and White as fashioning limited constitutional
rules governing preliminary hearings. See,
e. g., the decision of the Illinois Supreme Court in People
v. Morris, 30 Ill. 2d 406, 197 N. E. 2d 433. Moreover, a
2 Accord: Phillips v. North Carolina, 433 F. 2d 659, 662 (1970) ,
where the Court of Appeals for the Fourth Circuit observed:
"To be sure, if a preliminary hearing is held, the accused gains
important rights and advantages that can be effectively exercised
only through his attorney. Counsel's function, however, differs from
his function at trial. Broadly speaking, his role at the preliminary
hearing is to advise, observe, discover the facts, and probe the state's
case. In this respect he serves in somewhat the same capacity as
counsel at lineups and interrogations, which are both pretrial stages
of criminal proceedings where the right to counsel has not been held
retroactive."
284 OCTOBER TER;vl, 1971
Opinion of BRENNAN, J. 405 U.S.
number of courts, including all of the federal courts of
appeals had concluded that the preliminary hearing was
not a critical stage entitling an accused to the assistance
of counsel.3 It is thus clear there has been understandable
and widespread reliance upon this view by law enforcement
officials and the courts.
It follows that retroactive application of Coleman
"would seriously disrupt the administration of our criminal
laws." Johnson v. l1.:ew Jersey, 384 U.S., at 731. At
the very least, the processing of current criminal calendars
would be disrupted while hearings were conducted to
determine whether the denial of counsel at the preliminary
hearing constituted harmless error. Cf. Stovall
v. Denno, 388 U. S., at 300. The task of conducting such
hearings would be immeasurably complicated by the need
to construct a record of what occurred. In Illinois, for
example, no court reporter was present at pre-Coleman
preliminary hearings and the proceedings are therefore
not recorded. See People v. Givans, 83 Ill. App. 2d 423,
228 N. E. 2d 123 (1967). In addition, relief from this
constitutional error would require not merely a new
trial but also, at least in Illinois, a new preliminary hearing
and a new indictment. The impact upon the administration
of the criminal law of that requirement needs no
elaboration. Therefore, here also, "[t]he unusual force
of the countervailing considerations strengthens our con-
3 Pagan Cancel v. Delgado, 408 F. 2d 1018 (CAl 1969); United
States ex rel. Cooper v. Reineke, 333 F. 2d 608 (CA2 1964); United
States ex rel. Budd v. Maroney, 398 F. 2d 806 (CA3 1968); DeToro
v. Pepersack, 332 F. 2d 341 (CA4 1964); Walker v. Wainwright,
409 F. 2d 1311 (CA5 1969); Waddy v. Heer, 383 F. 2d 789 (CA6
1967); Butler v. Burke, 360 F. 2d 118 (CA7 1966); Pope v. Swenson,
395 F. 2d 321 (CA8 1968); Wilson v. Harris, 351 F. 2d 840
(CA9 1965); Latham v. Crouse, 320 F. 2d 120 (CAlO 1963); Headen
v. United States, 115 U.S. App. D. C. 81, 317 F. 2d 145 (1963).
ADAMS v. ILLINOIS 285
278 BURGER, C. J., concurring in result
clusion in favor of prospective application." Stovall v.
Denno, supra, at 299.
We do not regard petitioner's case as calling for a contrary
conclusion merely because he made a pretrial motion
to dismiss the indictment, or because his conviction
is before us on direct review. "[T]he factors of reliance
and burden on the administration of justice [are]
entitled to such overriding significance as to make
[ those] distinction f s] unsupportable." Stovall v. Denno,
supra, at 300--301. Petitioner makes no claim of actual
prejudice constituting a denial of due process. Such a
claim would entitle him to a hearing without regard to
today's holding that Coleman is not to be retroactively
applied. See People v. Bernatowicz, 35 Ill. 2d 192, 198,
220 N. E. 2d 745, 748 (1966); People v. Bonner, 37 Ill.
2d 553, 561, 229 N. E. 2d 527, 532 (1967).
Affirmed.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of this case.
MR. CHIEF JUSTICE BURGER, concurring in the result.
I concur in the result but maintain the view expressed
in my dissent in Coleman v. Alabama, 399 U. S. 1, 21
( 1970), that while counsel should be provided at preliminary
hearings as a matter of sound policy and judicial
administration, there is no constitutional requirement
that it be done. As I noted in Coleman, the
constitutional command applies to "criminal prosecutions,"
not to the shifting notion of "critical stages."
Nor can I join in the view that it is a function of constitutional
adjudication to assure that defense counsel
can "fashion a vital impeachment tool for use in crossexamination
of the State's witnesses at the trial" or
"discover the case the State has against his client."
286 OCTOBER TERM, 1971
DoUGLAS, J., dissenting 405 U.S.
399 U. S., at 9. Nothing could better illustrate the
extra-constitutional scope of Coleman than the interpretation
of it now to explain why we do not make it
"retroactive."
MR. JUSTICE BLACKMUN, concurring m the result.
Inasmuch as I feel that Coleman v. Alabama, 399 U. S.
1 ( 1970), was wrongly decided, I concur in the remit.
MR. JusTICE DouGLAS, with whom MR. JUSTICE MARSHALL
concurs, dissenting.
Until Linkletter v. Walker, 381 U. S. 618 (1965), the
Court traditionally applied new constitutional criminal
procedure standards to cases finalized and police practices
operative before the promulgation of the new rules.'
Linkletter, however, was the cradle of a new doctrine of
nonretroactivity which exempts from relief the earlier
victims of unconstitutional police practices. I have disagreed
on numerous occasions with applications of various
brands of this doctrine and I continue my dissent in
this case.2 My own view is that even-handed justice
requires either prospectivity only 3 or complete retro-
1 E.g., Eskridge v. Washington Prison Board, 357 U.S. 214 (1958);
Gideon v. Wainwright, 372 U.S. 335 (1963); Jackson v. Denno, 378
U. S. 368 (1964), (see also Desist v. United States, 394 U. S. 244,
250 n. 15 (1969)}; Reck v. Pate, 367 U. S. 433 (1961).
"Linkletter v. Walker, 381 U. S. 618, 640 (1965); Tehan v. Shott,
382 U. S. 406, 419 (1966); Johnson v. New Jersey, 384 U. S. 719,
736 ( 1966) ; Stovall v. Denno, 388 U. S. 293, 302 ( 1967) ; DeStef ano
v. Woods, 392 U. S. 631, 635 (1968); Desist v. United States, 394
U.S. 244,255 (1969); Halliday v. United State11, 394 U.S. 831,835
{1969); Mackey v. United States, 401 U.S. 667,713 (1971).
3 It was suggested in Stovall v. Denno, supra, at 301, that a
prospective-only holding would violate the Art. III requirement of
case or controversy. But see England v. Louisiana State Board of
Medical Examiners, 375 U. S. 411, 422 (1964), where the Court
exempted the petitioner from its holding. See also Johnson v. New
Jersey, supra, at 733.
ADAMS v. ILLINOIS 287
278 DOUGLAS, J., dissenting
activity. To me there is something inherently invidious
as Mr. Justice Harlan phrased it, in "[s]imply fishing one
case from the stream of appellate review, using it as a
vehicle for pronouncing new constitutional standards,
and then permitting a stream of similar cases subsequently
to flow by unaffected by that new rule .... "
Mackey v. United States, 401 U.S. 667,679 (1971) (separate
opinion). I agree with his critique, id., at 695,
that the purported distinction between those rules
that are designed to improve the factfinding process
and those designed to further other values was "inherently
intractable" and to illustrate his point he adverted
to the Court's difficulty in reconciling with its rule
such nonretroactivity cases as Johnson v. New Jersey,
384 U. S. 719 (1966); Stovall v. Denno, 388 U. S. 293
(1967), and DeStefano v. Woods, 392 U. S. 631 (1968),
all of which held nonretroactive decisions designed, in
part, to enhance the integrity of the factfinding process.
He also questioned the workability of any rule which requires
a guess as to "whether a particular decision has
really announced a 'new' rule at all or whether it has
simply applied a well-established constitutional principle."
Mackey v. United States, supra, at 695; Desist v.
United States, 394 U. S. 244, 263 (1969). For example,
as I suggest infra, at 293-295, a serious question arises in
this case whether Coleman v. Alabama, 399 U. S. 1
(1970) , should have been fully anticipated by state
judicial authorities.4
4 While I subscribe to many of the reservations expressed by Mr.
Justice Harlan, I nonetheless find his alternative rule of retrospectivity
unsatisfactory. In Mackey v. United States, 401 U. S. 667,
675 (1971) (separate opinion), he suggested that constitutional decisions
be retroactive as to all nonfinal convictions pending at the
time of the particular holdings, but that prisoners seeking habeas relief
should generally be treated according to the law prevailing at the
time of their convictions. It is on this latter score that I am
troubled. Surely it would be no more facile a task to unearth the
288 OCTOBER TERM, 1971
DoUGLAS, J., dissenting 405 U.S.
Additionally, it is curious that the plurality rule is
sensitive to "reasonable reliance" on prior standards by
law enforcement agencies but is unconcerned about the
state of Jaw of years past than it is to assign, under the plurality's
test, a degree of reasonableness to reliance on older standards by law
enforcement agencies. Where the question has arisen in this Court,
we have treated habeas petitioners by the modern law, not by older
rules. See Reck v. Pate, 367 U. S. 433 (1961) (habeas permitted on
basis of current law to release prisoner convicted in 1936). See also
Gideon v. Wainwright, 3i2 U.S. 335 (1963), and Jackson v. Denno,
378 U. S. 368 (1964), announcing new rules in habeas cases. Moreover,
as has been concluded by Professor Schwartz, the drawing of
a bright line between federal review through habeas and certiorari
would be unjustified:
"Where federal review of the constitutionality of state criminal
proceedings is concerned, the making of so sharp a distinction between
review on certiorari and habeas corpus is unwarranted. There
is often no significant difference with respect to age and potential
staleness between the two types of cases. Rather than corning years
after the conviction is final, habeas corpus is often but a routine step
in the criminal defense process-the normal step taken after certiorari
has been denied. Sometimes, it actually replaces certiorari, for in
Fay v. Noia [372 U. S. 391 (1963)] the Supreme Court advised
criminal defendants to skip certiorari and to petition directly to the
federal district court for habeas corpus. Even in situations in which
a defendant goes through all the direct review steps, it is often
nothing more than fortuitous circumstance which determines whether
his case is still on direct review or is on collateral attack when the
new decision comes down.
"The difference between review on certiorari and habeas corpus
seems even less significant when we look to function and actual
operation. Although it is sometimes considered the 'normal' method
for obtaining federal review of state convictions, certiorari does not
provide, as the Court remarked in Fay v. Noia, 'a normal appellate
channel in any sense comparable to the writ of error,' for the Court
must limit its jurisdiction to questions that have significance beyond
the immediate case. Habeas corpus, on the other hand, facilitates
the Court's task in those cases it does take by providing a record
focused exclusively on the federal constitutional question. Habeas
corpus has thus become the primary vehicle for immediate federal
ADAMS v. ILLINOIS 289
278 DouGLAS, J., dissenting
unfairness of arbitrarily granting relief to Coleman but
denying it to Adams.
Given my disagreement with the plurality's rule, I am
reluctant even to attempt to apply it, but even by its own
review of state convictions. Further, this development has resulted
in a gradual shrinking of what were once significant operational differences
between review on certiorari and habeas corpus, such as the
relationship to the state proceeding, the degree of independent factfinding
authority, and the significance of the defendant's violation
of state procedural rules. From both the functional and the operational
standpoints, then, it is justifiable to conclude that 'the
distinctions between hab.eas corpus proceedings and direct review are
largely illusory.'
"In addition, drawing a line between review [ on] certiorari and
habeas corpus undercuui the Supreme Court's bypass suggestion in
Fay v. Noia. If a defendant has doubts about the retroactivity of
any claim which might both affect him and be subject to Court review
in the foreseeable future, he will be well advised always to ignore
the Court's suggestion and to apply for certiorari. Many months
may pass before his petition for certiorari is rejected, and so long
as it is pending, he will be entitled to receive the benefits of any
intervening decisions. As soon as he files his petition for habeas
corpus, however, even if he does so only a day after the last state
court order is entered, he will have forfeited his right to such benefits.
He will thus be put to an election between delayed relief and no
relief at all.
"The inequity of drawing a sharp distinction between direct review
and habeas corpus is, however, only one aspect of a broader inequity:
treating two prisoners deprived of the same fundamental constitutional
right differently merely because the Supreme Court did not
get around to enunciating a particular right until after the conviction
of one of them had become final. Professor Mishkin argues
that worry about this point ignores 'the reasons for barring current
convictions and . . . the fact that the new rule in no way undermines
the earlier determinations of factual guilt.' To hit.a, it is as
if a guilty person were to complain of his lot because others equally
guilty were not prosecuted. And though he recognizes that such
claims are sometimes sustained, he concludes that 'there are certainly
rational bases for drawing a line between current convictions and
290 OCTOBER TERM, 1971
DOUGLAS, J., dissenting 405 U.S.
terms, the balancing approach would appear to require
that we hold Coleman retroactive. This conclusion reinforces
my fear that the process is too imprecise as a
neutral guide for either this Court or the lower courts
and will invariably permit retroactivity decisions to turn
on predilections, not principles.
I
In applying the rule, I am first troubled by the plurality's
adoption of the finding of the court below that:
"On [the) scale of probabilities, we judge that the
lack of counsel at a preliminary hearing involves less
danger to 'the integrity of the truth-determining process
at trial' than the omission of eounsel at the trial itself
or on appeal." Ante, at 282-283. The same might have
been said of the right to counsel at sentencing, Mempa
those previously final,' citing excerpts from Professors Bator and
Amsterdam on finality. Professor Mishkin's sharp distinction between
collateral attack and direct review thus rests ultimately on
finality considerations.
"Finality considerations seem especially weak where two cases
differ only in the fact that one is still on 'direct' review whereas the
other is not. Where the two cases are far apart in age, finality con-
Riderations are admittedly more persuasive. But even there, the
mere timing of the Court's decision to grant federal protection to a
fundamental right hardly seems to be a sufficient basis for unequal
treatment; after all, in most instances it was not the older prisoner's
fault that the Court did not render its decision earlier. To some
extent, of course, the question comes down to a choice between the
competing values of equality and repose, and choices of this sort are
notoriously immune to reasoned resolution. It will be suggested below,
however, that the threat to finality considerations from complete
retroactivity appears to have been greatly exaggerated, and if this
suggestion is well taken, Professor Mishkin's rejection of equality is
especially untenable." Schwartz, Retroactivity, Reliability, and Due
Process: A Reply to Professor Mishkin, 33 U. Chi. L. Rev. 719,
731-734 (1966).
ADAMS v. ILLINOIS 291
278 DouGLAS, J., dissenting
v. Rhay, 389 U. S. 128 (1967), at certain arraignments,
Hamilton v. Alabama, 368 U. S. 52 ( 196 I), or at preliminary
hearings where guilty pleas were taken, White
v. Maryland, 373 U.S. 59 (1963), all of which have been
held retroactive.5
Rather than reaching for these analogies, however, the
plurality suggests that the danger to the integrity of the
truth-determining process is no greater here than at a
pretrial lineup or at an interrogation conducted without
counsel. In relying on these analogies, the plurality gives
short shrift to the argument that "in practice [ the preliminary]
hearing may provide the defense with the most
valuable discovery technique available to him," Wheeler
v. Flood, 269 F. Supp. 194, 198 (EDNY 1967), an objective
which is not so readily achievable at lineups and interrogations
at which counsel serves only a protective
function. The State's access to superior investigative
resources and its ability to keep its case secret until trial
normally puts the defendant at a clear disadvantage.B
5 See McConnell v. Rhay, 393 U. S. 2 (1968) (Mempa retroactive);
Arsenault v. Massachusetts, 393 U. S. 5 (1968) (White and
Hamilton retroactive) .
6 The investigative advantage enjoyed by the State extends beyond
the prohibition of the common law against criminal discovery.
It also results from the fact that the police are usually first at the
scene of the crime, have access to witnesses with fresher recollections,
are authorized to confiscate removable evidence, are positioned to
conduct laboratory tests on physical evidence, enjoy a communication
channel with a complete undercover world of secret informers, have
an air of legitimacy which is conducive to cooperation by witnesses,
and have numerous ways to compel testimony even before trial.
See generally Norton, Discovery in the Criminal Process, 61 J.
Crim. L., C. & P. S. 11, 13-14 (1970); Comment, Criminal Law:
Pre-Trial Discovery-The Right of an Indigent's Counsel to Inspect
Police Reports, 14 St. Louis U. L. J. 310 (1969); Moore, Criminal
Discovery, 19 Hastings L. J. 865 (1968); A State Statute to
Liberalize Criminal Discovery, 4 Harv. J. Legis. 105 (1967); Comment,
Disclosure and Discovery in Criminal Cases: Where Are We
292 OCTOBER TERM, 1971
DOUGLAS, J., dissenting 405 U.S.
In light of this disparity, one important service the preliminary
hearing performs is to permit counsel to penetrate
the evidence offered by the prosecution at the
hearing, to test its strengths and weaknesses ( without
the presence of a jury), to learn the names and addresses
of witnesses, to focus upon the key factual issues in the
upcoming trial, and to preserve testimony for impeachment
purposes. The alternative discovery techniques
suggested now by the plurality are puny in comparison.
A bill of particulars can usually reach only prosecution
witnesses' names, and it may be cold comfort to defense
counsel to learn that he can obtain pretrial statements
of prosecution witnesses inasmuch as such statements are
of ten prepared from the State's viewpoint and have not
been subjected to cross-examination. And in many
States such statements are not discoverable.
Finally, when read in light of Coleman's exaltation
of the virtues of counseled preliminary hearings, the
present language of the plurality may lend itself to a
"credibility gap" between it and those involved in the administration
of the criminal process. "Plainly," said the
Coleman Court, "the guiding hand of counsel at the
preliminary hearing is essential to protect the indigent
accused against an erroneous or improper prosecution,"
Coleman v. Alabama, supra., at 9, and: "The inability
of the indigent accused on his own to realize these
advantages of a lawyer's assistance compels the conclusion
that the Alabama preliminary hearing is a
'critical stage' of the State's criminal process at which
the accused is 'as much entitled to such aid [ of counsel]
... as at the trial itself.'" Id., at 9-10. It will
Headed?, 6 Duquesne U. L. Rev. 41 (1967); Bibliography: Criminal
Discovery, 5 Tulsa L. J. 207 (1968); Symposium: Discovery
in Federal Criminal Cases, 33 F. R. D. 53 (1963); RrPnn:m, C::riminal
Prosecution: Sporting Event or Quest For Truth?,. 1963 Wash.
U. L. Q. 279.
ADAMS v. ILLINOIS 293
278 DOUGLAS, J., dissenting
now appear somewhat anomalous that the right to counsel
at a preliminary hearing is fundamental enough to
be incorporated into the Fourteenth Amendment but not
fundamental enough to warrant application to the victims
of previous unconstitutional conduct.7
II
I also believe that the plurality's case for establishing
good-faith reliance on "the old standards" by state judicial
systems ignores important developments in the
right-to-counsel cases prior to Coleman. First of all, no
decision of this Court had held that counsel need not be
afforded at the preliminary hearing stage. Therefore, to
build a case for good-faith reliance the State must wring
from our decision the negative implication that uncounseled
probable-cause hearings were permissible. Such
negative implications are found, says the plurality, in
Hamilton v. Alabama, 368 U.S. 52 (1961), and White v.
Maryland, 373 U. S. 59 ( 1963), cases reversing convictions
obtained through the use at trial of uncounseled guilty
pleas entered at preliminary hearings. Neither of those
decisions, however, faced the question of whether reversal
7 I am aware that the retroactivity theory presently commanding
a. Court permits a distinction between rules designed to fortify the
reliability of verdicts and rules designed to protect other values.
But here, as the plurality suggests, three of the four functions counsel
might serve at preliminary hearings would appear to enhance the
factfinding process: discovery of the State's case, preserving of
testimony of both hostile and favorable witnesses, and obtaining
release on bail. Although the plurality appears to discount the
investigative advantage of being free on bail, I believe that this
"traditional right to freedom before conviction permits the unhampered
preparation of a defense." Stack v. Boyle, 342 U. S. 1, 4
(1951). See also Kinney v. Lenon, 425 F. 2d 209, 210 (CA9 1970),
where the Court of Appeals found that "the appellant is the only
person who can effectively prepare his own defense," because the
incarcerated accused was the only person who could recognize witnesses
by sight who might have seen a scuffie.
294 OCTOBER TERM, 1971
DouGLAS, J., dissenting 405 U.S.
was required on the facts of the instant case. And,
though I have studied these two short opinions, I am
unable, as is the plurality, to divine any hidden message
to law enforcement agencies that we would permit the
denial of counsel at preliminary hearings where guilty
pleas were not taken. Rather, these cases reinforce, in
my mind, the importance of counsel at every stage in the
criminal process. In any event, by the time Coleman
came down, it was clear, as Mr. Justice Harlan opined,
albeit with some regret, that our holding was an inevitable
consequence of prior case law:
"If I felt free to consider this case upon a clean
slate I would have voted to affirm these convictions.
But-in light of the lengths to which the right to
appointed counsel has been carried in recent decisions
of this Court, see Miranda v. Arizona, 384
U. S. 436 (1966); United States v. Wade, 388 U. S.
218 (1967); Gilbert v. California, 388 U. S. 263
(1967); Mathis v. United States, 391 U.S. 1 (1968);
and Orozco v. Texas, 394 U. S. 324 (1969)-I consider
that course is not open to me with due regard
for the way in which the adjudicatory process of this
Court, as I conceive it, should work. . . .
"It would indeed be strange were this Court, having
held a suspect or an accused entitled to counsel at
such pretrial stages as 'in-custody' police investigation,
whether at the station house (Miranda) or even
in the home (Orozco), now to hold that he is left to
fend for himself at the first formal confrontation in
the courtroom." Coleman v. Alabama, supra, at
19-20 (separate opinion).8
8 To this list might have been added Roberts v. La Vallee, 389 U. S.
40 (1967), holding that the State must provide an indigent with a
preliminary hearing transcript in every circumstance in which the
more affluent accused could obtain one.
ADAMS v. ILLINOIS 295
278 DouGLAS, J., dissenting
Thus, in the instant case, at the times relevant, the State
should have foreseen that the right to counsel attached
to the probable-cause hearing.
III
I also disagree that " [ t)he impact upon the administration
of the criminal law of [ Coleman retroactivity) needs
no elaboration." Ante, at 284. In the 19 months since
Coleman was decided all new prosecutions have presumably
followed it and we therefore need only be concerned,
for impact purposes, with those state proceedings in
which a preliminary hearing was held prior to June
1970. Inasmuch as the median state sentence served
by felons when they are first released is about 20.9
months,9 most pre-Coleman sentences would now be
served and as a practical matter these former prisoners
would not seek judicial review. Moreover, we may exclude
from our consideration those 16 or more States
that prior to Coleman routinely appointed counsel at or
prior to preliminary hearings. See American Bar Association,
Project on Standards for Criminal Justice,
Providing Defense Services § 5.1 (Approved Draft 1968).
Additionally, we may exclude from consideration the
possibility of collateral challenges by federal prisoners
inasmuch as counsel have routinely been present at
preliminary hearings before federal commissioners.10
See Fed. Rule Crim. Proc. 5 (b).
While there are some current prisoners who might challenge
their confinements if Coleman were held retro-
9 Federal Bureau of Prisons, National Prisoner Statistics-Characteristics
of State Prisoners, 1960, pp. 26-27 (1965).
10 In this respect the instant case further differs from Stoval,l v.
Denno, 388 U. S., at 299, where it was found that: "The law enforcement
officials of the Federal Government and of all 50 States
have heretofore proceeded on the premise that the Constitution did
not require the presence of counsel at pretrial confrontations for
identification."
296 OCTOBER TERM, 1971
DOUGLAS, J., dissenting 405 U.S.
spective, many of these attacks would probably fail under
the harmless-error rule of Chapman v. California, 386
U. S. 18 (1967). The plurality opinion suggests that
conducting such harmless-error proceedings would be
onerous. One rea~on given is that in Illinois, for example,
preliminary hearings were not recorded before
Coleman. That assertion may not be entirely accurate
in light of the fact that this very record contains a transcript
of Adams' preliminary hearing. Perhaps, as the
respondent seems to concede,11 transcripts were made
available in other Illinois cases. That is the more reasonable
assumption in light of oμr holding in Roberts v.
LaVallee, 389 U.S. 40 (1967), that the State must provide
a preliminary hearing transcript to an indigent in
every circumstance in which the more affluent accused
could obtain one.
Even where a transcript was not available, however,
a prisoner might be able to show at an evidentiary hearing
that he was prejudiced by a particular need for discovery,
by the inability to preserve the testimony of
either an adverse or favorable witness, or by the inability
to secure his release on bail in order to assist in the
preparation of his defense.12 Courts are accustomed, of
course, to assessing claims of prejudice without the aid
of transcripts of previous proceedings, such as is required
by Jackson v. Denno, 378 U.S. 368 (1964), or Townsend
v. Sain, 372 U. S. 293 (1963). Indeed, in Coleman we
remanded for a determination of whether the failure to
appoint counsel had been harmless error. 399 U. S., at
11. Not every Coleman claim would warrant an evidentiary
hearing. Many attacks might be disposed of
summarily, such as a challenge to a conviction resulting
from a counseled guilty plea entered before any preJu-
11 Brief for Respondent 33.
12 See n. 7, supra.
ADAMS v. ILLINOIS 297
278 DouGLAS, J., dissenting
dice had materialized from an uncounseled preliminary
hearing. See Procunier v. Atchley, 400 U.S. 446 (1971).
Even Stovall Y. Denno, 388 U. S., at 299, the analogy
frequently invoked by the plurality, held out the possibility
of collateral relief in cases where prisoners could
show that their lineups had imposed "such unfairness
that [they] infringed [theirl right to due process of law."
Conducting Coleman harmless-error hearings would not
appear to be any more burdensome on the administration
of criminal justice than have Stovall "fundamental fairness"
post-conviction proceedings.
In any event, whatever litigation might follow a holding
of Coleman retrospectivity must be considered part
of the price we pay for former failures to provide fair
procedures.
298 OCTOBER TERM, 1971
Syllabus 405 u. s.
UNITED STATES v. MISSISSIPPI CHEMICAL
CORP. ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 70---52. Argued January 10, 1972-Decided March 6, 1972
Respondent ta.xpayers are cooperative associations within the meaning
of the Agricultural Marketing Act, and thus qualify for membership
in one of the Banks for Cooperatives established by the
Farm Credit Act of 1933, which provides that members may
borrow money from their Banks. Respondents secured membership
in the New Orleans Bank and elected to borrow. They were
required by the Farm Credit Act of 1955 to make quarterly
purchases of $100 par value Class C stock of the Bank equal to
not less than 10% nor more than 25% of the amount of the
quarterly interest paid to the Bank on their loans. During
the relevant period the rate set by the Bank was 15%. Respondents
claimed a $99 interest expense deduction on their tax returns
for each $100 stock purchase required by the statute. The deductions
were disallowed and respondents filed this suit for refunds.
The Government contended that the stock is a capital asset as
defined by 26 U. S. C. § 1221, and is nondeductible, while respondents
asserted that the purchase price is part of "the amount [they]
contracted to pay for the use of the borrowed money," and is
deductible as interest. The District Court found for the respondents
and the Court of Appeals affirmed. Held: It is clear from
the legislative scheme that the Class C stock is a capital asset
having a long-term value. Its cost is, therefore, not deductible as
an interest expense. Pp. 302--312.
431 F. 2d 1320, reversed and remanded.
MARSHALL, J., delivered the opinion of the Court, in which all
Members joined except BLACKMUN, J., who took no part in the
consideration or decision of the case.
Matthew J. Zinn argued the cause for the United
States. With him on the briefs were Solicitor General
Griswold, Assistant Attorney General Walters, Thomas
L. Stapleton, and Leonard J. Henzke, Jr.
UNITED STATES v. MISSISSIPPI CHEMICAL CORP. 299
298 Opinion of the Court
John C. Satterfield argued the cause for respondents.
With him on the brief was J. Dudley Buford.
Mac Asbill, Jr., Harold S. Cook, D. Jeff Lance, and
William W. Beckett filed a brief for Agway, Inc., et al.
as amici curiae urging affirmance.
MR. JusTICE MARSHALL delivered the opinion of the
Court.
Mississippi Chemical Corp. and Coastal Chemical
Corp. (hereinafter taxpayers) instituted this action for
a tax refund in the United States District Court for
the Southern District of Mississippi. Both taxpayers
are "cooperative associations" within the meaning of
§ 15 of the Agricultural Marketing Act, 46 Stat. 18, as
amended, 12 U. S. C. § 114lj, and thus qualify for
membership in one of the 12 "Banks for Cooperatives"
(hereinafter Bank(s)) established by the Farm
Credit Act of 1933, 48 Stat. 257, as amended, 12 U.S. C.
§ 1134 et seq. Since their principal places of business
are located in Mississippi, their regional Bank is the one
located in New Orleans.
The Farm Credit Act of 1933 provides that members
may borrow money from their Banks and, soon after
securing membership in the New Orleans Bank, the
taxpayers elected to borrow.1 Thereafter, they were
required by the Farm Credit Act of 1955, 69 Stat. 656,
12 U. S. C. § 1134d (a)(3), which partially amended
the 1933 Act, to make quarterly purchases of $100 par
value Class C stock of the Bank equal to not less
than 10% nor more than 25% of the amount of the
quarterly interest that they paid to the Bank on
1 Mississippi Chemical Corp. acquired the share of stock qualifying
it as a borrower in 1956; Coastal Chemical Corp. acquired its
qualifying share in 1957.
300 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
their loans. During the period relevant to this lawsuit,
the rate set by the Bank was 15%.2
On their tax returns for the years in question, the
taxpayers claimed a $99 interest expense deduction for
every $100 stock purchase required by the statute.3
The Commissioner of Internal Revenue disallowed the
deductions, the taxpayers paid the assessed deficiencies,
and this action arose.
The United States has consistently contended that
the stock that the taxpayers were required to purchase
under the 1955 Act is a capital asset as defined
by § 1221 of the Internal Revenue Code, 26 U. S. C.
§ 1221, and that its cost is nondeductible. See 26 U.S. C.
263. The taxpayers have persistently urged that the
money expended for this stock is part of "the amount
[they] ... contracted to pay for the use of borrowed
money," Old Colony R. Co, v. Commissioner, 284 U. S.
552, 560 (1932), and is deductible as interest. 26
U. S. C. § 163 (a).
The District Court found for the taxpayers 4 and the
United States Court of Appeals for the Fifth Circuit affirmed
over the dissent of Judge Godbold. 431 F. 2d 1320
(1970). We granted certiorari on February 22, 1971,
to review the decision of the Court of Appeals. 401 U.S.
908. We reverse for the reasons stated below.
2 Mississippi Chemical Corp. challenges the Government's tax
treatment of $55,113.19 spent from 1961 to 1963; Coastal Chemical
Corp. challenges the treatment of $211,799.68 expended from 1958
to 1963.
3 One dollar was treated as the cost of acquiring a capital asset.
4 This decision is unreported but is found in App. 342-346.
Other lower courts have split on the issue presented. Compare, e. g.,
M. F. A. Central Cooperative v. BookwaUer, 427 F. 2d 1341 (CA8
1970), rev'g 286·F. Supp. 956 (ED Mo. 1968), pet. for cert. pending
(No. 70-22), with Penn Yan Agway Cooperative, Inc. v. United
States, 189 Ct. CI. 434, 417 F. 2d 1372 (1969).
UNITED STATES v. MISSISSIPPI CHEMICAL CORP. 301
298 Opinion of the Court
I
Early in this century, Congress recognized that
farmers had a tremendous need for long-term capital at
low interest rates. This led to the enactment of the
Federal Farm Loan Act of 1916, 39 Stat. 360, as
amended, 12 U. S. C. § 641 et seq. The immediate purpose
of the bill was "to afford those who [were] engaged
in farming or who desire[d] to engage in that occupation
a vastly greater volume of land credit on more
favorable terms and at materially lower and more nearly
uniform interest rates than [were] present[ly] available."
H. R. Rep. No. 630, 64th Cong., 1st Sess., 2. The longrange
purpose was to stimulate and foster a cooperative
spirit among farmers who, it was hoped, would work
together to seek agricultural improvements which they
would finance themselves. Id., at 2-3; S. Rep. No.
144, 64th Cong., 1st Sess., 5.
The 1916 Act divided the United States into 12
regional districts under the general supervision of a
Federal Farm Loan Board. Each district contained a
federal land bank designed to loan money to farmers
at low interest rates. Persons desiring to borrow were
required to organize into groups of 10 or more which
were called "national farm loan associations." Sec. 7,
39 Stat. 365.
In order to borrow from the district bank, an association
had to establish that each of its members was an
owner or a prospective owner of a farm, that the loan
desired by each member was not less than $100 nor
more than $10,000, and that the aggregate of the loans
was not less than $20,000. Each association also had
to subscribe for capital stock of the bank in the amount
of 5% of the total loan sought by its members. The
302 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
association, in turn, was required to compel each of its
members to purchase stock in the association equal to
5% of the amount of the loan sought by that member.
Hence, there were two separate levels of cooperative
association.5
The legislative history and the language of the Act
itself indicate that Congress faced somewhat of a
dilemma in structuring the land bank system. On the
one hand, there was a strong congressional desire to
stimulate a privately controlled, privately owned, and
privately financed program based upon the cooperative
efforts of dedicated farmers. This desire was effectuated
in large measure in the stock-purchase requirements
discussed above. On the other hand, Congress realized
that without federal help, the existing plight of the
farmers would probably render them unable to support
the system themselves, and it would thus be doomed
to failure:
"The greatest difficulty in the establishment of
a rural-credit system, based upon the cooperative
principle, is met in connection with the inauguration
of the system. Ample capital is absolutely
necessary at the start and whatever sums the first
borrowers might be able to contribute would in no
wise suffice to get the system into succes.5ful operation.
The system must be endowed, temporarily
at least, with capital from sources other than the
subscriptions to capital stock among the borrowers."
H. R. Rep. No. 630, 64th Cong., 1st Sess., 9.
Accord, S. Rep. No. 144, 64th Cong., 1st Sess., 4.
5 The statute also provided that "joint stock land banks" could be
formed. These were corporations, composed of 10 or more persons,
who desired to form banks to loan money to farmers without the
aid of congressional financing. They were subject to the same restrictions
and conditions imposed on the district land banks.
UNITED STATES v. MISSISSIPPI CHEMICAL CORP. 303
298 Opinion of the Court
To resolve the dilemma, Congress provided for temporary
public financing without charge to supplement
the stock-purchase requirements of the statute. Congress
also provided that each land bank must periodically
increase its capital shares in order to achieve the goal
of private ownership of the system, and to repay the
temporary federal financing.
The land bank system remained virtually untouched"
until the economic depression of the 1930's when Congress
determined that more action was needed to aid
farmers in establishing privately owned institutions designed
to provide ready sources of long-term credit.
The Farm Credit Act of 1933 was passed to supplement
the 1916 legislation. It established, inter alia, regional
Banks for Cooperatives in each of the 12 land bank
districts and a Central Bank for Cooperatives in Washington,
D. C.1
These Banks were authorized to make loans to "cooperative
associations," defined as "association [s] in
which farmers act together in processing, preparing for
market, handling, and/or marketing the farm products
of persons so engaged, and also . . . association [ s] in
which farmers act together in purchasing, testing, grading,
processing, distributing, and/ or furnishing farm supplies
and/ or farm business services." Agricultural Marketing
Act § 15, 46 Stat. 18, as amended, 12 U. S. C.
§ 114lj.
The new Banks paralleled in many ways those already
established under the 1916 legislation. The same re-
6 While Congress did not disturb the land bank system, it added
to it at various times. For example, Title II of the Agricultural
Credits Act of 1923, 42 Stat. 1461, 12 U. S. C. § 1151 et seq. (1958
ed.), was designed to aid farmers in obtaining short-term credit.
7 The Act also established a production credit system to improve
short-term financing for farmers. That system has no bearing on
this case.
304 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
gional districts were used, many of the same persons
were eligible for loans from both institutions, and borrowers
from both banks were required to be stockholders.
The 1933 Act required cooperative associations to own,
at the time a loan was made, an amount of stock in
the Bank for Cooperatives equal in fair book value
(not to exceed par value) to $100 per $2,000 of the
amount of the loan, or 5o/o, the same amount of stock
required of borrowers from land banks under the 1916
Act.
One notable difference between the 1916 and the 1933
Acts was that the latter did not regulate the membership
of the cooperative association to any great degree.
For example, members of cooperative associations did
not have to own stock in the associations, only in the
Banks; they did not have to borrow a minimum amount;
and they did not have to be. farm owners or prospective
farm owners, but could be processors, handlers,
testers, or marketers. This is in sharp contrast to the
stringent requirements of the 1916 legislation. Another
notable difference is that Congress invested substantially
more money in the 1933 program ($110,000,000)
than it had invested in the land banks ($9,000,000).
See S. Rep. No. 1201, 84th Cong., 1st Sess., 5, 7.
As time passed, Congress watched the land bank
system develop as planned. The temporary Government
capitalization that had solidified the program
in its inception was gradually replaced by private capital,
and by the end of 1947, the Government's capital
had been completely returned. S. Doc. No. 7, 84th
Cong., 1st Sess., 4; S. Rep. No. 1201, 84th Cong., 1st
Sess., 7. The land banks became totally private concerns-
owned, operated, and financed by farmers without
Government assistance.
Congress also watched the development of the Banks
for Cooperatives and became concerned about their lack
UNITED STATES v. MISSISSIPPI CHEMICAL CORP. 305
298 Opinion of the Court
of success in attracting and keeping private investment.
By the 1950's, the Government still retained over 88%
of the stock in the Banks. In 2 of the Farm Credit Act
of 1953, 67 Stat. 390, 12 U. S. C. § 636a, Congress
stated that "[i]t is declared to be the policy of the
Congress to encourage and facilitate increased borrower
participation in the management, control, and ultimate
ownership of the permanent system of agricultural credit
made available through institutions operating under the
supervision of the Farm Credit Administration . . . ."
A Federal Farm Credit Board was created for the purpose,
inter alia, of making recommendations concerning
the best way to convert the Banks for Cooperatives from
predominantly Government-owned to predominantly
privately owned institutions.
The result of the Board's report and recommendations
was the Farm Credit Act. of 1955, 69 Stat. 655.
It sought to effectuate Congress' policy by providing
for the orderly withdrawal of Government capital from
the Banks and the continual influx and retention of
substitute private financing. See S. Doc. No. 7, 84th
Cong., 1st Sess., 6; S. Rep. No. 1201, 84th Cong., 1st
Sess., 1; Hearings on Farm Credit Act of 1955 before
the House Committee on Agriculture, 84th Cong., 1st
Sess., 30-31.
II
Under the Farm Credit Act of 1933, there was only
one class of capital stock in the Banks for Cooperatives.
The Farm Credit Act of 1955 provided for three distinct
classes of stock-A, B, and C.
Class A stock may only be held by the Governor
of the Farm Credit Association on behalf of the United
States. Whatever stock the Government held in the
Banks prior to the 1955 Act was converted to Class A
stock. This stock is nonvoting and receives no divi306
OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
dends. Class A stock must be retired each year in
an amount equal to the amount of Class C stock
issued during the year. 12 U. S. C. § 1134d (a) (1).
Once the United States' stock is completely redeemed,
the Government will invest no more in the Banks,
except that it may purchase additional shares of the
Class A stock if an emergency makes it necessary
in order for the bank to meet the credit needs of eligible
borrowers." See 12 U. S. C. §§ 1134d (a) (1), 1134b,
1134i.
Class B stock represents a new approach to capitalizing
the Banks. It is an investment stock available
to the pub1ic. It pays noncumulative dividends upon
certain conditions. Class B stock may be retired only
after all Class A stock. 12 U. S. C. § 1134d (a)(2).9
Class C stock may be issued only to farmers' cooperative
associations, except that each regional bank
is required to purchase such shares from the Central
Bank. This stock may be obtained under four circumstances.
One share is required to initially qualify
any association as a borrower of a regional Bank. Each
borrower must then make the quarterly stock purchases
which gave rise to this lawsuit. In addition, 12 U. S. C.
§ 1134l (b) provides that after certain expenditures are
made each year, patronage refunds may be allocated
to borrowers in the form of Class C stock. "All
patronage refunds shall be paid in the proportion that
the amount of interest earned on the loans of each
8 There is evidence in the record that the Government capital is
being revolved out of the Banks just as Congress anticipated. See
Farm Credit Administration, Banks for Cooperatives-A Quarter of
a Century of Progress, excerpted in App. 157, 175. See also 431 F.
2d 1320, 1332, and n. 17 (Godbold, J., dissenting); Brief for the
United States 7.
9 The Class B shares are of only nominal importance, In 1963,
they amounted to only some 5% of the total outstanding stock of
the New Orleans Bank.
UNITED STATES v. MISSISSIPPI CHEMICAL CORP. 307
298 Opinion of the Court
borrower bears to the total interest earned on the loans
of all borrowers during the fiscal year." Ibid.10 Borrowers
also receive at the end of each fiscal year an
"allocated surplus" credit which is payable out of the
Bank's net savings. Like patronage refunds, allocated
surplus is credited to each member in accordance with
the proportion that the interest on its loans bears to
the interest on all loans. When the surplus account
reaches 25% of the total outstanding capital stock of
the Bank, the excess may be distributed to members
in the form of Class C stock.
Only the tax treatment of the quarterly purchases
is disputed here.11 The taxpayers correctly note that
the Class C stock has attributes which would make
a normal commercial stock undesirable. For example,
the C stock pays no dividends; 12 it is transferable
10 The patronage refunds and . the allocated surplus, discussed
infra, ate not a return on the amount of capital that the borrower
contributes to the Bank; they are distributions of earnings, not
presently convertible to cash, but are eventually convertible just as
the quarterly Class C purchases may eventually be redeemed.
11 The Government contended in the District Court that the taxpayers
should have reported the patronage dividends as income.
The District Court disagreed and the Government did not appeal
this point. It is not, therefore, reviewable here, and the Government
does not urge that we consider it.
12 While no formal dividends are paid on the C stock, it is
apparent that the patronage dividend is in many ways equivalent
to the traditional corporate dividend. As noted above, the patronage
dividend is not immediately convertible to cash, but it is far frum
worthless. Like the usual corporate dividends, the patronage dividends
are paid in proportion to stock ownership. Stock ownership is
apportioned according to the amount a Bank member borrows.
Thus, those who borrow the most own the most stock and receive the
most patronage dividends (and surplus as well). As the Class A
stock and the earlier issued Class B and Class C stock are redeemed,
the C stock issued as dividends will become convertible to
cash and its value will be realized at that time.
In the event of a default by a borrower, the Class C stock is
308 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
only between cooperatives and only under rare circumstances;
additional shares do not provide additional
voting power; '3 and the stock cannot be redeemed until
all A, all B issued earlier or in the same year, and all
earlier issued C shares have been called for redemption.
These characteristics render the market for C shares
virtually nonexistent.
It must be remembered, however, that the stock was
intentionally given these characteristics by a Congress
with definite goals in mind.14 The legislative history of
the Farm Credit Act of 1955 indicates that Congress
placed much of the blame for the Bank's inability to
set off against the amount of the loan. Hence, the more patronage
dividends the member receives, the .more security he has in case
of default.
13 Cooperative associations are entitled to vote in polls designating
nominees for appointment to the Federal Farm Credit Board, established
by the Farm Credit Act of 1953, 67 Stat. 390, as amended, 12
U. S. C. § 636c, to help effectuate congressional policy; to vote in the
nomination polls and elections of members of district farm credit
boards established by the Farm Credit Act of 1937, 50 Stat. 703, 12
U. S. C. § 640a; and to vote in the nomination and elections of directors
of the Central Bank for Cooperatives. It is normal for every
member of a cooperative to have only one vote, irrespective of a
disparity between the shares held. See Frost v. Corporation Comm'n,
278 U. S. 515, 536-537 (1929) (Brandeis, J., dissenting); I. Packel,
The Law of Cooperatives §§ 23-24 (a), pp. 136-140 (3d ed. 1956).
It is interesting that the Capper-Volstead Act, 42 Stat. 388, 7 U.S. C.
§§ 291-292, permits a cooperative marketing association immunity
from the Sherman Act under some circumstances, but only if no
member is entitled to more than one vote.
14 Cooperatives and corporations operate on different principles.
Whereas the corporate structure separates control and management,
the essence of a cooperative requires that these functions be integrated.
And, whereas the value of corporate stock depends on
ease of transferability (or marketability), the value of cooperative
stock lies in the durable, long-term nature of the investment. See
Nieman, Revolving Capital in Stock Cooperative Corporations, 13
Law & Contemp. Prob. 393 (1948).
UNITED STATES v. MISSISSIPPI CHEMICAL CORP. 309
298 Opinion of the Court
repay the capital extended by the Government and to
retain private capital on the provision in the 1933 legislation
which permitted borrowers to redeem their stock
for cash upon paying off their loans. The restrictions
on redemption and transferability and the dividend prohibition
were designed to obviate this difficulty and to
provide both a stable membership and permanent capital,
two necessities for the success of any cooperative
venture.
III
The taxpayers do not seek to deduct the cost of their
initial shares in the Bank as interest. They accept the
fact that these shares represent one cost of membership
and that this cost is a capital expense because membership
is a valuable asset in more than one taxable year.
But, they argue that once they· purchased their initial
shares, they obtained full membership rights, and,
a fortiori, that Congress must have intended the quarterly
expenditures for stock to be a charge for borrowing
money since the stock has no value. The fact is, however,
that the stock purchased quarterly is indeed valuable.
The amounts paid for C shares become part
of the permanent capital structure of the Bank, thereby
increasing the stability of the Bank and insuring its
continued ability to extend credit. Each share also provides
an opportunity for more patronage and surplus
dividends, an ultimate right of redemption, and an asset
that may be used as a set-off in case of a default on the
loan. In sum, every share of stock purchased quarterly
by the taxpayers is nearly as valuable as the shares
purchased initially. It is therefore difficult to understand
why these different purchases should receive radically
different tax treatment. If Congress had required
1,000 or 100,000 shares of Class C stock to be pur310
OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
chased before an association could borrow from the
Banks, under the taxpayers' theory of the case the cost
of those shares would be a nondeductible capital expense.
Simply because Congress eased the burden on farmers
by spreading the requirement of capital investment over
a period of time rather than requiring it as a prerequisite
to borrowing, the taxpayers are entitled to no more
favorable tax treatment.
It is important not to lose sight of the congressional
purposes in enacting the farm credit legislation. The
immediate goal was to provide loans to farmers at low
interest rates. It would, therefore, be odd for Congress
to provide a "hidden" interest charge in the legislation.
The long-range goal was to make the Banks "fully cooperative
and to place full ownership and responsibility
for their operations and success in the hands of those
eligible to borrow from them." Hearings on Farm Credit
Act of 1955 before a Subcommittee of the Senate Committee
on Agriculture and Forestry, 84th Cong., 1st
Sess., 60. Congress felt, in light of its experience under
the Farm Credit Act of 1933, that the long-range goal
could only be achieved if Bank members made longterm
investments ih the Banks. Hence, Congress created
Class C stock. a security with a special value in
cooperative ventures. While this security is sui generis,
the congressional scheme makes it clear that it has
value over the long run.
Since the security is of value in more than one taxable
year, it is a capital asset within the meaning of § 1221
of the Internal Revenue Code, and its cost is nondeductible.
Cf. Commissioner v. Lincoln Savings & Loan Assn.,
403 U.S. 345 (1971); Old Colony R. Co. v. United States,
284 U. S. 552 (1932); 26 CFR § 1.461-1.
We reject the contention that while the Class C
UNITED STATES v. MISSISSIPPI CHEMICAL CORP. 311
298 Opinion of the Court
stock may be a capital asset, it is worth only $1,15 and
that the additional $99 paid for each share must represent
interest. Were we dealing with the traditional
corporate structure in this case, the taxpayers' argument
would have strength. But, as we have pointed out previously,
the essential nature of cooperatives and corporations
differs. The value of the Class C stock derives
primarily from attributes other than marketability. The
stock has value because it is the foundation of the cooperative
scheme; it insures stability and continuity.
The stock also has value because it enables the farmers
to work together toward common goals. It enables them
to share in a venture of common concerns and to reap
the rewards of knowing that they can finance themselves
without the assistance of the Federal Government. It
is perhaps debatable whether these attributes should
properly be valued at $100 per share, but we are not
called upon merely to resolve a question of valuation.
Rather, we must decide whether it is artificial to characterize
these unique expenditures as payments for a
capital asset. We find that it is not.
The taxpayers and the Government each allege that
the other is looking at form rather than substance. At
some point, however, the form in which a transaction
is cast must have considerable impact. Guterman, Substance
v. Form in the Taxation of Personal and Business
Transactions, N. Y. U. 20th Inst. on Fed. Tax. 951 (1962).
1 ~ It is by no means clear that the Class C stock is worth
only $1 even under a traditional market value analysis. The lower
courts failed to include the value of the patronage and surplus
dividends in computing the value of the quarterly purchases. The
Class C stock may, therefore, be worth considerably more than
$1, although the Government concedes that it. is not worth $100.
Because of the result we reach in this case, we have no occasion
to make a final determination as to what value the stock would
have under a market-value analysis.
312 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Congress chose to make the taxpayers buy stock; Congress
determined that the stock was worth $100 a share;
and this stock was endowed with a long-term value.
While Congress might have been able to achieve the same
ends through additional interest payments, it chose the
form of stock purchases. This form assures long-term
commitment and has bearing on the tax consequences
of the purchases.
Accordingly, the decision of the Court of Appeals is
reversed and the case is remanded with direction that
judgment be entered for the United States.
It is so ordered.
MR. JUSTICE BLACKMUN took no part in the consideration
or decision of this case.
RABE v. WASHINGTON 313
Per Curiam
RABE v. WASHING TON
CERTIORARI TO THE SUPREME COURT OF WASHINGTON
No. 71-247. Argued February 29, 1972-Decided March 20, 1972
Petitioner was convicted of violating Washington's obscenity statute
for showing a sexually frank motion picture at a drive-in theater.
In affirming his conviction, the Washington Supreme Court did
not hold that the film was obscene under the standards of Roth v.
United States, 354 U. S. 476, and Memoirs v. MMsachw;etts,
383 U. S. 413, but that it was obscene in "the context of its exhibition"
at a drive-in. The statute proscribing the knowing display
of "obscene" films did not mention the location of the
exhibition as an element of the offense. Held: A State may not
criminally punish the exhibition of a motion picture film at a
drive-in theater where the statute assertedly violated has not given
fair notice that the location of the exhibition was a vital element
of the offense.
79 Wash. 2d 254, 484 P. 2d 917, reversed.
William L. Dwyer argued the cause and filed briefs
for petitioner.
Curti,s Ludwig argued the cause for respondent. With
him on the brief was Herbert H. Davis.
Briefs of amici curiae urging reversal were filed by
Stanley Flei,shman and Sam Rosenwein for the National
Association of Theatre Owners, Inc., and by Loui.s Nizer
and James Bouras for the Motion Picture Association
of America, Inc.
Constantine Regusi,s filed a brief for Morality m
Media, Inc., as amicus curiae, urging affirmance.
PER CURIAM.
Petitioner was the manager of the Park Y Drive-In
Theatre in Richland, Washington, where the motion picture
Carmen Baby was shown. The motion picture
is a loose adaptation of Bizet's opera Carmen, con314
OCTOBER TERM, 1971
Per Curiam 405 U.S.
taining sexually frank scenes but no instances of sexual
consummation are explicitly portrayed. After viewing
the film from outside the theater fence on two successive
evenings, a police officer obtained a warrant and arrested
petitioner for violating Washington's obscenity statute.
Wash. Rev. Code § 9.68.010. Petitioner was later convicted
and, on appeal, the Supreme Court of Washington
affirmed. 79 Wash. 2d 254, 484 P. 2d 917 (1971). We
granted certiorari. 404 U. S. 909. We reverse petitioner's
conviction.
The statute under which petitioner was convicted,
Wash. Rev. Code § 9.68.010, made criminal the knowing
display of "obscene" motion pictures:
"Every person who---
"(1) Having knowledge of the contents thereof
shall exhibit, sell, distribute, display for sale or distribution,
or having knowledge of the contents
thereof shall have in his possession with the intent
to sell or distribute any book, magazine, pamphlet,
comic book, newspaper, writing, photograph, motion
picture film, phonograph record, tape or wire
recording, picture, drawing, figure, image, or any
object or thing which is obscene; or
"(2) Having knowledge of the contents thereof
shall cause to be performed or exhibited, or shall
engage in the performance or exhibition of any show,
act, play, dance or motion picture which is obscene;
"Shall be guilty of a gross misdemeanor."
In affirming petitioner's conviction, however, the Supreme
Court of Washington did not hold that Carmen
Baby was obscene under the test laid down by this
Court's prior decisions. E. g., Roth v. United States,
354 U.S. 476; Memoirs v. Massachusetts, 383 U.S. 413.
Uncertain "whether the movie was offensive to the standards
relating to sexual matters in that area and whether
RABE v. WASHINGTON 315
313 Per Curiam
the movie advocated ideas or was of artistic or literary
value," the court concluded that if it "we~e to apply the
strict rules of Roth, the film 'Carmen Baby' probably
would pass the definitional obscenity test if the viewing
audience consisted only of consenting adults." 79 Wash.
2d, at 263, 484 P. 2d, at 922. Respondent read the
opinion of the Supreme Court of Washington more narrowly,
but nonetheless implied that because the film had
"redeeming social value" it was not, by itself, "obscene"
under the Roth standard. The Supreme Court of Washington
nonetheless upheld the conviction, reasoning that
in "the context of its exhibition," Carmen Baby was
obscene. Ibid.
To avoid the constitutional vice of vagueness, it is
necessary, at a minimum, that a statute give fair notice
that certain conduct is proscribed. The statute under
which petitioner was prosecuted, however, made no mention
that the "context" or location of the exhibition was
an element of the offense somehow modifying the word
"obscene." Petitioner's conviction was thus affirmed
under a statute with a meaning quite different from the
one he was charged with violating.
"It is as much a violation of due process to send an
accused to prison following conviction of a charge on
which he was never tried as it would be to convict
him upon a charge that was never made." Cole v.
Arkansas, 333 U. S. 196, 201. Petitioner's conviction
cannot, therefore, be allowed to stand. Gregory v. City
of Chicago, 394 U.S. 111; Garner v. Loui,siana, 368 U.S.
157; Cole v. Arkansas, supra.
Under the interpretation given § 9.68.010 by the Supreme
Court of Washington, petitioner is criminally
punished for showing Carmen Baby in a drive-in but
he may exhibit it to adults in an indoor theater with
impunity. The statute, so construed, is impermissibly
vague as applied to petitioner because of its failure to
316 OCTOBER TERM, 1971
BURGER, C. J., concurring 405 u. s.
give him fair notice that criminal liability is dependent
upon the place where the film is shown.
What we said last Term in Cohen v. California, 403
U. S. 15, 19, answers respondent's contention that the
peculiar interest in prohibiting outdoor displays of sexually
frank motion pictures justifies the application of
this statute to petitioner:
"Any attempt to support this conviction on the
ground that the statute seeks to preserve an appropriately
decorous atmosphere in the courthouse
where Cohen was arrested must fail in the absence
of any language in the statute that would have put
appellant on notice that certain kinds of otherwise
permissible speech or conduct would nevertheless,
under California law, not be tolerated in certain
places. . . . No fair reading of the phrase 'offensive
conduct' can be said sufficiently to inform the ordinary
person that distinetions between certain locations
are thereby created."
We need not decide the broad constitutional questions
tendered to us by the parties. We hold simply that a
State may not criminally punish the exhibition at a
drive-in theater of a motion picture where the statute,
used to support the conviction, has not given fair notice
that the location of the exhibition was a vital element of
the offense.
The judgment of the Supreme Court of Washington is
Reversed.
MR. CHIEF JUSTICE BuRGER, with whom MR. JUSTICE
REHNQUIST joins, concurring.
I concur solely on the ground that petitioner's conviction
under Washington's general obscenity statute
cannot, under the circumstances of this case, be sustained
consistent with the fundamental notice requirements of
RABE v. WASHINGTON 317
313 BURGER, C. J., concurring
the Due Process Clause. The evidence in this case, however,
revealed that the screen of petitioner's theater was
clearly visible to motorists passing on a nearby public
highway and to 12 to 15 nearby family residences. In
addition, young teenage children were observed viewing
the film from outside the chain link fence enclosing the
theater grounds. I, for one, would be unwilling to hold
that the First Amendment prevents a State from prohibiting
such a public display of scenes depicting explicit
sexual activities if the State undertook to do so under a
statute narrowly drawn to protect the public from potential
exposure to such offensive materials. See Redrup
V. New York, 386 u. s .. 767 (1967).1
Public displays of explicit materials such as are described
in this record are not significantly different from
any noxious public nuisance traditionally within the
power of the States to regulate and prohibit, and, in my
view, involve no significant countervailing First Amendment
considerations.2 That this record shows an offensive
nuisance that could properly be prohibited, I
have no doubt, but the state statute and charge did not
give the notice constitutionally required.
1 For examples of recent statutes regulating public displays, see
Ariz. Rev. Stat. Ann. § 13-537 (Supp. 1971-1972); N. Y. Penal Law
§§ 245.10--245.11 (Supp. 1971-1972).
2 Under such circumstances, where the very method of display
may thrust isolated scenes on the public, the Roth v. United States,
354 U.S. 476, 489 (1957), requirement that the materials be "taken
as a whole" has little relevance. For me, the First Amendment must
be treated in this context as it would in a libel action: if there is some
libel in a book, artirle, or speech we do not average the tone and
tenor of the whole; the libelous part is not protected.
318 OCTOBER TERM, 1971
Per Curiam 405 u. s.
WILLIS v. PRUDENTIAL INSURANCE COMPANY
OF AMERICA
CERTIORARI TO THE SUPREME COURT OF GEORGIA
::-.ro. 70-5344. Argued February 28, 1972-Decided March 20, 1972
227 Ga. 619, 182 S. E. 2d 420, affirmed by an equally divided Court.
E. Freeman Leverett argued the cause and filed a
brief for petitioner.
A. Felton Jenkins, Jr., argued the cause for respondent.
With him on the brief was Woodrow W. Lavender.
PER CuRIAM.
The judgment is affirmed by an equally divided Court.
MR. JusTICE POWELL took no part in the consideration
or decision of this case.
CRUZ v. BETO 319
Per Curiam
CRUZ v. BETO, CORRECTIONS DIRECTOR
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 71-5552. Decided March 20, 1972
Petitioner prisoner, an alleged Buddhist, complained that he was not
allowed to use the prison chapel, that he was prohibited from
writing to his religious advisor, and that he was placed in solitary
confinement for sharing his religious material with other prisoners.
The Federal District Court denied relief without a hearing or
findings, holding the complaint to be in an area that should be
left "to the sound discretion of prison administration." The Court
of Appeals affirmed. Held: On the basis of the allegations, Texas
has discriminated against petitioner by denying him a reasonable
opportunity to pursue his Buddhist faith comparable to that offered
other prisoners adhering to conventional religious precepts,
and the cause is remanded for a hearing and appropriate findings.
Certiorari granted; 445 F. 2d 801, vacated and remanded.
PER CuRIAM.
The complaint, alleging a cause of action under 42
U. S. C. § 1983, states that Cruz is a Buddhist, who is
in a Texas prison. While prisoners who are members
of other religious sects are allowed to use the prison
chapel, Cruz is not. He shared his Buddhist religious
material with other prisoners and, according to the allegations,
in retaliation was placed in solitary confinement
on a diet of bread and water for two weeks, without access
to newspapers, magazines, or other sources of news.
He also alleged that he was prohibited from corresponding
with his religious advisor in the Buddhist sect. Those
in the isolation unit spend 22 hours a day in total idleness.
Again, according to the allegations, Texas encourages
inmates to participate in other religious programs, providing
at state expense chaplains of the Catholic, Jewish,
and Protestant faiths; providing also at state expense
copies of the Jewish and Christian Bibles, and conducting
320 OCTOBER TERM, 1971
Per Curiam 405 U.S.
weekly Sunday school classes and religious services.
According to the allegations, points of good merit are
given prisoners as a reward for attending orthodox religious
services, those points enhancing a prisoner's eligibility
for desirable job assignments and early parole
consideration.1 Respondent answered, denying the allegations
and moving to dismiss.
1 The amended complaint alleges, inter oJ,ia:
"Plaintiff is an inmate of the Texas Department of Corrections
and is a member of the Buddhist Churches of America. At the time
of filing of this suit, he was incarcerated at the Eastham Unit and
has since been transferred to the Ellis Unit. There is a substantial
number of prisoners in the Texas Department of Corrections who
either are adherents of the Buddhist "Faith or who wish to explore
the gospel of Buddhism; however, the Defendants have refused in
the past, and continue to refuse, Buddhists the right to hold religious
services or to disseminate the teachings of Buddha. The Plaintiff
has been prevented by the Defendants from borrowing or lending
Buddhist religious books and materials and has been punished by said
Defendants by being placed in solitary confinement on a diet of
bread and water for two weeks for sharing his Buddhist religious
material with other prisoners.
"Despite repeated requests to Defendants for the use of prison
chapel facilities for the purpose of holding Buddhist religious services
and the denials thereof the Defendants have promulgated customs
and regulations which maintain a religious program within the penal
system under which:
"A. Consecrated chaplains of the Protestant, Jewish and Roman
Catholic religions at state expense are assigned to various units.
"B. Copies of the Holy Bible (Jewish and Christian) are distributed
at state expense free to all prisoners.
"C. Religious services and religious classes for Protestant, Jewish
and Roman Catholic adherents are held regularly in chapel facilities
erected at state expense for 'non-denominational' purposes.
"D. Records are maintained by Defendants of religious participation
by inmates.
"E. Religious participation is encouraged on inmates by the Defendants
as necessary steps toward true rehabilitation.
"F. Points of good merit are given to inmates by the Defendants
as a reward for religious participation in Protestant, Jewish and
CRUZ v. BETO 321
Per Curiam
The Federal District Court denied relief without a
hearing or any findings, saying the complaint was
in an area that should be left "to the sound discretion
of prison administration." It went on to say,
"Valid disciplinary and security reasons not known to
this court may prevent the 'equality' of exercise of religious
practices in prison." The Court of Appeals
affirmed. 445 F. 2d 80 I.
Federal courts sit not to supervise prisons but to enforce
the constitutional rights of all "persons," including
prisoners. W'e are not unmindful that prison
officials must be accorded latitude in the administration
of prison affairs, and that prisoners necessarily are subject
to appropriate rules and regulations. But persons in
prison, like other individuals, have the right to petition
the Government for redress of grievances which, of course,
includes "access of prisoners to the courts for the purpose
of presenting their complaints." Johnson v. Avery,
393 U. S. 483, 485; Ex parte Hull, 312 U. S. 546, 549.
See also Younger v. Gilmore, 404 U. S. 15, aff'g Gilmore
v. Lynch, 319 F. Supp. 105 (ND Cal.). Moreover, racial
segregation, which is unconstitutional outside prisons,
is unconstitutional within prisons, save for "the necessities
of prison security and discipline." Lee v. W rMhington,
390 U. S. 333, 334. Even more closely in point
is Cooper v. Pate, 378 U. S. 546, where we reversed a
Roman Catholic faiths which enhance on inmates eligibility for promotions
in class, job assignment and parole.
"Because inmates of the Buddhist faith are being denied the right
to participate in the religious program made available for Protestant,
Jewish and Roman Catholic faiths by the Defendants, Plaintiff and
the members of the class he represents are being subjected to an arbitrary
and unreasonable exclusion without any lawful justification
which invidiously discriminates against them in violation of their
constitutional right of religious freedom and denies them equal protection
of the laws."
322 OCTOBER TERM, 1971
Per Curiam 405 U.S.
dismissal of a complaint brought under 42 U. S. C.
§ 1983. We said: "Taking as true the allegations of
the complaint, as they must be on a motion to dismiss,
the complaint stated a cause of action." Ibid. The
allegation made by that petitioner was that solely because
of his religious beliefs he was denied permission
to purchase certain religious publications and denied
other privileges enjoyed by other prisoners.
We said in Conley v. Gibson, 355 U. S. 41, 45-46, that
"a complaint should not be dismissed for failure to
state a claim unless it appefJ.rS beyond doubt that the
plaintiff can prove no set of facts in support of his
claim which would entitle him to relief."
If Cruz was a Buddhist and if he was denied a reasonable
opportunity of pursuing his faith comparable to the
opportunity afforded fell ow prisoners who adhere to conventional
religious precepts, then there was palpable
discrimination by the State against the Buddhist religion,
established 600 B. C., long before the Christian era.2
The First Amendment, applicable to the States by reason
of the Fourteenth Amendment, Torcaso v. Watkins, 367
U. S. 488, 492-493, prohibits government from making
a law "prohibiting the free exercise" of religion. If the
allegations of this complaint are assumed to be true, as
they must be on the motion to dismiss, Texas has violated
the First and Fourteenth Amendments.
The motion for leave to proceed in forma pauperis
2 We do not suggest, of course, that every religious sect or group
within a prison-however few in number-must have identical facilities
or personnel. A special chapel or place of worship need not be
provided for every faith regardless of size; nor must a chaplain,
priest, or minister be provided without regard to the extent of the
demand. But re,asonable opportunities must be afforded to all prisoners
to exercise the religious freedom guaranteed by the First and
Fourteenth Amendments without fear of penalty.
CRUZ v. BETO 323
319 REHNQUIST, J., dissenting
is granted. The petition for certiorari is granted, the
judgment is vacated, and the cause remanded for a hearing
and appropriate findings. So ordered.
MR. JUSTICE BLACKMUN concurs in the result.
MR. CHIEF JUSTICE BURGER, concurring in the result.
I concur in the result reached even though the allegations
of the complaint are on the borderline necessary to
compel an evidentiary hearing. Some of the claims alleged
are frivolous; others do not present justiciable
issues. There cannot possibly be any constitutional or
legal requirement that the government provide materials
for every religion and sect practiced in this diverse
country. At most, Buddhist materials cannot be denied
to prisoners if someone offers to supply them.
MR. JusTICE REHNQUIST, dissenting.
Unlike the Court, I am not persuaded that petitioner's
complaint states a claim under the First Amendment,
or that if the opinion of the Court of Appeals is vacated
the trial court must necessarily conduct a trial upon the
complaint.1
Under the First Amendment, of course, Texas may
neither "establish a religion" nor may it "impair the
free exercise" thereof. Petitioner alleges that voluntary
services are made available at prison facilities so that
Protestants, Catholics, and Jews may attend church
services of their choice. None of our prior holdings
1 The Court "remand[s] for a hearing and appropriate findings,"
ante, this page. But, of course, the only procedural vehicle for making
such findings in this civil litigation would be the trial to which any
civil litigant is entitled, inasmuch as this Court has never dealt with
the special procedural problems presented by prisoners' civil suits.
See Fed. Rules Civ. Proc.
324 OCTOBER TERM, 1971
REHNQUIST, J., dissenting 405 u. s.
indicates that such a program on the part of prison
officials amounts to the establishment of a religion.
Petitioner is a prisoner serving 15 years for robbery
in a Texas penitentiary. He is understandably not as
free to practice his religion as if he were outside the
prison walls. But there is no intimation in his pleadings
that he is being punished for his religious views, as was
the case in Cooper v. Pate, 378 U. S. 546 ( 1964), where
a prisoner was denied the receipt of mail about his
religion. Cooper presented no question of interference
with prison administration of the type that would be
involved here in retaining chaplains, scheduling the use
of prison facilities, and timing the activities of various
pnsoners.
None of our holdings under the First Amendment requires
that, in addition to being allowed freedom of
religious belief, prisoners be allowed freely to evangelize
their views among other prisoners. There is no indication
in petitioner's complaint that the prison officials
have dealt more strictly with his efforts to convert other
convicts to Buddhism than with efforts of communicants
of other faiths to make similar conversions.
By reason of his status, petitioner is obviously limited
in the extent to which he may practice his religion. He
is assuredly not free to attend the church of his choice
outside the prison walls. But the fact that the Texas
prison system offers no Buddhist services at this particular
prison does not, under the circumstances pleaded
in his complaint, demonstrate that his religious freedom
is being impaired. Presumably prison officials are not
obligated to provide facilities for any particular denominational
services within a prison, although once they
undertake to provide them for some they must make
only such reasonable distinctions as may survive analysis
under the Equal Protection Clause.
CRUZ v. BETO 325
319 REHNQUIST, J., dissenting
What petitioner's basic claim amounts to is that because
prison facilities are provided for denominational
services for religions with more numerous followers, the
failure to provide prison facilities for Buddhist services
amounts to a denial of the equal protection of the laws.
There is no indication from petitioner's complaint how
many practicing Buddhists there are in the particular
prison facility in which he is incarcerated, nor is there
any indication of the demand upon available facilities
for other prisoner activities. Neither the decisions of
this Court after full argument, nor those summarily reversing
the dismissal of a prisoner's civil rights complaint
2 have ever given full consideration to the proper
balance to be struck between prisoners' rights and the
extensive administrative discretion that must rest with
correction officials. I would apply the rule of deference
to administrative discretion- that has been overwhelmingly
accepted in the courts of appeals.3 Failing that,
I would at least hear argument as to what rule should
govern.
A long line of decisions by this Court has recognized
that the "equal protection of the laws" guaranteed by
the Fourteenth Amendment is not to be applied in a
precisely equivalent way in the multitudinous fact situa-
2 Haines v. Kerner, 404 U. S. 519 (1972); Younger v. Gilmore,
404 U. S. 15 (1971); Houghton v. Shafer, 392 U. S. 639 (1968);
Lee v. Washington, 390 U.S. 333 (1968); Cooper v. Pate, 378 U.S.
546 (1964).
3 Douglas v. Sigler, 386 F. 2d 684, 688 (CA8 1967); Carey v.
Settle, 351 F. 2d 483 (CA8 1965); Carswell v. Wainwright, 413 F.
2d 1044 (CA5 1969); Walker v. Pate, 356 F. 2d 502 (CA7 1966).
I do not read Johnson v. Avery, 393 U. S. 483 (1969), which was
concerned with the prisoners' traditional remedy of habeas corpus,
to reach the issue of a statutory civil cause of action such as 42
U.S. C. § 1983.
326 OCTOBER TERM, 1971
REHNQUIST, J., dissenting 405 U.S.
tions that may confront the courts.' On the one hand,
we have held that racial classifications are "invidious"
and "suspect."• I think it quite consistent with the
intent of the framers of the Fourteenth Amendment,
many of whom would doubtless be surprised to know
that convicts came within its ambit, to treat prisoner
claims at the other end of the spectrum from claims
of racial discrimination. Absent a complaint alleging
facts showing that the difference in treatment
between petitioner and his fellow Buddhists and practitioners
of denominations with more numerous adherents
could not reasonably be justified under any rational
hypothesis, I would leave the matter in the hands of the
prison officials.6
It has been assumed that the dismissal by the trial
court must be treated as prcrper only if the standard of
Conley v. Gibson, 355 U. S. 41 ( 1957), would permit the
grant of a motion under Fed. Rule Civ. Proc. 12 (b) (6).
I would not require the district court to inflexibly apply
this general principle to the complaint of every inmate,
who is in many respects in a different litigating posture
than persons who are unconfined. The inmate stands to
'See generally McGowan v. Maryland, 366 U. S. 420 (1961);
Dandridge v. Williams, 397 U.S. 471 (1970); F. S. Royster Guano
Co. v. Virginia, 253 U. S. 412 (1920); Levy v. Louisiana, 391 U. S.
68 (1968); Carrington v. Rash, 380 U. S. 89 (1965), as examples
of the spectrum of Fourteenth Amendment review standards.
5 Loving v. Virginia, 388 U. S. 1 (1967); Korematsu v. United
States, 323 U.S. 214 (1944).
6 Petitioner (represented by a lawyer who drafted the complaint)
alleged that he was excluded from participation in religious programs
and that the exclusion was "arbitrary and unreasonable ... without
any lawful justification." Holding counsel to standards of pleading
applied to other prisoners' claims for relief, conclusions of arbitrariness
are insufficient, e. g., Williams v. Dunbar, 377 F. 2d 505 (CA9
1967); United States ex rel. Hoge v. Bolsinger, 311 F. 2d 215 (CA3
1962).
CRUZ v. BETO 327
319 REHNQUIST, J., dissenting
gain something and lose nothing from a complaint stating
facts that he is ultimately unable to prove.7 Though
he may be denied legal relief, he will nonetheless have
obtained a short sabbatical in the nearest federal courthouse.
8 To expand the availability of such courtroom
appearances by requiring the district court to construe
7 "The last type of writ-writer to be discussed writffi writs for
economic gain. This group is comprised of a few unscrupulous
manipulators who are interested only in acquiring from other prisoners
money, c;garettes, or merchandise purchased in the inmate
canteen. Once they have a 'client's' interest aroused and determine
his ability to pay, they must keep him on the 'hook.' This is commonly
done by deliberately misstatin~ the facts of his case so that
it appears, at least on the surface, that the inmate is entitled to
relief. The documents drafted for the client cast the writ-writer
in the role of a sympathetic protagonist. After reading them, the
inmate is elated that he has found someone able to present his case
favorably. He is willing to pay to maintain the lie that has been
created for him." Larsen, A Prisoner Looks at Writ-Writing, 56
Calif. L. Rev. 343, 348-349 ( 1968) .
"When decisions do not help a writ-writer, he may employ a handful
of tricks which damage his image in the state courts. Some of
the not too subtle subterfuges used by a small minority of writ-writers
would tax the credulity of any lawyer. One writ-writer simply
made up his own legal citations when he ran short of actual ones.
In one action against the California Adult Authority involving the
application of administrative law, one writ-writer used the following
citations: Aesop v. Fables, First Baptist Church v. SaUy Stanford,
Doda v. One Forty-four Inch Chest, and Dogood v. The Planet
Earth. The references to the volumes and page numbers of the
nonexistent publications were equally fantastic, such as 901 Penal,
Review, page 17,240. To accompany each case, he composed an
eloquent decision which, if good law,. would make selected acts of the
Adult Authority unconstitutional. In time the 'decisions' freely circulated
among other writ-writers, and seyeral gullible ones began
citing them also.'' Id., at 355.
8 "[T] emporary relief from prison confinement is always an alluring
prospect, and to the hardened criminal the possibility of escape
lurks in every excursion beyond prison walls.'' Price v. Johnston,
159 F. 2d 234,237 (CA9 1947).
328 OCTOBER TERM, 1971
REHNQUIST, J., dissenting 405 U.S.
every inmate's complaint under the liberal rule of Conley
v. Gibson deprives those courts of the latitude necessary
to process this ever-increasing species of complaint.9
Finally, a factual hearing should not be imperative on
remand if dismissal is appropriate on grounds other than
failure to state a claim for relief. It is evident from the
record before us that the in forma pauperis complaint
might well have been dismissed as "frivolous or malicious,"
under the discretion vested in the trial court by
28 U. S. C. § 1915 (d).111 This power is not limited or
impaired by the strictures of Rule 12 (b). Fletcher v.
Young, 222 F. 2d 222 (CA4 1955). Although the trial
court based its dismissal on 12 (b) ( 6) grounds, this record
would support a dismissal as frivolous.
The State's answer to the complaint showed that the
identical issues of religious freedoms were litigated by
another prisoner from the same institution, claiming the
9 Cf. Price v. Johnston, 334 U. S. 266, 284-285 ( 1948), giving to
the courts of appeals the necessary discretion to determine when
prisoners should be allowed to argue their habeas corpus appeals in
person:
"If it is apparent that the request of the prisoner to argue personally
reflects something more than a mere desire to be freed temporarily
from the confines of the prison, that he is capable of conducting
an intelligent and responsible argument, and that his
presence in the courtroom may be secured without undue inconvenience
or danger, the court would be justified in issuing the writ."
Here, the question is whether prisoners can in every case be permitted
to file a complaint, conduct the full range of pretrial discovery,
and commence a trial (including presumably trial by jury)
at which he and other prisoners will appear as witnesses. The 811mmary
reversal effected here encourages such a result without permitting
the district courts to exercise the type of discretion permitted
in Price and without providing any guidance for their accommodation
of the special problems of prisoner litigation with a fair determination
of such complaints under 42 U. S. C. § 1983 as are rightfully filed.
10 Reece v. Washington, 310 F. 2d 139 (CA9 1962); Conway v.
Oliver, 429 F. 2d 1307 (CA9 1970).
CRUZ v. BETO 329
319 REHNQUIST, J., dissenting
same impairment of the practice of the Buddhist religion,
which was brought by the attorney employed at the
prison to provide legal services for the inmates. It is
not clear whether petitioner here was a party to that
suit, as he was to many suits filed by his fellow prisoners.
If he was, the instant claim may be barred under the
doctrine of res judicata. In any event, a prior adjudication
of the same claim by another prisoner under identical
circumstances would be a substantial factor in a decision
to dismiss this claim as frivolous.
In addition, the trial court had before it the dismissal
of another of petitioner's cases filed shortly before the
instant action, where the trial judge had been exposed
to myriad previous actions, and found them to be "voluminous,
repetitious, duplicitous and in many instances
deceitful." 11 Whether petitioner might have raised his
claim in these or several other actions in which he joined
other prisoner plaintiffs is also proper foundation for a
finding that this complaint is "frivolous or malicious."
Whatever might be the posture of this constitutional
claim if petitioner had never flooded the courts with
repetitive and duplicitous claims, and if it had not recently
been adjudicated in an identical proceeding, I believe
it could be dismissed as frivolous in the case before
us.
11 R. 30.
330 OCTOBER TERM, 1971
Syllabus 405 U.S.
DUNN, GOVERNOR OF TENNESSEE,
ET AL. v. BLUMSTEIN
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
No. 70-13. Argued November 16, 1971-Decided March 21, 1972
Tennessee closes its registration books 30 days before an election,
but requires residence in the State for one year and in the county
for three months as prerequisites for registration to vote. Appellee
challenged the constitutionality of the durational residence
requirements, and a three-judge District Court held them unconstitutional
on the grounds that they impermissibly interfered with
the right to vote and created a "suspect" classification penalizing
some Tennessee residents because of recent interstate movement.
Tennessee asserts that the requirements are needed to insure the
purity of the ballot box and to have knowledgeable voters.
Held: The durational residence requirements are violative of the
Equal Protection Clause of the Fourteenth Amendment, as they
are not necessary to further a compelling state interest. Pp. 335-
360.
(a) Since the requirements deny some citizens the right to
vote, "the Court must determine whether the exclusions a.re
necessary to promote a compelling state interest." Kramer v.
Union Free School District, 395 U.S. 621, 627 (emphasis added).
Pp. 336-337.
(b) Absent a compelling state interest, Tennessee may not
burden the right to travel by penalizing those bona fide residents
who have recently traveled from one jurisdict ion to another.
Pp. 338-342.
(c) A period of 30 days appears to be ample to complete
whatever administrative tasks are needed to prevent fraud and
insure the purity of the ballot box. Pp. 345-349.
(d) Since there are adequate means of ascertaining bona fide
residence on an individualized basis, the State may not conclusively
presume nonresidence from failure to satisfy the waitingperiod
requirements of durational residence laws. Pp. 349-354.
(e) Tennessee has not established a sufficient relationship between
its interest in an informed electorate and the fixed durational
residence requirements. Pp. 354-360.
337 F. Supp. 323, affirmed.
DUNN v. BLUMSTEIN 331
330 Opinion of the Court
MARSHALL, J., delivered the opinion of the Court, in which Douo-
LAS, BRENNAN, STEWART, and WHITE, JJ., joined. BLACKMUN, J.,
filed an opinion concurring in the result, post, p. 360. BURGER, C. J.,
filed a dissenting opinion, post, p. 363. PowELL and REHNQUIST,
JJ,, took no part in the consideration or decision of the case.
Robert H. Roberts, Assistant Attorney General of
Tennessee, argued the cause for appellants. With him
on the brief were David M. Pack, Attorney General, and
Thom~ E. Fox, Deputy Attorney General.
James F. Blumstein, pro se, argued the cause for
appellee. With him on the brief were Charles Morgan,
Jr., and Norman Siegel.
Henry P. Sailer and William A. Dobrovir filed a brief
for Common Cause as amicus curiae urging affirmance.
MR. JusTICE MARSHALL delivered the opinion of the
Court. ·
Various Tennessee public officials (hereinafter Tennessee)
appeal from a decision by a three-judge federal
court holding that Tennessee's durational residence requirements
for voting violate the Equal Protection Clause
of the United States Constitution. The issue arises in a
class action for declaratory and injunctive relief brought
by appellee James Blumstein. Blumstein moved to
Tennessee on June 12, 1970, to begin employment as an
assistant professor of law at Vanderbilt University in
Nashville. With an eye toward voting in the upcoming
August and November elections, he attempted to register
to vote on July 1, 1970. The county registrar refused to
register him, on the ground that Tennessee law authorizes
the registration of only those persons who, at the
time of the next election, will have been residents of the
State for a year and residents of the county for three
months.
After exhausting state administrative remedies, Blumstein
brought this action challenging these residence re332
OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
quirements on federal constitutional grounds.' A threejudge
court, convened pursuant to 28 U. S. C. §§ 2281,
2284, concluded that Tennessee's durational residence
1 Involved here are provisions of the Tennessee Constitution, as
well as portions of tht> Tennessee Code. Article IV, § 1, of the
Tennessee Conslitution, provides in pertinent part:
"Right to vote-Election precincts .... -Every person of the
age of twenty-one years, being a citizen of the United States, and a
resident of this State for twelve months, and of the county wherein
such person may offer to vote for three months, next preceding the
day of election, shall be entitled to vote for electors for President
and Vice-President of the United States, members of the General
A5sembly and other civil officers for the county or district in which
such person resides; and there shall be no other qualification
attached to the right of suffrage.
"The General Assembly shall have po\\'.er to enact laws requiring
voters to vote in the election precincts in which they may reside,
and laws to secure the freedom of elections and the purity of the
ballot box."
Section 2-201, Tenn. Code Ann. (Supp. 1970) provides:
"Qualifications of voters.-Every person of the age of twenty-one
(21) years, being a citizen of the United States and a resident of
this state for twelve (12) months, and of the county wherein he
may offer his vote for three (3) months next preceding the day
of election, shall be entitled to vote for members of the general
assembly and other civil officers for the county or district in which
he may reside."
Section 2-304, Tenn. Code Ann. (Supp. 1970) provides:
"Persons entitled to permanently register-Required time for
registration to be in effect prior to election.-AII persons qualified
to vote under existing laws at the date of application for registration,
including those who will arrive at the legal voting age by the date
of the next succeeding primary or general election established by
statute following the date of their application to register (those who
become of legal voting age before the date of a general election
shall be entitled to register and vote in a legal primary election
selecting nominees for such general election), who will have lived
in the state for twelve (12) months and in the county for which
they applied for registration for three (3) months by the date
of the next succeeding election shall be entitled to permanently
register as voters under the provisions of this chapter provided,
DUNN v. BLUMSTEIN 333
330 Opinion of the Court
requirements were unconstitutional (1) because they impermissibly
interfered with the right to vote and (2) because
they created a "suspect" classification penalizing
some Tennessee residents because of recent interstate
movement.2 337 F. Supp. 323 (MD Tenn. 1970). We
noted probable jurisdiction, 401 U. S. 934 (1971). For
the reasons that follow, we affirm the decision below.3
however, that registration or re-registration shall not be permitted
within thirty (30) days of any primary or general election
provided for by statute. If a registered voter in any county shall
have changed his residence to another county, or to another ward,
precinct, or district within the same county, or changed his name by
marriage or otherwise, within ninety (90) days prior to the date
of an election, he shall be entitled to vote in his former ward,
precinct or district of registration."
2 On July 30, the District Court refused to grant a preliminary
injunrtion permitting Blumstein and members of the class he represented
to vote in the August 6 election; the court noted that to do
so would be "so obviously disruptive as to constitute an example
of judicial improvidence." The District Court also denied a motion
t.hat Blumstein be allowed to cast a sealed provisional ballot for
the election.
At the time the opinion below was filed, the next election was
to be held in November 1970, at which time Blumstein would have
met the three-month part of Tennessee's durational residency rel[
Uirements. The District Court properly rejected the State's position
that the alleged invalidity of the three-month requirement had
been rendered moot, and the State does not pursue any mootness
argument here. Although appellee now can vote, the problem to
voters posed by the Tennessee residence requirements is " 'capable
of repetition, yet evading review.'" Moore v. Ogilvie, 394 U. S.
814, 816 (1969); Southern Pacific Terminal Co. v. ICC, 219 U. S.
498, 515 (1911). In this case, unlike Hall v. Beals, 396 U. S. 45
(1969), the laws in question remain on the books. and Blumstein has
standing to challenge thf'm as a member of the class of people affected
by the presently written statute.
3 The important question in this case has divided the lower courts.
Durational residence requirements ranging from three months to
one year have been struck down in Burg v. Cannifje, 315 F. Supp.
aso (Mass. 1970); Afjeldt v. Whitcomb, 319 F. Supp. 69 (ND
334 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
I
The subject of this lawsuit is the durational residence
requirement. Appellee does not challenge Tennessee's
power to restrict the vote to bona fide Tennessee residents.
Nor has Tennessee ever disputed that appellee
was a bona fide resident of the- State and county when he
attempted to register.4 But Tennessee insists that, in
addition to being a resident, a would-be voter must have
been a resident for a year in the State and three months
in the county. It is this additional durational residence
requirement that appellee challenges.
Durational residence laws penalize those persons who
have traveled from one place to another to establish a
new residence during the qualifying period. Such laws
divide residents into two classes, old residents and new
residents, and discriminate against the latter to the extent
Ind. 1970); Lester v. Board of Elections for District of Columbia,
319 F. Supp. 505 (DC 1970); Bufford v. Holton, 319 F. Supp
843 (ED Va. 1970); Hadnott v. Amos, 320 F. Supp. 107 (MD
Ala. 1970); Kohn v. Davis, 320 F. Supp. 246 (Vt. 1070); Keppel
v. Donovan, 326 F. Supp. 15 (Minn. 1970); Andrews v. Cody,
327 F. Supp. 793 (MDNC 1971), as well as this case. Other
district courts have upheld duratiorutl residence requirements of
a similar variety. Howe v. Brown, 319 F. Supp. 862 (ND Ohio
1970); Ferguson v. Williams, 330 F. Supp. 1012 (ND Miss. 1971);
Cocanower v. Marston, 318 F. Supp. 402 (Ariz. 1970); Fitzpatrick
v. Board of Election Commissioners (ND Ill. 1970); Piliavin v.
Hoel, 320 F. Supp. 66 (WD Wis. 1970); Epps v. Logan (No. 9137,
WD Wash. 1970); Fontham v. McKeithen, 336 F. Supp. 153 (ED
La. 1971). In Sirak v. Brown (Civ. No. 70-164, SD Ohio 1970),
the District Judge refused to convene a three-judge court and RUmma.
rily dismissed the complaint.
4 Noting the lack of dispute on this point, the court below
specifically found that Blumstein had no intention of leaving Nashville
and was a bona fide resident of Tennessee. 337 F. Supp. 323,
324.
DUNN v. BLUMSTEIN 335
330 Opinion of the Court
of totally denying them the opportunity to vote.5 The
constitutional question presented is whether the Equal
Protection Clause of the Fourteenth Amendment permits
a State to discriminate in this way among its citizens.
To decide whether a law violates the Equal Protection
Clause, we look, in essence, to three things: the character
of the classification in question; the individual interests
affected by the classification; and the governmental interests
asserted in support of the classification. Cf. Williarns
v. Rhodes, 393 U.S. 23, 30 (1968). In considering
laws challenged under the Equal Protection Clause, this
Court has evolved more than one test, depending upon
the interest affected or the classification involved.6
First, then, we must determine what standard of review
is appropriate. In the present case, whether we look
to the benefit withheld by the classification (the opportunity
to vote) or the basis for the classification (recent
interstate travel) we conclude that the State must
show a substantial and compelling reason for imposing
durational residence requirements.
5 While it would be difficult to determine precisely how many
would-be voters throughout the country cannot vote because of
durational residence requirements, but see Cocanower & Rich,
Residency Requirements for Voting, 12 Ariz. L. Rev. 477, 478 and
n. 8 (1970), it is worth noting that during the period 1947-1970
an average of approximately 3.3% of the total national population
moved interstate each year. (An additional 3.2% of the population
moved from one county to another intrastate each year.) U. S.
Dept. of Commerce, Bureau of the Census, Current Population Reports,
Population Characteristics, Series P-20, No. 210, Jan. 15,
1971, Table 1, pp. 7-8.
6 Compare Kramer v. Union Free School District, 395 U. S. 621
(1969), and Skinner v. Oklahoma, 316 U.S. 535 (1942), with Williamson
v. Lee Optical Co., 348 U. S. 483 (1955); compare Mc-
Laughlin v. Florida, 379 U. S. 184 (1964), Harper v. Virginia
Board of Elections, 383 U.S. 663 (1966), and Graham v. Richardson,
403 U. S. 365 (1971), with Morey v. Doud, 354 U. S. 457
(1957), and Allied Stores of Ohio v. Bowers, 358 U.S. 522 (1959).
336 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
A
Durational residence requirements completely bar from
voting all residents not meeting the fixed durational
standards. By denying some citizens the right to vote,
such laws deprive them of " 'a fundamental political
right, ... preservative of all rights.' " Reynolds v. Sims,
377 U. S. 533, 562 (1964). There is no need to repeat
now the labors undertaken in earlier cases to analyze this
right to vote and to explain in detail the judicial role in
reviewing state statutes that selectively distribute the
franchise. In decision after decision, this Court has
made clear that a citizen has a constitutionally protected
right to participate in elections on an equal basis with
other citizens in the jurisdiction. See, e. g., Evans v.
Cornman, 398 U. S. 419, 421-422, 426 ( 1970); Kramer
v. Union Free School District, 395 U. S. 621, 626-628
( 1969); Cipriano v. City of Houma, 395 U. S. 701, 706
(1969); Harper v. Virginia Board of Elections, 383 U.S.
663, 667 (1966); Carrington v. Rash, 380 U.S. 89, 93-94
(1965); Reynolds v. Sims, supra. This "equal right to
vote," Evans v. Cornman, supra, at 426, is not absolute;
the States have the power to impose voter qualifications,
and to regulate access to the franchise in other
ways. See, e. g., Carrington v. Rash, supra, at 91;
Oregon v. Mitchell, 400 U. S. 112, 144 (opinion of
DOUGLAS, J.), 241 (separate opinion of BRENNAN,
WHITE, and MARSHALL, JJ.), 294 (opinion of STEWART,
J., concurring and dissenting, with whom BuRGER, C. J.,
and BLACKMC-N, J., joined). But, as a general matter,
"before that right [to vote] can be restricted, the purpose
of the restriction and the assertedly overriding
interests served by it must meet close constitutional
scrutiny." Evans v. Cornman, supra, at 422; see Bullock
v. Carter, ante, p. 134, at 143.
DUNN v. BLUMSTEIN 337
330 Opinion of the Court
Tennessee urges that this case is controlled by Drueding
v. Devlin, 380 U. S. 125 (1965). Drueding was a
decision upholding Maryland's durational residence requirements.
The District Court tested those requirements
by the equal protection standard applied to ordinary
state regulations: whether the exclusions are
reasonably related to a permissible state interest. 234
F. Supp. 721, 724--725 (Md. 1964). We summarily affirmed
per curiam without the benefit of argument. But
if it was not clear then, it is certainly clear now that a
more exacting test is required for any statute that
"place[s] a condition on the exercise of the right to
vote." Bullock v. Carter, supra, at 143. This development
in the law culminated in Kramer v. Union Free
School District, supra.. There we canvassed in detail
the reasons for strict review of statutes distributing
the franchise, 395 U. S., at 626--630, noting
inter alia that such statutes "constitute the foundation of
our representative society." We concluded that if a challenged
statute grants the right to vote to some citizens
and denies the franchise to others, "the Court must determine
whether the exclusions are necessary to promote
a compelling state interest." Id., at 627 (emphasis
added); Cipriano v. City of Houma, supra, at 704;
City of Phoenix v. Kolodziejski, 399 U. S. 204, 205, 209
(1970). Cf. Harper v. Virginia Board of Elections,
supra, at 670. This is the test we apply here.1
7 Appellants also rely on Pope v. Williams, 193 U.S. 621 (1904).
Carefully read, that case simply holds that federal constitutional
rights are not violated by a state provision requiring a person who
enters the State to make a "declaration of his intention to become
a citizen before he can have the right to be registered as a voter
and to vote in the State." Id., at 634. In other words, the case
~imply stands for the proposition that a State may require voters
to be bona fide residents. See infra, at 343 344. To the extent that
dicta in that opinion are inconsistent with the test we apply or the
result we reach today, those dicta are rejected.
338 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
B
This exacting test is appropriate for another reason,
never considered in Drueding: Tennessee's durational
residence laws classify bona fide residents on the
basis of recent travel, penalizing those persons, and only
those persons, who have gone from one jurisdiction to
another during the qualifying period. Thus, the durational
residence requirement directly impinges on the
exercise of a second fundamental personal right, the right
to travel.
"[F]reedom to travel throughout the United States
has long been recognized as a basic right under the Constitution."
United States v. Guest, 383 U. S. 745, 758
(1966). See Passenger Cases, 7 How. 283, 492 (1849)
(Taney, C. J.); Crandall v. Nevada, 6 Wall. 35, 43--44
(1868); Paul v. Virginia, 8 Wall. 168, 180 (1869); Edwards
v. California, 314 U.S. 160 (1941); Kent v. Dulles,
357 U. S. 116, 126 (1958); Shapiro v. Thompson, 394
U.S. 618, 629-631, 634 (1969); Oregon v. Mitchell, 400
U. S., at 237 (separate opinon of BRENNAN, WHITE,
and MARSHALL, JJ.), 285-286 (STEWART, J., concurring
and dissenting, with whom BURGER, C. J., and BLACKMUN,
J., joined). And it is clear that the freedom
to travel includes the "freedom to enter and abide in
any State in the Union," id., at 285. Obviously,
durational residence laws single out the class of
bona fide state and county residents who have recently
exercised this constitutionally protected right, and
penalize such travelers directly. We considered such a
durational residence requirement in Shapiro v. Thompson,
supra, where the pertinent statutes imposed a one-year
waiting period for interstate migrants as a condition to
receiving welfare benefits. Although in Shapiro we
specifically did not decide whether durational residence
requirements could be used to determine voting eligibility,
DUNN v. BLUMSTEIN 339
330 Opinion of the Court
id., at 638 n. 21, we concluded that since the right to
travel was a constitutionally protected right, "any classification
which serves to penalize the exercise of that right,
unless shown to be necessary to promote a compelling
governmental interest, is unconstitutional." Id., at 634.
This compelling-state-interest test was also adopted in
the separate concurrence of MR. JusTICE STEWART. Preceded
by a long line of cases recognizing the constitutional
right to travel, and repeatedly reaffirmed in the
face of attempts to disregard it, see Wyman v. Bowens,
397 U. S. 49 (1970), and Wyman v. Lopez, 404 U. S.
1055 ( 1972), Shapiro and the compelling-state-interest
test it articulates control this case.
Tennessee attempts to d·istinguish Shapiro by urging
that "the vice of the welfare statute in Shapiro ... was
its objective to deter interstate travel." Brief for Appellants
13. In Tennessee's view, the compelling-state-interest
test is appropriate only where there is "some
evidence to indicate a deterrence of or infringement on
the right to travel .... " Ibid. Thus, Tennessee seeks
to avoid the clear command of Shapiro by arguing that
durational residence requirements for voting neither
seek to nor actually do deter such travel. In essence,
Tennessee argues that the right to travel is not abridged
here in any constitutionally relevant sense.
This view represents a fundamental misunderstanding
of the law.8 It is irrelevant whether disenfranchisement
or denial of welfare is the more potent deterrent to travel.
Shapiro did not rest upon a finding that denial of welfare
actually deterred travel. Nor have other "right to travel"
8 We note that in the Voting Rights Act of 1965, as amended,
Congress specifically found that a durational residence requirement
"denies or abridges the inherent constitutional right of citizens to
enjoy their free movement across State lines .... " 84 Stat. 316,
42 U. S. C. § 1973aa- 1 (a) (2).
340 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
cases in this Court always relied on the presence of actual
deterrence.9 In Shapiro we explicitly stated that the
compelling-state-interest test would be triggered by "any
classification which serves to penalize the exercise of that
right [to travel] .... " Id., at 634 (emphasis added);
see id., at 638 n. 21.10 While noting the frank legislative
purpose to deter migration by the poor, and speculating
that "[a]n indigent who desires to migrate . . . will
doubtless hesitate if he knows that he must risk" the
loss of benefits, id., at 629, the majority found no need to
dispute the "evidence that few welfare recipients have
in fact been deterred [from moving] by residence requirements."
Id., at 650 (Warren, C. J., dissenting); see also
id., at 671-672 (Harlan, J., dissenting). Indeed, none of
the litigants had themselves been deterred. Only last
Term, it was specifically noted that because a durational
9 For example, in Crandall v. Nevada, 6 Wall. 35 (1868), the
tax imposed on persons leaving the State by corrtmercial carrier
was only $1, certsiinly a minimal deterrent to travel. But in
declaring the tax unconstitutional, the Court reasoned that "if
the State can tax a railroad passenger one dollar, it can tax him
one thousand dollars," id., at 46. In Ward v. Maryland, 12
Wall. 418 (1871), the tax on nonresident traders was more substantial,
but the Court focused on its discriminatory aspects,
without anywhere considering the law's effect, if any, on trade
or tradesmen's choice of residence. Cf. Chalker v. Birmingham
& N. W. R. Co., 249 U. S. 522, 527 (1919); but see Williams
v. Fears, 179 U. S. 270 (1900). In Travis v. Yale & Towne Mfg.
Co., 252 U. S. 60, 79-80 (1920), the Court held that New York
could not deny nonresidents certain small personal exemptions
from t.he state income tax allowed residents. The amounts were
certainly insufficient to influence any employee's choice of residence.
Compare Toomer v. Witsell, 334 U.S. 385 (1948), with Mullaney v.
Anderson, 342 U.S. 415 (1952).
10 Separately concurring, l\iR. JusTICE STEWART concluded that
quite apart from any purpose to deter, "a law that so clearly impinges
upon the constitutional right of interstate travel must be shown to
reflect a compelling governmental interest." Id., at 643-644 (first
emphasis added). See also Graham v. Richardson, 403 U . S., at 375.
DUNN v. BLUMSTEIN 341
330 Opinion of the Court
residence requirement for voting "operates to penalize
those persons, and only those persons, who have exercised
their constitutional right of interstate migration ... ,
[it] may withstand constitutional scrutiny only upon a
clear showing that the burden imposed is necessary to
protect a compelling and substantial governmental interest."
Oregon v. Mitchell, 400 U. S., at 238 (separate
opinion of BRENNAN, WHITE, and MARSHALL, JJ.)
(emphasis added).
Of course, it is true that the two individual interests
affected by Tennessee's durational residence requirements
are affected in different ways. Travel is permitted, but
only at a price; voting is prohibited. The right to
travel is merely penalized, while the right to vote is
absolutely denied. But these differences are irrelevant
for present purposes. Sha'[Ji,ro implicitly realized what
this Court has made explicit elsewhere:
"It has long been established that a State may not
impose a penalty upon those who exercise a right
guaranteed by the Constitution. . . . 'Constitutional
rights would be Qf little value if they could be ...
indirectly denied' .... " Harman v. Forssenius, 380
U. S. 528, 540 (1965).11
See also Garrity v. New Jersey, 385 U.S. 493 (1967), and
cases cited therein; Spevack v. Klein, 385 U. S. 511, 515
(1967). The right to travel is an "unconditional personal
right," a right whose exercise may not be conditioned.
Shapiro v. Thompson, 394 U. S., at 643 (STEWART,
J., concurring) (emphasis added); Oregon v. Mitchell,
supra, at 292 (STEWART, J., concurring and dissenting,
11 In Harman, the Court held that a Virginia law which allowed
federal voters to qualify either by paying a poll tax or by filing
a certificat-e of residence six months before the election "handicap[
ped] exercise" of the right to participate in federal elections
free of poll taxes, guarantt>ed hy the Twenty-fourth Amendment.
Id., at 541.
342 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
with whom BURGER, C. J., and BLACKMUN, J., joined).
Durational residence laws impermissibly condition and
penalize the right to travel by imposing their prohibitions
on only those persons who have recently exercised that
right.12 In the present case, such laws force a person
who wishes to travel and change residences to choose
between travel and the basic right to vote. Cf. United
States v. Jackson, 390 U.S. 570, 582-583 (1968). Absent
a compelling state interest, a State may not burden the
right to travel in this way.13
C
In sum, durational residence laws must be measured
by a strict equal protection test: they are unconstitutional
unless the ·state can demonstrate that such laws
are "necessary to promote a compelling governmental interest."
Shapiro v. Thompson, supra, at 634 (first
emphasis added); Kramer v. Union Free School District,
395 U. S., at 627. Thus phrased, the _ constitutional
question may sound like a mathematical formula.
But legal "tests" do not have the precision of mathe-
12 Where, for example, an interstate migrant loses his driver's
license because the new State has a higher age requirement, a
different constitutional question is presented. For in such a case,
the new State's age requirement is not a penal,ty imposed solely
because the newcomer is a new resident; instead, all residents, old
and new, must be of a prescribed age to drive. See Shapiro v.
Thompson, 394 U. S. 618, 638 n. 21 (1969).
13 As noted infra, at 343-344, States may show an overriding interest
in imposing an appropriate bona fide re,idence requirement
on would-be voters. One who travels out of a State may no
longer be a bona fide resident, and may not be allowed to vote
in the old State. Similarly, one who travels to a new State may,
in some cases, not establil;h bona fide residence and may be ineligible
to vote in the new State. Nothing said today is meant
to cast doubt on the validity of appropriately defined and uniformly
applied bona fide residence requirements.
DUNN v. BLUMSTEIN 343
330 Opinion of the Court
matical formulas. The key words emphasize a matter
of degree: that a heavy burden of justification is on the
State, and that the statute will be closely scrutinized in
light of its asserted purposes.
It is not sufficient for the State to show that durational
residence requirements further a very substantial state
interest. In pursuing that important interest, the State
cannot choose means that unnecessarily burden or restrict
constitutionally protected activity. Statutes affecting
constitutional rights must be drawn with "precision,"
NAACP v. Button, 371 U. S. 415, 438 (1963);
United States v. Robel, 389 U. S. 258, 265 (1967), and
must be "tailored" to serve their legitimate objectives.
Shapiro v. Thompson, supra, at 631. And if there
are other, reasonable ways to achieve those goals
with a lesser burden on constitutionally protected activity,
a State may. not choose the way of greater interference.
If it acts at all, it must choose "less drastic
means." Shelton v. Tucker, 364 U. S. 479, 488 (1960).
II
We turn, then, to the question of whether the State
has shown that durational residence requirements are
needed to further a sufficiently substantial state interest.
We emphasize again the difference between bona fide
residence requirements and durational residence requirements.
We have in the past noted approvingly that the
States have the power to require that voters be bona
fide residents of the relevant political subdivision. E. g.,
Evans v. Cornman, 398 U. S., at 422; Kramer v. Union
Free School District, supra, at 625; Carrington v. Rash,
380 U.S., at 91; Pope v. Williams, 193 U.S. 621 (1904).14
An appropriately defined and uniformly applied requireu
See n. 7, supra.
344 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
ment of bona fide residence may be necessary to preserve
the basic conception of a political community, and therefore
could withstand close constitutional scrutiny.1 5 But
durational residence requirements, representing a separate
voting qualification imposed on bona fide residents,
must be separately tested by the stringent standard. Cf.
Shapiro v. Thompson, supra, at 636.
It is worth noting at the outset that Congress has, in
a somewhat different context, addressed the question
whether durational residence laws further compelling
state interests. In § 202 of the Voting Rights Act of
1965, added by the Voting Rights Act Amendments of
1970, Congress outlawed state durational residence
requirements for presidential and vice-presidential elections,
and prohibited the States from closing registration
more than 30 days before such elections. 42 U. S. C.
§ 1973aa- 1. In doing so, it made a specific finding that
durational residence reguirements and more restrictive
registration practices do "not bear a reasonable relationship
to any compelling State interest in the conduct of
presidential elections." 42 U. S. C. § 1973aa-1 (a) (6).
We upheld this portion of the Voting Rights Act in
Oregon v. Mitchell, supra. In our present case, of
course, we deal with congressional, state, and local
elections, in which the State's interests are arguably
somewhat different; and, in addition, our function
is not merely to determine whether there was a
reasonable basis for Congress' findings. However, the
congressional finding which forms the basis for the Federal
Act is a useful background for the discussion that
follows.
15 See Fontham v. McKeithen, 336 F. Supp., at 167-168 (Wisdom,
J., dissenting); Pope v. Williams, 193 U. S. 621 (1904); and n. 7,
supra.
DUNN v. BLUMSTEIN 345
330 Opinion of the Court
T ennessee tenders "two basic purposes" served by its
durational residence requirements:
"(l) INSURE PURITY OF BALLOT BOXProtection
against fraud through colonization and
inability to identify persons offering to vote, and
"(2) KNOWLEDGEABLE VOTER - Afford
some surety that the voter has, in fact, become a
member of the community and that as such, he has
a common interest in all matters pertaining to its
government and is, therefore, more likely to exercise
his right more intelligently." Brief for Appellants
15, citing 18 Am. Jur., Elections, § 56, p. 217.
We consider each in turn.
A
Preservation of the "purity of the ballot box" is a
formidable-sounding state interest. The impurities
feared, variously called "dual voting" and "colonization,"
all involve voting by nonresidents, either singly or in
groups. The main concern is that nonresidents will
temporarily invade the State or county, falsely swear that
they are residents to become eligible to vote, and, by
voting, allow a candidate to win by fraud. Surely the
prevention of such fraud is a legitimate and compelling
government goal. But it is impossible to view durational
residence requirements as necessary to achieve that state
interest.
Preventing fraud, the asserted evil that justifies state
lawmaking, means keeping nonresidents from voting.
But, by definition, a durational residence law bars newly
arrived residents from the franchise along with nonresidents.
The State argues that such sweeping laws are
necessary to prevent fraud because they are needed to
identify bona fide residents. This contention is particu346
OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
larly unconvincing in light of Tennessee's total statutory
scheme for regulating the franchise.
Durational residence laws may once have been necessary
to prevent a fraudulent evasion of state voter
standards, but today in Tennessee, as in most other
States,1° this purpose is served by a system of voter
registration. Tenn. Code Ann. § 2-301 et seq. ( 1955
and Supp. 1970); see State v. Weaver, 122 Tenn.
198, 122 S. W. 465 (1909). Given this system,
the record is totally devoid of any evidence that
durational residence requirements are in fact necessary
to identify bona fide residents. The qualifications of
the would-be voter in Tennessee are determined when
he registers to vote, which he may do until 30 days before
the election. Tenn. Code Ann. § 2-304. His qualifications-
including bona fide residence-are established
then by oath. Tenn. Code Ann. § 2-309. There is no
indication in the record that Tennessee routinely goes
behind the would-be voter's oath to determine his qualifications.
Since false swearing is no obstacle to one
intent on fraud, the existence of burdensome voting
qualifications like durational residence requirements cannot
prevent corrupt nonresidents from fraudulently registering
and voting. As long as the State relies on the
oath-swearing system to establish qualifications, a durational
residence requirement adds nothing to a simple
residence requirement in the effort to stop fraud. The
nonresident intent on committing election fraud will as
quickly and effectively swear that he has been a resident
for the requisite period of time as he would swear that
he was simply a resident. Indeed, the durational residence
requirement becomes an effective voting obstacle
16 See, e. g., Cocanower & Rich, 12 Ariz. L. Rev., at 499; MacLeod
& Wilberding, State Voting Residency Requirements and Civil Rights,
38 Geo. Wash. L. Rev. 93, 113 (1969).
DUNN v. BLUMSTEIN 347
330 Opinion of the Court
only to residents who tell the truth and have no fraudulent
purposes.
Moreover, to the extent that the State makes an enforcement
effort after the oath is sworn, it is not clear
what role the durational residence requirement could
play in protecting against fraud. The State closes the
registration books 30 days before an election to give officials
an opportunity to prepare for the election. Before
the books close, anyone may register who claims that he
will meet the durational residence requirement at the time
of the next election. Although Tennessee argues that
this 30-day period between registration and election does
not give the State enough time to verify this claim of
bona fide residence, we do not see the relevance of that
position to this case. As long as the State permits registration
up to 30 days before an election, a lengthy durational
residence requirement does not increase the amount
of time the State has in which to carry out an investigation
into the sworn claim by the would-be voter that he
is in fact a resident.
Even if durational residence requirements imposed, in
practice, a pre-election waiting period that gave voting
officials three months or a year in which to confirm the
bona fides of residence, Tennessee would not have demonstrated
that these waiting periods were necessary. At
the outset, the State is faced with the fact that it must
defend two separate ,vaiting periods of different lengths.
It is impossible to see how both could be "necessary" to
fulfill the pertinent state objective. If the State itself
has determined that a three-month period is enough
time in which to confirm bona fide residence in the State
and county, obviously a one-year period cannot also be
justified as "necessary" to achieve the same purpose."
11 Obviously, it could not be argued that the three-month waiting
period is necessary to confirm residence in the county, and the oneyear
period necessary to confirm residence in the State. Quite
348 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Beyond that, the job of detecting nonresidents from
among persons who have registered is a relatively simple
one. It hardly justifies prohibiting a11 newcomers from
voting for even three months. To prevent dual voting,
state voting officials simply have to cross-check lists of
new registrants with their former jurisdictions. See Comment,
Residence Requirements for Voting in Presidential
Elections, 37 U. Chi. L. Rev. 359, 364 and n. 34, 374
( 1970); cf. Shapiro v. Thompson, 394 U.S., at 637. Objective
information tendered as relevant to the question of
bona fide residence under Tennessee law-places of dwelling,
occupation, car registration, driver's license, property
owned, etc.18-is easy to doublecheck, especially in light
of modern communications. Tennessee itself concedes
that "[i]t might well be that these purposes can be
achieved under requirements of shorter duration than that
imposed by the State of Tennessee ..... " Brief for Appellants
10. Fixing a constitutiona11y acceptable period is
surely a matter of degree. It is sufficient to note here that
30 days appears to be an ample period of time for the
State to complete whatever administrative tasks are necessary
to prevent fraud-and a year, or three months, too
much. This was the judgment of Congress in the context
of presidential elections.19 And, on the basis of the statapart
from the total implausibility of any suggestion that one task
should take four times as long as the other, it is sufficient to note
that if a person is found to be a bona fide resident of a county
within the StatE', he is by definition a bona fide resident of the
State as well.
18 See, e. g., Brown v. Hows, 163 Tenn. 178, 42 S. W. 2d 210
(1930); Sparks v. Sparks, 114 Tenn. 666,. 88 S. W. 173 (1905).
See generally Tennessee Law Revision Commission, Title 2-Election
Laws, Tentative Draft of October 1971, § 222 and Comment. See
n. 22, infra.
19 In the Voting Rights Act Amendments of 1970, Congress abolished
durational residence requirements as a precondition to voting
DUNN v. BLUMSTEIN 349
330 Opinion of the Court
utory scheme before us, it is almost surely the judgment
of the Tennessee lawmakers as well. As the court below
concluded, the cutoff point for registration 30 days before
an election
"reflects the judgment of the Tennessee Legislature
that thirty days is an adequate period in which
Tennessee's election officials can effect whatever
measures may be necessary, in each particular case
confronting them, to insure purity of the ballot and
prevent dual registration and dual voting." 337 F.
Supp., at 330.
It has been argued that durational residence requirements
are permissible because a person who has satisfied
the waiting-period requirements is conclusively presumed
to be a bona fide resident. In other words, durational
residence requirements are justified because they create
an administratively useful conclusive presumption that
recent arrivals are not residents and are therefore propin
presidential and vice-presidential elections, and prohibited the
States from cutting off registration more than 30 days prior to those
elections. These limits on the waiting period a State may impose
prior to an election were made "with full cognizance of the possibility
of fraud and administrative difficulty." Oregon v. Mitchell,
400 U. 8. 112, 238 (separate opinion of BRENNAN, WHITE, and MARSHALL,
JJ.). With that awareness, Congress concluded that a waiting-
period requirement beyond 30 days "does not bear a reasonable
relationship to any compelling State interest in the conduct of
presidential elect.ions." 42 U. S. C. § 1973aa-1 (a) (6). And in
sustaining § 202 of the Voting Rights Act of 1965, we found "no explanation
why the 30-day period between the closing of new registrations
and the date of election would not provide, in light of modern
communications, adequate time to insure against ... frauds." Oregon
v. Mitchell, supra, at 239 (separate opinion of BRENNAN, WHITE,
and MARSHALL, JJ.). There is no reason to think that what Congress
thought was unnecessary to prevent fraud in presidential elections
should not also be unnecessary in the context of other elections. See
infra, at 354.
350 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
erly barred from the franchise.20 This presumption, so
the argument runs, also prevents fraud, for few candidates
will be able to induce migration for the purpose of
voting if fraudulent voters are required to remain in
the false locale for three months or a year in order to
vote on election day.21
In Carrington v. Rash, 380 U. S. 89, this Court
considered and rejected a similar kind of argument in
support of a similar kind of conclusive presumption.
There, the State argued that it was difficult to tell
whether persons moving to Texas while in the military
service were in fact bona fide residents. Thus, the State
said, the administrative convenience of avoiding difficult
factual determinations justified a blanket exclusion of all
servicemen stationed in Texas. The presumption created
there was conclusive-" ·'incapable of being overcome
by proof of the most positive character.'" Id., at 96, citing
Heiner v. Donnan, 285 U. S. 312, 324 (1932). The
20 As a technical matter, it makes no sense to say that one who
has been a resident for a fixed duration is presumed to be a resident.
In order to meet the durational residence requirement, one must,
by definition, first establish that he is a resident. A durational
residence requirement is not simply a waiting period after arrival
in the State; it is a waiting period after residence is established.
Thus it is conci>ptually impossible to say that a durational residence
requirement is an administratively useful device to determine residence.
The State's argument must be that residence would be
presumed from simple presence in the State or county for the fixed
waiting period.
21 It should be clear that this argument assumes that the State
will reliably determine whether the sworn claims of duration in the
jurisdiction are themselves accurate. We have already noted that
this is unlikely. See supra, at 346. Another recurrent problem for
the State's position is the existence of differential durational residence
requirements. If the State presumes residence in the county
after three months in the county, there is no rational explanation for
requiring a full 12 months' presence in the State to presume residence
in the State.
DUNN v. BLUMSTEIN 351
330 Opinion of the Court
Court rejected this "conclusive presumption" approach
as violative of the Equal Protection Clause. While many
servicemen in Texas were not bona fide residents, and
therefore properly ineligible to vote, many servicemen
clearly were bona fide residents. Since "more precise
tests" were available "to winnow successfully from the
ranks ... those whose residence in the State is bona fide,"
conclusive presumptions were impermissible in light of
the individual interests affected. Id., at 95. "States
may not casually deprive a class of individuals of the vote
because of some remote administrative benefit to the
State." Id., at 96.
Carrington s~fficiently disposes of this defense of durational
residence requirements. The State's legitimate
purpose is to determine whether certain persons in the
community are bona fide residents. A durational residence
requirement creates a classification that may, in
a crude way, exclude nonresidents from that group. But
it also excludes many residents. Given the State's legitimate
purpose and the individual interests that are
affected, the classification is all too imprecise. See
supra, at 343. In general, it is not very difficult for
Tennessee to determine on an individualized basis
whether one recently arrived in the community is in fact
a resident, although of course there will always be difficult
cases. Tennessee has defined a test for bona fide
residence, and appears prepared to apply it on an mdividualized
basis in various legal contexts.22 That test
22 Tennessee's basic test for bona fide residence is (1) an intention
to stay indefinitely in a place (in other words, "without a
present intention of removing therefrom," Brown v. Hows, 163
Tenn., at 182, 42 S. W. 2d, at 211), joined with (2) some objective
indication consistent with that intent, see n. 18, supra. This basic
test has been applied in divorce cases, see, e. g., Sturdavant v.
Sturdavant, 28 Tenn. App. 273, 189 S. W. 2d 410 (1944); Brown v.
Brown, 150 Tenn. 89, 261 S. W. 959 (1924); Sparks v. Sparks, 114
352 OCTOBER TERM, 1971
Opinion of the Court 405U.S.
could easily be applied to new arrivals. Furthermore, if
it is unlikely that would-be fraudulent voters would remain
in a false locale for the lengthy period imposed by
durational residence requirements, it is just as unlikely
that they would collect such objective indicia of bona
fide residence as a dwelling, car registration, or driver's
license. In spite of these things, the question of bona
fide residence is settled for new arrivals by conclusive
presumption, not by individualized inquiry. Cf. Carrington
v. Rash, supra, at 95-96. Thus, it has always
been undisputed that appellee Blumstein is himself
a bona fide resident of Tennessee within the ordinary
state definition of residence. But since Tennessee's
presumption from failure to meet the durational residence
requirements is conclusive, a showing of actual
bona fide residence is irrelevant, even though such a
showing would fully serve the State's purposes embodied
in the presumption and would achieve those purposes
with far less drastic impact on constitutionally protected
interests.23 The Equal Protection Clause places a limit
on government by classification, and that limit has been
exceeded here. Cf. Shapiro v. Thompson, 394 U. S.,
at 636; Harman v. Forssenius, 380 U. S., at 542-543;
Carrington v. Rash, supra, at 95-96; Skinner v. Oklahoma,
316 U. S. 535 (1942).
Tenn. 666, 88 S. W. 173 (1905); in tax cases, see, e. g., Denny v.
Sumner County, 134 Tenn. 468, 184 S. W. 14 (1916); in estate
cases, see, e. g., Caldwell v. Shelton, 32 Tenn. App. 45, 221 S. W.
2d 815 (1948); Hascall v. Hafford, 107 Tenn. 355, 65 S. W. 423
(1901); and in voting cases, see, e. g., Brown v. Hows, supra;
Tennessee Law Revision Commission, Title 2-Election Laws, supra,
n. 18.
23 Indeed, in Blumstein's case, the County Election Commission
explicitly rejected his offer t.o treat t.he waiting-period requirement
as "a waivable guide to commission action, but rebuttable upon
a proper showing of competence to vote intelligently in the primary
and general election." Complaint at App. 8. Cf. Skinner v. Oklahoma,
316 U. S., at 544--545 (Stone, C. J., concurring).
DUNN v. BLUMSTEIN 353
330 Opinion of the Court
Our conclusion that the waiting period is not the least
restrictive means necessary for preventing fraud is
bolstered by the recognition that Tennessee has at its
disposal a variety of criminal laws that are more than
adequate to detect and deter whatever fraud may be
feared.24 At least six separate sections of the Tennessee
Code define offenses to deal with voter fraud. For example,
Tenn. Code Ann. § 2-324 makes it a crime "for
any person to register or to have his name registered as
a qualified voter ... when he is not entitled to be so
registered ... or to procure or induce any other person
to register or be registered ... when such person is not
legally qualified to be registered as such .... " 25 In
addition to the various criminal penalties, Tennessee permits
the bona fl.des of a voter to be challenged on election
day. Tenn. Code Ann. § 2-1309 et seq. (1955 and Supp.
1970). Where a State has available such remedial action
u See Harman v. Forssenius,· 380 U. S., at 543 (1965) (filing of
residence certificate six months before election in lieu of poll tax
unnecessary to insure that the election is limited to bona fide residents
in light of "numerous devices to enforce valid residence requirements");
cf. Schneider v. State, 308 U. S. 147, 164 (1939) (fear
of fraudulent solicitations cannot justify permit requests since
"[f] rauds may be denounced as offenses and punished by law").
25 Tenn. Code Ann. § 2-1614 (Supp. 1970) makes it a felony for
any person who "is not legally entitled to vote at the time and place
where he votes or attempts to vote ... , to vote or offer to do so,"
or to aid and abet such illegality. Tenn. Code Ann. § 2-2207 (1955)
makes it a misdemeanor "for any person knowingly to vote in any
political convention or any election held under the Constitution or
laws of this state, not being legally qualified to vote ... ," and Tenn.
Code Ann. § 2-2208 (1955) makes it a misdemeanor to aid in such an
offense. Tenn. Code Ann. § 2-202 (Supp. 1970) makes it an offense
to vote outside the ward or precinct where one resides and is registered.
Finally, Tenn. Code Ann. § 2-2209 (1955) makes it unlawful
to "bring or aid in bringing any fraudulent voters into this state for
the purpose of practising a fraud upoI! or in any primary or final
election .... " See, e. g., State v. Weaver, 122 Tenn. 198, 112 S. W.
465 (1909).
354 OCTOBER TERM, 1971
Opinion of the Court 405U.S.
to supplement its voter registration system, it can hardly
argue that broadly imposed political disabilities such as
durational residence requirements are needed to deal with
the evils of fraud. Now that the Federal Voting Rights
Act abolishes those residence requirements as a precondition
for voting in presidential and vice-presidential elections,
42 U. S. C. § 1973aa-1, it is clear that the States
will have to resort to other devices available to prevent
nonresidents from voting. Especially since every State
must live with this new federal statute, it is impossible
to believe that durational residence requirements are
necessary to meet the State's goal of stopping fraud.26
B
The argument that durational residence requirements
further the goal of having "knowledgeable voters" appears
to involve three separate claims. The first is that
such requirements "afford some surety that the voter
has, in fact, become a member of the community." But
here the State appears to confuse a bona fide residence
requirement with a durational residence requirement.
As already noted, a State does have an interest in limiting
the franchise to bona fide members of the community.
But this does not justify or explain the exclusion from
the franchise of persons, not because their bona fide
residence is questioned, but because they are recent rather
than longtime residents.
The second branch of the "knowledgeable voters" j ustification
is that durational residence requirements assure
that the voter "has a common interest in all matters pertaining
to [ the community's] government . . . ." By
this, presumably, the State means that it may require
a period of residence sufficiently lengthy to impress upon
26 We not.e that in the period since the decision below, several
elections have been held in Tennessee. We have been presented
with no specific evidence of increased colonization or other fraud.
DUNN v. BLUMSTEIN 355
330 Opinion of the Court
its voters the local viewpoint. This is precisely the sort
of argument this Court has repeatedly rejected. In
Carrington v. Rash, for example, the State argued that
military men newly moved into Texas might not have
local interests sufficiently in mind, and therefore could
be excluded from voting in state elections. This Court
replied:
"But if they are in fact residents, ... they, as all
other qualified residents, have a right to an equal
opportunity for political representation. . . . 'Fencing
out' from the franchise a sector of the population
because of the way they may vote is constitutionally
impermissible." 380 U. S., at 94.
See 42 U. S. C. § 1973aa-l (a)(4).
Similarly here, Tennessee's hopes for voters with a
"common interest in all matters p~rtaining to [ the community's]
government" is impermissible.21 To paraphrase
what we said elsewhere, "All too often, lack of a
['common interest'] might mean no more than a different
interest." Evans v. Cornman, 398 U. S., at 423.
"[D]ifferences of opinion" may not be the basis for excluding
any group or person from the franchise. Cipriano
v. City of Houma, 395 U. S., at 705-706. "[T]he fact
that newly arrived [Tennesseeans] may have a more
national outlook than longtime residents, or even may
retain a viewpoint characteristic of the region from
which they have come, is a constitutionally impermissible
reason for depriving them of their chance to influence the
27 It has been noted elsewhere, and with specific reference to Tennessee
law, that " [ t] he historical purpose of [ durational] residency
requirements seems to have been to deny the vote to undesirables,
immigrants and outsiders with different ideas." Cocanower & Rich,
12 Ariz. L. Rev., at 484 and nn. 44, 45, and 46. We do not rely
on this alleged original purpose of durational residence requirements
in striking them down today.
356 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
electoral vote of their new home State." Hall v. Beals,
396 U. S. 45, 53-54 (1969) (dissenting opinion).2"
Finally, the State urges that a longtime resident is
"more likely to exercise his right [ to vote] more intelligently."
To the extent that this is different from the
previous argument, the State is apparently asserting an
interest in limiting the franchise to voters who are
knowledgeable about the issues. In this case, Tennessee
argues that people who have been in the State
less than a year and the county less than three months
are likely to be unaware of the issues involved in the
congressional, state, and local elections, and therefore
can be barred from the franchise. We note that the
criterion of "intelligent" voting is an elusive one, and
susceptible of abuse. But without deciding as a general
matter the extent to which a State can bar less knowledgeable
or intelligent· citizens from the franchise, cf.
Evans v. Cornman, 398 U. S., at 422; Kramer v. Union
Free School District, 395 U. S., at 632; Cipriano v. City
28 Tennessee may be revealing this impermissible purpose when
it observes:
"The fact that the Yoting privilege has been extended to 18 year
old persons ... increases, rather than diminishes, the need for
durational residency requirements. . . . It is so generally known,
as to be judicially accepted, that there are many political subdivisions
in this state, and other states, wherein there are colleges,
universities and military installations with sufficient student body
or military personnel over eighteen years of age, as would completely
dominate elections in the district, county or municipality so
located. This would offer the maximum of opportunity for fraud
through colonization, and permit domination by those not knowledgeable
or having a common interest in matters of government, as
opposed to the interest and the knowledge of permanent members
of the community. Upon completion of their schooling, or servir!'
tour, they move on, leaving the community bound to a course of
political expediency not of its choice and, in fact, one over which
its more permanent citizens, who will continue to be affected, had
no control." Brief for Appellants 15- 16.
DUNN v. BLUMSTEIN 357
330 Opinion of the Court
of Houma, 395 U. S., at 705,29 we conclude that durational
residence requirements cannot be justified on this
basis.
In Kramer v. Union Free School District, supra,
we held that the Equal Protection Clause prohibited
New York State from limiting the vote in
school-district elections to parents of school children
and to property owners. The State claimed that since
nonparents would be "less informed" about school affairs
than parents, id., at 631, the State could properly exclude
the class of nonparents in order to limit the franchise to
the more "interested" group of residents. We rejected
that position, concluding that a "close scrutiny of [ the
classification] demonstrates that [it does] not accomplish
this purpose with sufficient precision .... " Id., at 632.
That scrutiny revealed that the classification excluding
nonparents from the franchise kept many persons from
voting who were as substantially interested .as those allowed
to vote; given this, the classification was insufficiently
"tailored" to achieve the articulated state goal.
Ibid. See also Cipriano v. City of Houma, supra, at 706.
Similarly, the durational residence requirements in this
case founder because of their crudeness as a device for
29 In the 1970 Voting Rights Act, which added § 201, 42 U. 8. C.
§ 1973aa, Congress provided that "no citizen shall be denied, because
of his failure to comply with any test or device, the right to vote in
any Federal, State, or local election .... " The term "test or device"
was defined to include, in part, "any requirement that a person as a
prerequisite for voting or registration for voting (I) demonstrate
the ability to read, write, understand, or interpret any matter,
(2) demonstrate any educational achievement or his knowledge of
any particular subject . . . ." By prohibiting various "test [ s]"
and "device[s]" that would clearly assure knowleclgeability on the
part of voters in local elections, Congress declared federal policy
that people should be allowed to vote even if they were not well
informed about the issues. We upheld § 201 in Oregon v. Mitchell,
supra.
358 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
achieving the articulated state goal of assuring the knowledgeable
exercise of the franchise. The classifications
created by durational residence requirements obviously
permit any longtime resident to vote regardless of his
knowledge of the issues-and obviously many longtime
residents do not have any. On the other hand, the
classifications bar from the franchise many other, admittedly
new, residents who have become at least minimally,
and often fully, informed about the issues. Indeed, recent
migrants who take the time to register and vote
shortly after moving are likely to be those citizens,
such as appellee, who make it a point to be informed and
knowledgeable about th~ issues. Given modern communications,
and given the clear indication that campaign
spending and voter education occur largely during the
month before an election,3° the State cannot seriously
maintain that it is "necessary" to reside for a year in the
State and three months in the county in order to be
knowledgeable about congressional, state, or even purely
local elections. There is simply nothing in the record to
support the conclusive presumption that residents who
have lived in the State for less than a year and their
county for less than three months are uninformed about
elections. Cf. Shapiro v. Thompson, 394 U. S., at
631. These durational residence requirements crudely
exclude large numbers of fully qualified people. Especially
since Tennessee creates a waiting period by closing
registration books 30 days before an election, there can
be no basis for arguing that any durational residence
requirement is also needed to assure knowledgeability.
It is pertinent to note that Tennessee has never made
an attempt to further its alleged interest in an informed
electorate in a universally applicable way. Knowledge
30 H. Alexander, Financing the 1968 Election 106-113 (1971);
Affeldt v. Whitcomb, 319 F. Supp., at 77; Cocanower & Rich, 12
Ariz. L. Rev., at 498.
DUNN v. BLUMSTEIN 359
330 Opinion of the Court
or competence has never been a criterion for participation
in Tennessee's electoral process for longtime residents.
Indeed, the State specifically provides for voting by various
types of absentee persons.31 These provisions permit
many longtime residents who leave the county or
State to participate in a constituency in which they have
only the slightest political interest, and from whose political
debates they are likely to be cut off. That the
State specifically permits such voting is not consistent
with its claimed compelling interest in intelligent, informed
use of the ballot. If the State seeks to assure
intelligent use of the ballot, it may not try to serve this
interest only with respect to new arrivals. Cf. Shapiro
v. Thompson, supra, at 637-638.
It may well be true that new residents as a group know
less about state and local issues than older residents; and
it is surely true that durational residence requirements
will exclude some people from voting who are totally un-
31 The general provisions for absentee voting apply in part to
"[a]ny registered voter otherwise qualified to vote in any election
to be held in this state or any count.y, municipality, or other political
subdivision thereof, who by reason of business, occupation,
health, education, or travel, is required to be absent from the
county of his fixed residence on the day of the election .... "
Tenn. Code Ann.§ 2-1602 (Supp. 1970). See generally Tenn. Code
Ann. § 2-1601 et seq. (Supp. 1970). An alternative method of
absentee voting for armed forces members and federal personnel
is detailed in Tenn. Code Ann. § 2- 1701 et seq. (Supp. 1970). Both
those provisions allow persons who are still technically "residents"
of the State or county to vote even though they are not physically
present, and even though they are likely to be uninformed
about the issues. In addition, Tennessee has an unusual provision
that permits persons to vote in their prior residence for a period
after residence has been changed. This section provides, in pertinent
part: "If a registered voter in any county shall have changed
his residence to another county ... within ninety (90) days prior
to the date of an election, he shall be entitled to vote in his former
ward, precinct or district of registration." Tenn. Code Ann. § 2-304
(Supp. 1970). See also Tenn. Code Ann.§ 2---204 (1955).
360 OCTOBER TERM, 1971
BLACKMUN, J ., concurring in result 405 U.S.
informed about election matters. But as devices to
limit the franchise to knowledgeable residents, the
conclusive presumptions of durational residence requirements
are much too crude. They exclude too many people
who should not, and need not, be excluded. They
represent a requirement of knowledge unfairly imposed
on only some citizens. We are aware that classifications
are always imprecise. By requiring classifications to be
tailored to their purpose, we do not secretly require the
impossible. Here, there is simply too attenuated a relationship
between the state interest in an informed electorate
and the fixed requirement that voters must have
been residents in the State for a year and the county for
three months. Given the exacting standard of precision
we require of statutes affecting constitutional rights, we
cannot say that durational residence requirements are
necessary to further a compelling state interest.
III
Concluding that Tennessee has not offered an adequate
justification for its durational residence laws, we affirm
the judgment of the court below.
Affirmed.
MR. JUSTICE PowELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of this ca~e.
MR. JusTrCE BLACKMUN, concurring in the result.
Professor Blumstein obviously could hardly wait to
register to vote in his new home State of Tennessee.
He arrived in Nashville on June 12, 1970. He moved
into his apartment on June 19. He presented himself
to the registrar on July 1. He instituted his lawsuit
on July 17. Thus, his litigation was begun 35 days
after his arrival on Tennessee soil, and less than 30 days
after he moved into his apartment. But a primary was
coming up on August 6. Usually, such zeal to exercise
DUNN v. BLUMSTEIN 361
330 BLACKMUN, J ., concurring in result
the franchise is commendable. The professor, however,
encountered-and, I assume, knowingly so------the
barrier of the Tennessee durational residence requirement
and, because he did, he instituted his test suit.
I have little quarrel with much of the content of the
Court's long opinion. I concur in the result, with these
few added comments, because I do not wish to be described
on a later day as having taken a position broader
than I think necessary for the disposition of this case.
1. In Pope v. Willi.ams, 193. U. S. 621 (1904), Mr.
Justice Peckham, in speaking for a unanimous Court that
included the first Mr. Justice Harlan and Mr. Justice
Holmes, said:
"The simple matter to be herein determined
is whether, with reference to the exercise of the
privilege of voting in Maryland, the legislature of
that State had the legal right to provide that a
person coming into the State to reside should make
the declaration of intent a year before he should
have the right to be registered as a voter of the
State.
" The right of a State to legislate upon the
subject of the elective franchise as to it may seem
good, subject to the conditions already stated, being,
as we believe, unassailable, we think it plain that
the statute in question violates no right protected
by the Federal Constitution.
"The reasons which may have impelled the state
legislature to enact the statute in question were
matters entirely for its consideration, and this court
has no concern with them." 193 U. S., at 632, 633-
634.
I cannot so blithely explain Pope v. Willi.ams away, as
does the Court, ante, at 337 n. 7, by asserting that if that
362 OCTOBER TERM, 1971
BLACKMUN, J., concurring in result 405 u. s.
opm10n is "[c]arefully read," one sees that the case
was concerned simply with a requirement that the new
arrival declare his intention. The requirement was
that he make the declaration a year before he registered
to vote; time as well as intent was involved.
For me, therefore, the Court today really overrules the
holding in Pope v. Willwms and does not restrict itself,
as footnote 7 says, to rejecting what it says are mere
dicta.
2. The compelling-state-interest test, as applied to a
State's denial of the vote, seems to haye come into full
flower with Kramer v. Union Free School D-istrict, 395
U. S. 621, 627 (1969). The only supporting authority
cited is in the "See" context to Carrington v. Rash,
380 U. S. 89, 96 ( 1965). But as I read Carrington,
the standard there employed was that the voting requirements
be reasonable. Indeed, in that opinion
MR. JUSTICE STEWART observed, at 91, that the State
has "unquestioned power to impose reasonable residence
restrictions on the availability of the ballot." A like
approach was taken in McDonald v. Board of Election
Comm'issioners, 394 U. S. 802, 809 (1969), where the
Court ref erred to the necessity of "some rational relationship
to a legitimate state end" and to a statute's
being set aside "only if based on reasons totally unrelated
to the pursuit of that goal." I mention this only
to emphasize that Kramer appears to have elevated the
standard. And this was only three years ago. Whether
Carrington and McDonald are now frowned upon, at
least in part, the Court does not say. Cf. Bullock v.
Carter, ante, p. 134.
3. Clearly, for me, the State does have a profound
interest in the purity of the ballot box and in an informed
electorate and is entitled to take appropriate
steps to assure those ends. Except where federal interDUNN
v. BLUMSTEIN 363
330 BURGER, C. J., dissenting
vention properly prescribes otherwise, see Oregon v.
Mitchell, 400 U. S. 112 (1970), I see no constitutional
imperative that voting requirements be the same in
each State, or even that a State's time requirement
relate to the 30-day measure imposed by Congress by
42 U. S. C. § 1973aa-1 (d) for presidential elections. I
assume that the Court QY its decision today does not
depart from either of these propositions. I cannot be
sure of this, however, for much of the opinion seems to
be couched in absolute terms.
4. The Tennessee plan, based both in statute and in
the State's constitution, is not ideal. I am content that
the one-year and three-month requirements be struck
down for want of something more closely related to
the State's interest. It is, of course, a matter of line
drawing, as the Court concedes, ante, at 348. But if
30 days pass constitutional muster, what of 35 or 45 or
75? The resolution of these longer measures, less than
those today struck down, the Court leaves, I suspect,
to the future.
MR. CHIEF JusTICE BURGER, dissenting.
The holding of the Court in Pope v. Williams, 193 U.S.
621 (1904), is as valid today as it was at the turn of the
century. It is no more a denial of equal protection for a
State to require newcomers to be exposed to state and
local problems for a reasonable period such as one year
before voting, than it is to require children to wait 18
years before voting. Cf. Oregon v. Mitchell, 400 U.S. 112
( 1970). In both cases some informed and responsible
persons are denied the vote, while others less informed and
less responsible are permitted to vote. . Some lines must
be drawn. To challenge such lines by the "compelling
state interest" standard is to condemn them all. So far
as I am aware, no state law has ever satisfied this seem364
OCTOBER TERM, 1971
BURGER, C. J., dissenting 405 U.S.
ingly insurmountable standard, and I doubt one ever will,
for it demands nothing less than perfection.
The existence of a constitutional "right to travel" does
not persuade me to the contrary. If the imposition of
a durational residency requirement for voting abridges
the right to travel, surely the imposition of an age
qualification penalizes the young for being young, a
status I assume the Constitution also protects.
FEIN v. SELECTIVE SERVICE SYSTEM 365
Syllabus
FEIN v. SELECTIVE SERVICE SYSTEM LOCAL
BOARD NO. 7 OF YONKERS, NEW YORK,
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 70---58. Argued October 12, 1971-Decided March 21, 1972
Following petitioner's classification as a conscientious objector by his
local Selective Service Board, lhe State Director requested an appeal.
Petitioner was notified but was not furnished with the basis
for the appeal or given an opportunity to reply. The appeal board
unanimously classified petitioner I-A and rejected his conscientious
objector claim, without stating any reasons therefor. Petitioner
was not entitled under the regulations to appeal to the national
board, but the National Director, on petitioner's request, did note
an appeal. The national board unanimously classified petitioner
I-A, with no reasons given. There is no outstanding induction
order for petitioner, who brought this pre-induction suit challenging,
on due process grounds, the constitutionality of his Selective
Service appeal procedures. The District Court dismissed the
complaint, finding the suit barred by § 10 (b) (3) of the Military
Selective Service Act of 1967, and the Court of Appeals affirmed.
That section provides that a classification decision of the local
board "shall be final, except where an appeal is authorized," and
that the classification decision on appeal also "shall be final." It
further provides that "[n]o judicial review shall be made of the
classification or processing of any registrant . . . except as a defense
to a criminal prosecution ... after the registrant has responded
either affirmatively or negatively to an order to report
for induction," and then the review "shall go to the question of
the jurisdiction . . only when there is no basis in fact for the
classification." By statute enacted in September 1971, after petitioner's
trial, a registrant is entitled to a personal appearance
before a local or appeal board, and, on request, to a statement of
reasons for any adverse decision. Ensuing changes in regulations,
effective December 1971 and March 1972, provide the procedural
features that petitioner complained were lacking. Held:
1. Section 10 (b) (3) forecloses pre-induction judicial review
where the board has used its discretion and judgment in determining
facts and arriving at a classification for the registrant. Clark
366 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
v. Gabriel, 393 U. S. 256, followed; Oestereich v. Selective Service
Board, 393 U. S. 233, distinguished. In such case the registrant's
judicial review is confined to situations where he asserts his defense
in a criminal prosecution or where, after induction, he seeks
a writ of habeas corpus. Pp. 372-377.
2. Petitioner's immediate induction is not assured, however, in
light of the intervening statutory change, the new regulations
thereunder; and a change in the Government's position, albeit in
a post-induction case, to concede that some statement of reasons
is necessary for "meaningful" review of the .administrative decision
when the regi~trant's claim has met the statutory criteria or has
placed him prima facie within the statutory exemption. Pp. 377-
381.
430 F. 2d 376, affirmed.
BLACKMUN, J., delivered the opm10n of the Court, in which
BURGER, C. J., and BRENNAN and WHITE, JJ., joined. DOUGLAS, J.,
filed a dissenting opinion, post, p. 381. MARSHALL, J., filed a dissenting
opinion, in which STEWART, J., joined, post, p. 387. PowELL and
REHNQUIST, JJ., took no part in the consideration or decision of
the case.
Michael B. Standard argued the cause for petitioner.
With him on the briefs was David Rosenberg.
Solicitor General Gri,swold argued the cause for respondents.
With him on the brief were Assistant Attorney
General Gray, Morton Hollander, and Robert E.
Kopp.
Melvin L. Wulf filed a brief for the American Civil
Liberties Union as amicus curiae urging reversal.
MR. JUSTICE BLACKMUN delivered the opinion of the
Court.
Petitioner Oliver T. Fein is a doctor of medicine. In
February 1969 he filed this pre-induction suit in the
United States District Court for the Southern District
of New York. Jurisdiction was asserted under the federal-
question statute, 28 U. S. C. § 1331, under the civil
rights statute, 28 U. S. C. § 1343, and under the federalofficer
statute, 28 U. S. C. § 1361. Fein challenged, on
FEIN v. SELECTIVE SERVICE SYSTEM 367
365 Opinion of the Court
due process grounds, the constitutionality of his Selective
Service appeal procedures and sought declaratory and
injunctive relief that would prevent his induction into
military service. The defendants are Fein's local board
at Yonkers, New York, the Appeal Board for the
Southern District, the State Selective Service Director,
and the National Appeal Board.
In an unreported memorandum decision, the District
Court dismissed the complaint for want of jurisdiction.
A divided panel of the Second Circuit affirmed. 430
F. 2d 376 (1970). Certiorari was granted, 401 U. S.
953 ( 1971), so that this Court might consider the important
question whether § 10 (b )(3) of the Military
Selective Service Act of 1967, 50 U. S. C. App. § 460
(b)(3),1 permits this pre-induction challenge to Selective
Service appeal procedures.
1 "The decisions of surh local board shall be final, except where
an appeal is authorized and is ta.ken in accordance with such
rules and regulations as the President may prescribe. . . . The decision
of such appeal boards shall be final in cases before them on
appeal unless modified or changed by the President. The President,
upon appeal or upon his own motion, shall have power to determine
all claims or questions with respect to inclusion for, or exemption
or deferment from training and service under this title . . and
the determination of the President shall be final. No judicial review
shall be made of the classification or processing of any registrant
by local boards, appeal boards, or the President, except as a
defense to a criminal prosecution ... after the registrant has responded
either affirmatively or negatively to an order to report for
induction, or for civilian work in the case of a registrant determined
to be opposed to participation in war in any form: Provided, That
such review shall go to the question of the jurisdiction herein reserved
to local boards, appeal boards, and the President only when
there is no basis in fact for the classification assigned to such registrant
.... " 50 U. S. C. App. § 460 (b) (3).
Section 10 (b) (3) of the 1967 Act was amended by Pub. L. 92-129,
§ 101 (a)(26), 85 Stat. 351, approved Sept. 28, 1971. The amendment,
however, did not change that port.ion of § 10 (b) (3) quoted
above.
368 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
I
Fein, born May 5, 1940, registered with his Yonkers
local board at age 18. He was assigned a II-S student
deferment during his undergraduate years at Swarthmore
College and, subsequently, during the period of his
attendance at Case-Western Reserve University School
of Medicine. Upon graduation from medical school,
Fein was assigned a II-A occupational deferment because
of his internship at Cleveland Metropolitan General
Hospital.
In September 1967, while still an intern, Fein wrote
his local board "to declare myself a conscientious objector
to war and the institution which propagates war,
the military." He requested and received SSS Form 150
for conscientious objectors. He promptly completed
and returned the form to the local board.
In the form Fein stated: He believes in a Supreme
Being. The beliefs from which his conscientious objection
springs include the concepts that "human beings
are primarily 'good,' " that this goodness "can only be
realized, if human beings are allowed to fulfill their
potential," and that "all human beings are fundamentally
equal, in terms of their value as human beings."
War violates "this essential being in all men . . . . "
It "fosters irresponsibility for inhuman and cruel acts."
It "demands a style of life, which is violent and hierarchical.
It curbs and extinguishes rather than expands
man's potential." The "substance of my beliefs stems
from this common foundation of all religions. Thus
my beliefs are not merely a personal moral code, but
are ideals which emanate from centuries of religious
tradition." He attributes the shaping of his beliefs
to four principal sources: his parents, the church he
formerly belonged to (a Lutheran body), the civil rights
movement, and medicine. He believes "in the power
FEIN v. SELECTIVE SERVICE SYSTEM 369
365 Opinion of the Court
and values of moral and ethical force," but rejects
"violent force'' except perhaps in defense of self or of
a loved one. His ideals were not articulated by age 18,
but he began to formulate them at Swarthmore. Then
followed a trip to the South; his break with his church;
a summer in Germany where he learned of "biased
American journalism about Cuba"; his helping organize
a trip by students to Cuba; his interest in SNCC; his
work in the slums of San Francisco; his settling in
Cleveland's "Negro ghetto" during his first year at medical
school; his then "full commi~ment to non-violence";
his contact with Students for a Democratic Society,
which provided "a framework for working out my ideals
about justice and equality"; and his "commitment to
cooperative living and the poor community [ which]
stands as a mature expression of my beliefs."
Upon receiving Fein's Form 150 and letters supportive
of his claim, the local board invited him to
appear personally before it. He did so on November 15,
1967. After the interview the board denied him a I-0
classification "at this time." Inasmuch as Fein then
held his II-A classification, this action by the board was
consistent with Selective Service Regulation 32 CFR
§ 1623.2 providing that a registrant be placed in the lowest
class for which he is eligible.
In February 1968, however, Fein was reclassified I-A.
He immediately asked for another personal appearance
before the board. The request was granted and he appeared
on May 27. The board then classified him as
I- 0 and thus gave him his desired conscientious objector
classification.
On June 4 the State Director, pursuant to 32 CFR
§ 1626.1, wrote the appeal board requesting an appeal
and stating, "It is our opinion that the registrant would
not qualify for a I-0 classification as a conscientious
objector." Notice of this was given Dr. Fein by mail.
370 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
Fein then wrote seeking "a statement indicating the
basis for the State Director's appeal" and an opportunity
to reply. No explanation was forthcoming.
The local board forwarded the file to the appeal board.
Accompanying the file was a so-called "brief." This,
as petitioner has conceded,2 was merely a summary of
the file prepared by a lay employee of the board. The
appeal board, by a unanimous 4-0 vote on June 20,
classified Dr. Fein I-A and thus rejected his claim
to conscientious objector status. The board stated no
reasons for its decision. Fein was notified of his
reclassification.
Under 32 CFR § 1627.3 3 a registrant was not entitled
to take an appeal to the presidential, or national, appeal
board from an adverse classification by the state appeal
board made by a unanimous vote. Fein was in this position.
Accordingly, he wrote the National Director of
Selective Service in July and asked that the Director
appeal on his behalf under 32 CFR § 1627.1 (a). Fein's
letter to the Director was detailed. It emphasized his
above-stated beliefs and the way of life to which those
beliefs had guided him. "It should be clear, that I am
willing to serve my country, but only in activities consistent
with my conscience." Fein outlined the administrative
proceedings and listed five claimed inequities:
(1) the appeal board's rejection, upon the appeal by the
State Director, of the local board's classification; (2) the
failure of the Director to state the basis for his challenge;
( 3) the absence of an opportunity to submit supplemental
information before the file was forwarded;
(4) the absence of an opportunity to rebut the State
Director's decision to take an appeal; and ( 5) the absence
of an opportunity for a personal appearance before
the appeal board.
2 Tr. of Oral. Arg. 22.
8 The provision is now 32 CFR § 1627.1 (b) .
FEIN v. SELECTIVE SERVICE SYSTEM 371
365 Opinion of the Court
On July 31 Fein was ordered to report for induction
September 6.
The National Director, however, complied with Fein's
request and noted an appeal. Fein's outstanding induction
order was canceled. He again asked the State
Director for a statement of reasons. He was now advised
that in the State Director's opinion he did not
qualify for a Class I-0 deferment and that the decision
to appeal "was based upon the information contained
in [his] selective service file."
On November 26, 1968, the national board, by a vote
of 3-0, classified Dr. Fein I-A. No reason for this
action was stated.
No new order that Fein report for induction has been
issued.
Fein then instituted this suit. The complaint alleged
that the statute and regulations governing Fein's classification
and appeal violated the Due Process Clause of
the Fifth Amendment in that they did not provide for
a statement of reasons to the registrant for the State
Director's decision to appeal, or for the appeal board's
subsequent decision denying Fein a I-0 classification.
It also alleged that the defendants acted unconstitutionally
by failing to provide Fein with the statements
of reasons, by failing to permit him to submit additional
material for consideration by the appeal boards,
and by refusing him an opportunity to rebut the State
Director's decision to appeal.
The District Court did not reach the merits of the
constitutional claims. While expressing concern about
Fein's ability to establish jurisdiction, the court assumed,
arguendo, that he had done so, but then concluded that
the suit was barred by § 10 (b)(3).
The Second Circuit affirmed, 430 F. 2d, at 377-380,
relying, as did the District Court, upon Oestereich v.
Selective Service Board, 393 U. S. 233 (1968); Clark v.
372 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Gabriel, 393 U. S. 256 (1968); and Boyd v. Clark, 287
F. Supp. 561 (SDNY 1968), aff'd, 393 U. S. 316 ( 1969).
One judge, in separate concurrence, 430 F. 2d, at 380,
also thought that Fein had failed to establish the jurisdictional
amount required under 28 U. S. C. § 1331.
The third judge, citing the same cases as did the majority,
dissented on the statutory issue; on the merits he
would have ruled in Fein's favor. 430 F. 2d, at 380-388.
II
The case pivots, of course, upon the meaning and reach
of § 10 (b )(3), and this Court's decisions in Oestereich,
Gabriel, and Boyd, all supra, and in Breen v. Selective
Service Board, 396 U. S. 460 (1970).
Section 10 (b) (3) states flatly that a classification decision
of the local board "shall be final, except where an
appeal is authorized ... " and that the classification
decision on appeal also "shall be final. ... " It further
provides, "No judicial review shall be made of the classification
or processing of any registrant . . . except as a
defense to a criminal prosecution . . . after the registrant
has responded either affirmatively or negatively
to an order to report for induction .... " Even then,
the review "shall go to the question of the jurisdiction
. . . only when there is no basis in fact for the
classification .... "
The finality language appeared in conscription statutes
prior to the 1967 Act. See Selective Draft Act of
May 18, 1917, § 4, 40 Stat. 80; Selective Training and
Service Act of 1940, § 10 (a)( 2), 54 Stat. 893; and Selective
Service Act of 1948, § 10 (b)(3), 62 Stat. 619.
The Court construed this finality language, however,
as indicating a congressional intent to restrict only the
scope of judicial review and not to deprive the registrant
of all access to the courts. See, for example, Estep v.
United States, 327 U. S. 114 (1946), and McKart v.
FEIN v. SELECTIVE SERVICE SYSTEM 373
365 Opinion of the Court
United States, 395 U.S. 185 (1969). But judicial relief
was confined to the "no basis in fact" situation. Estep,
supra, at 122-123; McKart, supra, at 196.
The "except" clause and the "no basis in fact" language
came into § 10 (b )(3) with the 1967 statute by
way of prompt congressional reaction provoked by the
Second Circuit's decision in Wolff v. Selective Service
Local Bd., 372 F. 2d 817 (1967). See H. R. Rep. No.
267, 90th Cong., 1st Sess., 30-31; 113 Cong. Rec. 15426.4
Section 10 (b)(3), as so amended, was promptly challenged.
In Oestereich the Court refrained from striking
down the statute on constitutional grounds. It held,
however, that pre-induction judicial review was available
to that petitioner who, a~ a divinity student, claimed
his local board had wrongfully denied him a statutory
exemption from military service. To rule otherwise "is
to construe the Act with unnecessary harshness." And,
"No one, we believe, suggests that § 10 (b)(3) can sustain
a literal reading." This construction, it was said,
leaves the section "unimpaired in the normal operations
of the Act." 393 U.S., at 238. See Gutknecht v. United
States, 396 U. S. 295, 303 (1970), where reference was
made to the "unusual circumstances" of Oestereich.
In the companion Gabriel case, on the other hand, the
registrant was asserting a conscientious objector claim.
The Court said:
"Oestereich, as a divinity student, was by statute
unconditionally entitled to exemption. Here,
by contrast, there is no doubt of the Board's statutory
authority to take action which appellee challenges,
and that action inescapably involves a de-
4 S. Rep. No. 209, 90th Cong., 1st Sess., 10, contained the observation
that a registrant may also challenge his classification by postinduction
habeas corpus. See Witmer v. United States, 348 U. S.
375,377 (1955).
374 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
termination of fact and an exercise of judgment ....
To allow pre-induction judicial review of such determinations
would be to permit precisely the kind
of 'litigious interruptions of procedures to provide
necessary military manpower' (113 Cong. Rec. 15426
(report by Senator Russell on Conference Committee
action)) which Congress sought to prevent when
it enacted § 10 (b)(3)." 393 U. S., at 258-259.
The constitutionality of the statute again was upheld.
Id., at 259. MR. JUSTICE DouGLAS, separately concurring,
noted hypothetical fact situations as to which he
might take a different view and then observed:
"But in my view it takes the extreme case where
the Board can be said to flout the law, as it did in
Oestereich v. Selective Service Bd., [393 U. S. 233],
to warrant pre-induction review of its actions." 393
U. S., at 260.
Oestereich was complemented by Breen a year later with
respect to a registrant statutorily entitled to a deferment
rather than to an exemption. See also Kolden v. Selective
Service Board, 397 U.S. 47 (1970).
Finally, pre-induction review was denied under § 10
(b)(3) in Boyd v. Clark, 287 F. Supp. 561 (SDNY
1968), a decision affirmed here, 393 U. S. 316 (1969),
with only a single ref ere nee to Gabriel, decided just four
weeks before. In Boyd, four registrants, each classified
I-A, challenged student deferment on the ground that it
discriminated against those financially unable to attend
college. They did not otherwise contest their own I-A
classifications.
Thus Oestereich, Gabriel, Breen, and Boyd together
establish the principles (a) that § 10 (b )(3) does not
foreclose pre-induction judicial review in that rather
rare instance where administrative action, based on reasons
unrelated to the merits of the claim to exemption or
FEIN v. SELECTIVE SERVICE SYSTEM 375
365 Opinion of the Court
deferment, deprives the registrant of the classification to
which, otherwise and concededly, he is entitled by statute,
and (b) that § 10 (b )(3) does foreclose pre-induction
judicial review in the more common situation where the
board, authoritatively, has used its discretion and judgment
in determining facts and in arriving at a classification
for the registrant. In the latter case the registrant's
judicial review is confined-and constitutionally so-to
the situations where he asserts his defense in a criminal
prosecution or where, after induction, he seeks a writ of
habeas corpus. By these cases the Court accommodated
constitutional commands with the several provisions of
the Military Selective Service Act and the expressed
congressional intent to prevent litigious interruption of
the Selective Service process.
III
These principles do not automatically decide Fein's
case. The doctor, unlike Oestereich and unlike Breen,
cannot and does not claim a statutory exemption or a
statutory deferment on the basis of objectively established
and conceded status. On the otber hand, while Gabriel
focuses on the administrative and discretionary process,
it does not necessarily foreclose Fein's claim. This is so
because Fein challenges the constitutionality of the very
administrative procedures by which, he claims, the presentation
of his case was adversely affected.
This was the aspect of the Oestereich and Breen decisions
that concerned Mr. Justice Harlan. 393 U. S.,
at 239; 396 U. S., at 468-469. He would have allowed
pre-induction judicial review of a procedural challenge
on constitutional grounds if it presented no "opportunity
for protracted delay" in the system's operations, and if
the issue was beyond the competence of the board to
hear and determine. This view, however, commanded
the vote of no other member of the Court.
376 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
We again conclude that the line drawn by the Court
between Oestereich and Breen, on the one hand, and
Gabriel and, inferentially, Boyd, on the other, is the
appropriate place at which, in the face of the bar of
§ 10 (b )(3), to distinguish between availability and unavailability
of pre-induction review. We therefore adhere
to the principles established by those cases.
\Ve further conclude that, as measured against the facts
of Fein's case, it is Gabriel, and not Oestereich and Breen,
that is controlling. Unlike the registrants in Oestereich
and Breen, Fein's claimed status is not one that was
factually conceded and thus was assured by the statute
upon objective criteria. His administrative classification
action was, in contrast, a product of the "process"
and the "system of classification," as the petitioner
stressed at oral argument." It turned "on the weight
and credibility of the testimony," as MR. JusTrCE Doua-
LAS noted in his concurrence in Gabriel, 393 U. S., at 259.
And it was "dependent upon an act of judgment by the
Board." Gabriel, 393 U. S., at 258.
The case strikes us, as did Gabriel, as representative
of a category that, if allowed pre-induction review, would
tend to promote the "litigious interruptions of procedures
to provide necessary military manpower" that
Congress intended to prevent. 113 Cong. Rec. 15426.
The conscientious objector claim is one ideally fit for
administrative determination.
We are not persuaded, as has been suggested,° that the
local board's grant of the I-0 classification equates with
the conceded exemption and deferment involved in
Oestereich and Breen. Objective certainty of status is
lacking; in addition, the respective rulings of the two
appeal boards were themselves based on an evaluation
of the same file and yet were opposite to that of the
5 Tr. of Oral Arg. 13, 18.
6 ld., at 16-18.
FEIN v. SELECTIVE SERVICE SYSTEM 377
365 Opinion of the Court
local board. It is true that in Oestereich and Breen a
result favorable to the registrant was also reversed, but
there the change came about only by the board's consideration
of extraneous circumstances apart from the
merits of the underlying claims.
Finally, we find no merit in the petitioner's argument,
apparently asserted for the first time in this Court, that
a local board's determination, on a conscientious objector
claim, favorable to the registrant is not amenable to the
appeal procedures prescribed by the Act. Section 10 (b)
(3), by its terms, makes a board's decision final subject
to appeal and we see no confinement of that right of appeal
to the registrant alone so as to nullify the regulations'
express grant of appellate power to the State Director
as well as to the registrant. The statute, furthermore,
is specific as to the Presiqent's right to review.
The conclusion we have reached makes it unnecessary
to consider in any detail the propositions, urged by the
respondents, that the petitioner has not demonstrated
the presence of the jurisdictional amount required under
28 U. S. C. § 1331, and that his arguments are premature
because he is presently not the subject of an outstanding
induction order.
IV
All this does not mean, however, that this decision
assures Dr. Fein's immediate induction into military
service. Events since the inception and trial of the
case indicate otherwise:
A. The 1971 Statute. By Pub. L. 92-129, § 101 (a)
(36), 85 Stat. 353, approved September 28, 1971,
the following new section, 50 U. S. C. App. § 471a (1970
ed. Supp. I), was added to the 1967 Act, now renamed
the Military Selective Service Act:
"Procedural Rights
"SEC. 22. (a) It is hereby declared to be the
purpose of this section to guarantee to each regis378
OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
trant asserting a claim before a local or appeal
board, a fair hearing consistent with the informal
and expeditious processing which is required by
selective service cases.
"(b) Pursuant to such rules and regulations as
the President may prescribe-
"(l) Each registrant shall be afforded the opportunity
to appear in person before the local or any
appeal board of the Selective Service System to
testify and present evidence regarding his status.
"(4) In the event of a decision adverse to the
claim of a registrant, the local or appeal board
making such decision shall,· upon request, furnish
to such registrant a brief written statement of the
reasons for its decision."
A registrant thus is now statutorily entitled to a personal
appearance before a local or appeal board and, on request,
to a statement of reasons for any decision of the
board adverse to him. This 1971 addition to the statute
does not, by its terms, purport to be retroactive.
B. The Emerging Regulations. In implementation of
the new statute, the administrative regulations have been
undergoing change. Some amendments were promulgated
effective December 10, 1971. 36 Fed. Reg. 23374--
23385. Others were promulgated effective March 11,
1972. 37 Fed. Reg. 5120-5127. From these it appears
that all, or nearly all, the procedural features about which
Dr. Fein complains in the present case have been changed
administratively. Specifically: ( 1) When an appeal is
taken by the State Director "he shall place in the
registrant's file a written statement of his reasons for
taking such appeal." The local board shall notify
the registrant in writing of the action and the reasons
therefor, and advise him that the registrant may reFEIN
v. SELECTIVE SERVICE SYSTEM 379
365 Opinion of the Court
quest a personal appearance before the appeal board.
§§ 1626.3 (a) and (b). (2) At such personal appearance
the registrant may present evidence, discuss
his classification, point out the class or classes in
which he thinks he should have been placed, and may
direct attention to any information in his file that
he believes the local board has overlooked or to which
it has given insufficient weight. He may present such
further information as he believes will assist the board.
The registrant, however, may not be represented before
an appeal board by anyone acting as attorney and
he shall not be entitled to present witnesses. §§ 1624.4
(e) and (d). (3) If the appeal board classifies the
registrant in a class other than the one he requested,
it shall record its reasons therefor in his file. The local
board shall inform the registrant of such reasons in
writing at the time it mails his notice of classification.
§ 1626.4 (i). (4) On the director's appeal to the national
board the registrant may request an appearance.
§ 1627.3 (d). At that appearance the registrant may
present evidence, other than witnesses, bearing on his
classification. There, too, he may discuss his classification,
point out the class or classes in which he thinks he
should have been placed, and direct attention to any
information in his file that he believes the local board
overlooked or to which it has given insufficient weight.
He may also present such further information as he believes
will assist the national board in determining his
proper classification. §§ 1627.4 (c) and (e). (5) If
the national board classifies the registrant in a class other
than the one he requested it shall record its reasons
therefor in his file and on request by the registrant it
shall furnish him a brief statement of the reasons for
its decision. § 1627.4 (h).
Thus, under present procedure effective in part since
December 10, 1971, and in part since March 11, 1972,
380 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
complaints about one's inability to appear before appeal
boards, about not being given reasons for adverse
classifications, and about inability to present additional
material at the appellate stages are all alleviated and,
indeed, eliminated.
C. The Change in the Government's Position. In
their brief filed prior to the adoption of the 1971 Act,
the respondents acknowledged the appearance of "a
relatively recent line of authority" exemplified by United
States v. Hau(lhton, 413 F. 2d 736 (CA9 1969), to the
effect that the failure of a local board to articulate in
writing the reason for its denial of a conscientious objector
classification is a fatal procedural flaw when the
registrant has made a prima facie case for such status.7
Brief 52-53. The rationale .is that some statement
of reasons is necessary for "meaningful" review 8 of the
administrative decision when the registrant's claim has
met the statutory criteria or has placed him prima facie
within the statutory exemption, and his veracity is the
principal issue.
The respondents appropriately noted, however, that
these decisions were all so-called post-induction cases
in the sense that they were appeals from convictions
under § 12 (a), 50 U. S. C. App. § 462 (a). The respondents
accordingly took the position that this line
of authority, however appropriate it might be for postinduction
review, did not support or justify an exception
7 See also United States v. Edwards, 450 F. 2d 49 (CAI 1971);
United States v. Lenhard, 437 F. 2d 936 (CA2 1970); Scott v. Commanding
Officer, 431 F. 2d 1132 (CA3 1970); United States v.
Broyles, 423 F. 2d 1299 (CA4 1970); United States v. Stetter, 445
F. 2d 472 (CA5 1971); United States v. Washington, 392 F. 2d 37
(CA6 1968); United States v. Lemmens, 430 F. 2d 619 (CA7 1970);
United States v. Cummins, 425 F. 2d 646 (CA8 1970); United States
v. Pacheco, 433 F. 2d 914 (CAlO 1970).
8 See Gonzales v. United States, 348 U. S. 407, 415 (1955).
FEIN v. SELECTIVE SERVICE SYSTEM 381
365 DOUGLAS, J., dissenting
to the bar of § 10 (b) (3) against pre-induction review
of the processing or classifying of registrants.
In a memorandum filed here since the 1971 Act in
No. 70-251, Joseph v. United States, cert. granted, 404
U. S. 820 (1971), the Government has now taken the
position that "[a]lthough this judicial rule [of Haughton
and its progeny] finds little support in early precedent
... we do not think it appropriate to contend
that it is erroneous." The Government also notes that
the requirement for an administrative statement of
reasons "seems fully consistent with the new statutory
... and regulatory ... provisions on this point."
Memo 13, 14.
While Joseph also is a conviction case and is not one
on pre-induction review, its obvious significance for Fein
is that if the doctor is ever again called for induction,
the rule of Haughton will provide a defense for him
unless and until the requirements of the new statute
and regulations are fulfilled. Whether this necessitates
a complete reprocessing of Fein's case is a matter we
leave in the first instance to the administrative
authorities.
The judgment of the Court of Appeals is therefore
to be affirmed. We express no view upon the merits of
Dr. Fein's conscientious objector claim other than to
observe the obvious, namely, that his claim is not
frivolous.
Affirmed.
MR. JusTICE POWELL and MR. JusTICE REHNQUIST
took no part in the consideration or decision of this case.
MR. JUSTICE DouGLAS, dissenting.
I
Today the Court approves a construction of § 10 (b)
(3) of the Military Selective Service Act of 1967, 50
382 OCTOBER TERM, 1971
DoUGLAS, J., dissenting 405 U.S.
U.S. C. App. § 460 (b) (3) ,1 which raises serious questions
of procedural due process. Doctor Fein was classified as
a conscientious objector by his local board. The State
Director appealed, but gave no reason for this extraordinary
action.2 The appeal board then reclassified Dr.
Fein I-A. It, too, gave no reasons.
We explained the nature of the "hearing" required by
the Due Process Clause of the Fifth Amendment m
Morgan v. United States, 304 U. S. 1, 18-19:
"The right to a hearing embraces not only the
right to present evidence but also a reasonable opportunity
to know the claims of the opposing party
and to meet them. The right to submit argument
implies that opportunity; otherwise the right may be
but a barren one. Those who are brought into
contest with the Government in a quasi-judicial proceeding
aimed at the control of their activities are
entitled to be fairly advised of what the Government
proposes and to be heard upon its proposals
before it issues its final command."
See Mullane v. Central Hanover Trmt Co., 339 U. S.
306, 313; Jenkins v. M cKeithen, 395 U. S. 411; Greene
1 Section 10 (b) (3) reads in pertinent part as follows:
"No judicial review shall be made of the classification or processing
of any registrant by local boards, appeal boards, or the President,
except as a defense to a criminal prosecution instituted under section
12 of this title, after the registrant has responded either
affirmatively or negatively to an order to report for induction, or for
civilian work in the case of a registrant determined to be opposed
to participation in war in any form: Provided, That such review
shall go to the question of the jurisdiction herein reserved to local
boards, appeal boards, and the President only when there is no
basis in fact for the classification assigned to such registrant."
2 Except the somewhat cryptic statement that "[i]t is our opinion
that the registrant would not qualify for a I-0 classification as a
conscientious objector."
FEIN v. SELECTIVE SERVICE SY8TEM 383
365 DouGLAS, J., dissenting
v. McElroy, 360 U.S. 474,493; Baltimore & Ohio R. Co.
v. United States, 298 U. S. 349, 368-369.
Morgan involved property rights-rates for stockyard
services. But the Due Process Clause protects "life"
and "liberty" as well as "property." See Kwong Hai
Chew v. Colding, 344 U. S. 590, 596-598. If a man,
contrary to his scruples, is forced to go overseas to battle,
he is deprived of his "liberty," if not his "life."
When administrative orders deprive a person of property
without a full and fair opportunity to object, this
Court has been most reluctant to defer judicial review
until after those orders have taken effect. See Opp Cotton
Mills v. Administrator, 312 U. S. 126, 152-153;
United States v. Illinois Central R. Co., 291 U. S. 457,
463; Londoner v. City & County of Denver, 210 U. S.
373, 385. Judicial scrutiny has been particularly close
where, as here, review is conditioned upon submitting to
the risk of substantial penalties should the order prove
to have been validly made. See Oklahoma Operating
Co. v. Love, 252 U. S. 331; Ex parte Young, 209
U. S. 123. Cf. Reisman v. Caplin, 375 U. S. 440, 446-
450. We should require no less when personal liberty is
at stake.3
How can we possibly affirm the judgment below in
light of the constitutional dimension of the problem?
As respects his claim to "liberty," is Fein to be relegated
to the procedures of a criminal prosecution when Congress
was meticulous to provide for its resolution in the
administrative process? No such downgrading of rights
3 Some courts, however, have been more zealous in their exaltation
of property rights than they have of constitutionally safeguarded
individual liberties. See, e.g., Poole v. State, 244 Ark. 1222,
1225, 428 S. W. 2d 628, 630:
"The right of an individual to acquire and possess and protect
property is inherent and inalienable and declared higher than any
constitutional sanction in Arkansas .... "
384 OCTOBER TERM, 1971
DOUGLAS, J., dissenting 405 U.S.
would be tolerated in a "property" case; why are we
less mindful of the requirements of due process when a
man's "liberty" is at stake?
II
Section 10 (b) (3) purports to defer judicial review of
Selective Service System classification decisions to the
defense of a criminal prosecution for failure to report for
induction. It represents_ a congressional response to the
concern that widespread pre-induction review of Selective
Service classification decisions would seriously impede
the ability of the System to process manpower for
the Armed Forces. See remarks of Senator Russell,
113 Cong. Rec. 15426. We held in Oestereich v.
Selective Service Board, 393 U. S. 233, however, that
the statute cannot be read literally. "For while it purports
on its face to suspend the writ of habeas corpus
as a vehicle for reviewing a criminal conviction under the
Act, everyone agrees that such was not its intent." Id.,
at 238. We held that it must be interpreted to permit
pre-induction review in that exceptional class of cases
involving "a clear departure by the Board from its statutory
mandate." 393 U. S., at 238. Because Ostereich's
local board had employed unauthorized and "lawless"
procedures to deprive him of an exemption to which he
was entitled by statute, we further held that § 10 (b) (3)
was no bar to the suit. See also Breen v. Selective Service
Board, 396 U. S. 460.
The courts below, relying on Clark v. Gabriel, 393 U.S.
256, held that, unlike the ministerial exemption (IV-D)
at issue in Oestereich and the student deferment (II-S)
in Breen, the conscientious objector exemption (I- 0)
is committed to the discretion of the board, and
contemplates the complex evidentiary and factual determinations
which § 10 (b) (3) primarily intended to
insulate from pre-induction review. Were Fein comFEIN
v. SELECTIVE SERVICE SYSTEM 385
365 DouGLAs, J., dissenting
plaining that his appeal board had no basis in fact to
discontinue his conscientious objector exemption, this
distinction would be significant.
The fact that Fein was classified I-0 by his local
board (rather than IV-D or II-S) before being
stripped of his exemption does not, however, distinguish
his case from Oestereich. Indeed, it is Clark v.
Gabriel, supra, on which the majority and lower court
placed such heavy reliance for the opposite proposition,
that demonstrates the applicability of Oestereich to the
present situation.
Gabriel's conscientious objector claim had been rejected
by his local board, after "evaluating evidence
and . . . determining whether a claimed exemption is
deserved." Oestereich, supra, at 238. His basic argument
was that there was no basis in fact to deny him
his exemption. As the Court said, however, there was
"no doubt of the Board's statutory authority to take
action which appellee challenges, and that action
inescapably involves a determination of fact and an
exercise of judgment.. By statute, classification as a
conscientious objector is expressly conditioned on
the regi,strant's claim being 'sustained by the local
board."' 393 U. S., at 258 (emphasis supplied).
But Fein's claim, unlike that of Gabriel, has been "sustained
by the local board." Thus, by statute, it is mandatory
that the exemption be awarded him-subject, of
course, to subsequent action in accordance with lawful,
authorized procedures. But this is the situation which
obtained in Oestereich. The exemption at issue in that
case could also have been removed in accord with lawful
procedures. The crucial similarity is that both Oestereich
and Fein have met the preliminary hurdle of demonstrating
to the local board their statutory fitness for a given
exemption.
386 OCTOBER TERM, 1971
DouGLAS, J., dissenting 405 U.S.
The nature of Dr. Fein's claim is that the Selective
Service System has been "blatantly lawless," not in taking
away his exemption per se, but in doing so in a manner
which violates the mandate of § 1 ( c) of the Act,
50 U. S. C. App. § 451 ( c), that the system be administered
in a way "which is fair and just .... "
It should by now be undisputed that an essential of a
"fair and just" procedure is the registrant's right to be
heard by the agency in the system that deprives him of
his liberty.4 To be meaningful, that hearing must include
the right to appear, and to be apprised of and given
a chance to reply to adverse information contained in
one's file. Dr. Fein was afforded none of these rights.
The regulations did not permit a personal appearance
before the appeal board. Dr. Fein was not informed of
the reasons for the appeal. He had no right to submit
a statement of his own, as the State Director, the person
appealing, had not submitted a statement. 32 CFR
§ 1626.12. Dr. Fein never even received a·statement of
reasons for the appeal board's reclassification, a defalcation
which the Solicitor General has conceded to be error
in a similar context. Memorandum for the United States,
Joseph v. United States, No. 70--251. See also Memorandum
for the United States, Lenhard v. United States,
No. 71-5840.
Like Oestereich's, therefore, Fein's complaint is "unrelated
to the merits of granting or continuing that exemption,"
393 U. S., at 237. It is instead a challenge to the
• See, e.g., Clay v. United States, 403 U.S. 698; Mulloy v. United
States, 398 U.S. 410,416; Gonzales v. United States, 348 U.S. 407,
417; Simmons v. United States, 348 U.S. 397,405. See also Greene
V. McElroy, 360 U.S. 474, 493; Morgan v. United States, 304 U.S.
l, 18-19; Baltimore & Ohio R. Co. v. United States, 298 U.S. 349,
368-369; United States v. Thompson, 431 F. 2d 1265, 1271; United
States v. Cabbage, 430 F. 2d 1037, 1039-1041; United States v.
Cummins, 425 F. 2d 646; United States v. Owen, 415 F. 2d 383,
388-389; Wiener v. Local Bd. No. 4, 302 F. Supp. 266,270.
FEIN v. SELECTIVE SERVICE SYSTEM 387
365 MARSHALL, J., dissenting
basic fairness of the administrative process itself. And,
while Fein himself characterizes his attack as a "constitutional"
one, the procedural guarantees which he says
were denied him are implicit in the Act itself. It is as
unlawful to employ the regulations governing the appeal
procedure to deny fundamental procedural rights implicit
in the statutory scheme as it was in Oestereich and Breen
to use the regulations governing delinquency to work a
similar deprivation.
The literalness with which the Court treats Dr. Fein's
claim "does violence to the clear mandate of" § 1 ( c) of
the Act, and misconstrues the thrust of Oestereich,
Gabriel, and Breen. Fein's claim presents a clear case
for pre-induction review. As in Oestereich, we have
here a case where the Selective Service System is itself
"basically lawless." On the admittedly extraordinary
facts of this case, Fein has been effectively deprived
of the entire panoply of appellate remedies guaranteed
to him by the Act, and put in a posit;.on wherein
meaningful judicial review of the underlying classification
decision has become a virtual impossibility.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE
STEWART joins, dissenting.
I dissent. Today's holding reinterprets Oestereich v.
Selective Service Board, 393 U.S. 233 (1968), to establish
a principle that serves no sensible purpose. If
Oestereich is to be preserved, it must be rooted in a
principle that permits pre-induction review in this case
as well.
As the majority correctly observes, our decision in
Oestereich foreclosed any further argument that § 10 (b)
(3) constitutes an absolute bar to pre-induction judicial
review. "No one, we believe, suggests that § 10 (b)
(3) can sustain a literal reading." Id., at 238.
Having thus adopted in Oestereich, and reaffirmed in
388 OCTOBER TERM, 1971
MARSHALL, J., dissenting 405 U.S.
Breen v. Selective Service Board, 396 U. S. 460 (1970),
an interpretation of the Act that permits pre-induction
review in some cases, we need decide today only whether
Dr. Fein raises that sort of exceptional claim appropriate
for pre-induction review.
The majority apparently holds that pre-induction review
is available only where a registrant's "claimed
status is ... factually conceded and thus [is] assured
by the statute upon objective criteria." Ante, at 376. I
confess that I do not altogether understand these key
words in the majority's test. But I fathom enough
to conclude that the test makes little sense. Although
petitioner challenges only the procedures used
by the Selective Service System, and does not ask
this Court to decide the merits of his conscientious
objector (CO) claim, he loses his lawsuit because his
entitlement to a CO classification is not "factually conceded"
or "objectively certain." But the merits of petitioner's
CO claim are not at issue in this pre-induction
litigation. I can think of no reasons for an approach
that ignores the actual pre-induction claim, and that
permits pre-induction review only where "objective
certainty of [the registrant's] status" exists. Ibid.
Oestereich should not be recast this narrowly.
The majority says that there can be pre-induction review
only when the registrant's status is assured "upon
objective criteria." This, by itself, might only mean that
where status turns on unconceded factual claims-as opposed
to more "objectively" determined legal claimspre-
induction review is barred. But the heart of the
majority's test is that pre-induction review is permitted
only when there is "objective certainty" of status.
Obviously, this approach is not immediately suggested
by the words of § 10 (b) ( 3) 1 which proscribes preinduction
review "of the classification or processing
of any registrant." Nor does it avoid the "unnecessary
FEIN v. SELECTIVE SERVICE SYSTEM 389
365 MARSHALL, J., dissenting
harshness" that the majority concedes Oestereich sought
to prevent. Where the registrant's status is "objectively
certain," or where the Government concedes that it will
not prosecute the registrant if he refuses induction and
will confess error if he submits to induction and brings a
habeas corpus action, the registrant is "least jeopardized
by the procedural limitations of§ 10 (b) (3)." Oestereich
v. Selective Service Board, 393 U. S., at 251 (STEWART,
J., dissenting). Where there is no pre-induction review,
the harsher burden falls on the registrant whose
rights and ultimate status are not free from doubt
or conceded. He is the one faced with the enormous
uncertainties of a criminal prosecution for refusing induction;
and should he submit to what he thinks is an
illegal induction, anticipating relief through habeas
corpus, his uncertain prospects make it unlikely that he
could avoid the massive dislocations of induction itself
( e. g., giving up a job, leaving school). In short, the
majority's theory of pre-induction review helps the wrong
people.1
A viable approach to the problem of pre-induction review
is to be found by comparing Oestereich with the
other § 10 (b) (3) case decided on the same day, Clark
v. Gabriel, 393 U. S. 256 (1968). In Clark v. Gabriel,
we interpreted § 10 (b) (3) to bar pre-induction review
where the challenged action "inescapably involves a de-
1 The cases in which the majority would permit pre-induction review
are not those in which Selective Service manpower gathering
processes are "interrupted" to a distinctively minimal extent.
"Litigious interruption" comes from the ordinary processes of any
litigation, the delays built in the Federal Rules. These interruptive
time delays are not significantly shortened in lawsuits where the
Government makes crucial concessions at the appeal stage (as in
Oestereich), or where the pertinent determination is whether a registrant's
status is "objectively certain." A day or two of court iime
may be saved, but, given the duration of the entire litigation, this
is insignificant.
390 OCTOBER TERM, 1971
MARSHALL, J., dissenting 405 U.S.
termination of fact and an exercise of judgment"; thus,
we refused to allow pre-induction review where the registrant
claimed, on the facts, that he was entitled to a CO
classification. However, we permitted pre-induction review
in Oestereich, supra, where the local board's action,
taken pursuant to a purportedly valid disciplinary regulation,
was in claimed conflict with rights to exemption
assured by statute. Cf. Breen v. Selective Service Board,
supra.2 For reasons that will become clearer below, the
crucial difference for me between the cases is that in
Oestereich ( and Breen) the registrant challenged a purportedly
valid Selective Service rule of general application,
the validity of which the administrative process
could not competently adjudicate before induction.
At issue in Dr. Fein's case are Selective Service appeal
procedures, general rules that are said to be invalid
under the Constitution. At stake is not a board determination
"processing or classifying" an individual
registrant,3 but general procedu_res prescribing the way
such determinations are made. The situation here is
substantially similar to Oestereich, and altogether different
from the one in Clark v. Gabriel. In Oestereich,
as former Chief Judge Lumbard noted in dissent below.
"[T]he registrant challenge[d] a procedure unauthorized
by statute, while claiming that the regula-
2 The majority relies on Boyd v. Clark, 287 F. Supp. 561 (SDNY
1968), which we summarily affirmed, 393 U. S. 316 ( 1969), with a
single citation of Clark v. Gabriel, 393 U. S. 256 ( 1968). Although
the District Court dismissed the lawsuit on two grounds-that preinduction
review was improper and that the jurisdictional amount requirement
had not been met-we affirmed on the single ground that
pre-induction review was improper, as our simple reference to Clark
v. Gabriel was designed to indicate. That reference should not be
overburdened with significance. Since those registrants, who had
never received an induction notice, had not reached a position of
finality within the system, pre-induction review was inappropriate.
3 Section 10 (b) (3) proscribes pre-induction review "of the classification
or processing of any registrant . . . ."
365
FEIN v. SELECTIVE SERVICE SYSTEM 391
MARSHALL, J., dissenting
tion deprive [ d] him of a right based on higher
authority. The difference, which I do not deem
significant, is that in Oestereich the conflict posed was
between a [Selective Service] regulation-the delinquency
provision-and a statutory command, the
ministerial exemption." 430 F. 2d 376, 382 ( 1970).
Here, Selective Service appellate procedures, implemented
under Selective Service regulations 32 CFR § 1626 et
seq., arguably conflict with the constitutional requirements
of the Due Process Clause, "surely an a fortiori case
for preinduction review." Ibid. In Oestereich, Breen,
and this case, the Selective Service System relied on
rules, purportedly valid, that are challenged as illegal
in their general application.
In Clark v. Gabriel, the registrant challenged the factual
and judgmental determination that he was not entitled
to a conscientious objector classification. But Dr.
Fein does not challenge that individualized judgment
in his pre-induction suit. Here, the registrant's local
board found him entitled to a CO classification, and then
this presumptively correct classification was taken away
pursuant to allegedly lawless and unconstitutional procedures.'
The facial validity of these procedures is the
only issue here. In neither Oestereich, Breen, nor this
case would pre-induction inquiry look to discretionary determinations
of the System, or to factual judgments of
the local or appeal board. (Nor is there any dispute in
4 The majority notes:
"It is true that in Oestereich and Breen a result favorable to the
registrant was also reversed, but there the change came about only
by the board's consideration of extraneous circumstances apart from
the merits of the underlying claims." Ante, at 377.
This distinction is indeed ironic. One of Fein's basic claims in this
lawsuit is that absent a statement of reasons by the Appeal Board
that took away his CO classification, there is no way of knowing
whether that action was based on extraneous circumstances or
whether it was lawful.
392 OCTOBER TERM, 1971
MARSHALL, J., dissenting 405 u. s.
our case that the challenged procedures were actually
followed here.)
In my view, pre-induction judicial review should be
permitted where the registrant claims that generally applied
rules administered by Selective Service are invalid,
and where the administrative process is not competent to
decide the registrant's claim. Unlike the approach of
the majority, this approach would benefit an appropriate
group of registrants, without doing violence
to Congress' apparent purposes in passing § 10 (b)
(3). While the majority opinion in Oestereich was
directed narrowly to the facts there presented, the
decision may fairly be said to recognize that § 10
(b) (3) was intended to be an integral part of the
complex machinery designed by Congress to raise an
army fairly and expeditiously. In my view, § 10 (b)(3)
reflected two related assumptions of Congress. First,
Congress assumed procedural regularity in the administrative
system. Where the general administrative procedures
are valid-where procedural regularity is acknowledged-
individual "classification or processing"
determinations may be presumed correct, and preinduction
review would be an unwarranted interference
with an orderly induction system. More generally, as I
view § 10 (b) (3), Congress wanted to make clear that
since it had provided an elaborate administrative procedure
in which registrants have a full opportunity to
raise their claims, they should not be allowed to have
duplicative judicial review of the administrative determinations
before induction. These premises justifying
a ban on pre-induction review may be undercut in
particular cases, and in such cases pre-induction review
should be permitted. Where, as in Dr. Fein's case, the
underlying procedures of the classification system are
themselves challenged-where Congress' presumption of
procedural regularity is called into question-pre-inducFEIN
v. SELECTIVE SERVICE SYSTEM 393
365 MARSHALL, J., dissenting
tion review should be permitted. And where, as here,
a registrant makes a claim not suited for administrative
determination even in the first instance, pre-induction
judicial review would not duplicate the administrative
process and therefore should be permitted. Of course,
where the correctness of a particular classification is at
issue, the administrative process usually has an opportunity
to decide whether the claimed error exists, and
pre-induction review would be inappropriate. But a
Selective Service Board of laymen does not have the
competence to decide Dr. Fein's claim that generally
applied Selective Service procedures are unconstitutional.
Without pre-induction judicial review, Dr. Fein's liberty
is taken without any competent body deciding the constitutional
question he raises. Cf. Oestereich v. Selective
Service Board, supra, at 243 (Harlan, J., concurring
in result). Section 10 (b) ( 3) does not require such a
harsh result, at odds with the spirit, if not the letter, of
so many of our constitutional decisions.
I would permit pre-induction review in this case, and
would remand for consideration of the merits of petitioner's
claims.
394 OCTOBER TERM, 1971
Syllabus 405 U.S.
COMMISSIONER OF INTERNAL REVENUE v.
FIRST SECURITY BANK OF UTAH, N. A.,
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No. 70---305. Argued January 10, 1972-Decided March 21, 1972
Respondent banks were subsidiaries of a holding company that also
controlled a management company, an insurance agency, and, from
1954, an insurance company (Security Life). In 1948 the banks
began to offer to arrange credit life insurance for their borrowers,
placing the insurance with an independent insurance carrier.
National banking laws were deemed to prohibit the banks from
receiving sales commissions, which were paid by the carrier to the
insurance agency subsidiary. The commissions were reported as
taxable income for the 1948-1954 period by the management company.
After 1954, when Security Life was organized, the credit
life insurance on the banks' customers was placed with an independent
carrier, which reinsured the risks with Security Life, the
latter retaining 85% of the premiums. No sales commissions were
paid. Security Life reported all the reinsurance premiums on its
income tax returns for the period 1955 to 1959, at the preferential
tax rate for insurance companies. Petitioner, pursuant to 26
U.S. C. § 482, granting him power to allocate gross income among
controlled corporations in order to reflect the actual incomes of
the corporations, determined that 40% of Security Life's premium
income was allocable to the banks as commission income earned
for originating and processing the credit life insurance. The Tax
Court affirmed petitioner's action, but the Court of Appeals reversed.
Held: Since the banks did not receive and were prohibited
by law from receiving sales commissions, no part of the reinsurance
premium income could be attributed to them, and petitioner's exercise
of the§ 482 authority was nut warranted. Pp, 403-407.
436 F. 2d 1192, affirmed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C. J., and DouGLAs, BRENNAN, STEWART, and REHNQUIST, JJ.,
joined. MARSHALL, J., filed a dissenting opinion, post, p. 407.
BLACKMUN, J., filed a dissenting opinion, in which WHITE, J., joined,
post, p, 418.
COMMISSIONER v. FIRST SECURITY BANK OF UTAH 395
394 Opinion of the Court
Ernest J. Brown argued the cause for petitioner. On
the brief were Solicitor General Griswold, Acting Assistant
Attorney General Ugast, Matthew J. Zinn, and
Bennet N. Hollander.
Stephen H. Anderson argued the cause for respondents.
With him on the brief was S. J. Quinney.
Ernest Getz filed a brief for Bud Kouts Chevrolet
Co. et al. as amici curiae urging affirmance.
MR. JUSTICE PowELL delivered the opinion of the
Court.
This case presents for review a determination by the
Commissioner of Internal Revenue (Commissioner),
pursuant to § 482 of the Internal Revenue Act,' that
the income of taxpayers within a controlled group should
be reallocated to reflect the true taxable income of each.
Deficiencies were assessed against respondents. The
Tax Court affirmed the Commissioner's action, and
respondents appealed to the Court of Appeals for the
Tenth Circuit. That court reversed the decision of the
Tax Court, 436 F. 2d 1192 (1971), and we granted the
Commissioner's petition for certiorari to resolve a conflict
between the decision below and that in Local Finance
Corp. v. Commissioner, 407 F. 2d 629 (CA7),
cert. denied, 396 U. S. 956 (1969). We now affirm the
decision of the Court of Appeals.
1 Title 26 U. S. C. § 482 provides:
"In any case of two or more organizations, trades, or businesses
(whether or not incorporated, whether or not organized in the United
States, and whether or not affiliated) owned or controlled directly or
indirectly by the same interests, the Secretary or his delegate may
distribute, apportion, or allocate gross income, deductions, credits,
or allowances between or among such organizations, trades, or businesses,
if he determines that such distribution, apportionment, or allocation
is necessary in order to prevent evasion of taxes or clearly to
reflect the income of any of such organizations, trades, or businesses."
396 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Respondents, First Security Bank of Utah, N. A.,
and First Security Bank of Idaho, N. A. (the Banks),
are national banks that, during the tax years, were
wholly owned subsidiaries of First Security Corp.
(Holding Company). Other, non-bank, subsidiaries of
the Holding Company, relevant to this case, were
First Security Co. (Management Company), Ed. D.
Smith & Sons, an insurance agency (Smith), andfrom
June 1954-First Security Life Insurance Company
of Texas (Security Life). Beginning in 1948,
the Banks offered to arrange for borrowers credit life,
health, and accident insurance ( credit life insurance).
The Tax Court found that they did this "for several
reasons," including ( 1) offering a service increasingly
supplied by competing financial institutions, (2) obtaining
the benefit of the additional collateral that
credit insurance provides by repaying loans upon the
death, injury, or illness of the borrower, and (3) providing
an "additional source of income--part of the
premiums from the insurance-to Holding Company or
its subsidiaries."
Until 1954, any borrower who elected to purchase
this insurance was referred by the Banks to two independent
insurance companies. The premium rate
charged was $1 per $100 of coverage per year, the rate
commonly charged in the industry. The Insurance
Commissioners of the States involved-Utah, Idaho, and
Texas-accepted this rate. The Banks followed a routine
procedure in making this insurance available to customers.
The lending officer would explain the function
and availability of credit insurance. If the customer
desired the coverage, the necessary form was completed,
a certificate of insurance was delivered, and the premium
was collected or added to the customer's loan. The Banks
then forwarded the completed forms and premiums to
Management Company, which maintained records of the
COMMISSIONER v. FIRST SECURITY BANK OF UTAH 397
394 Opinion of the Court
insurance purchased and forwarded the premiums to
the insurance carrier. Management Company also processed
claims filed under the policies. The cost to each
of the Banks for the actual time devoted to explaining
and processing the insurance was less than $2,000
per year, characterized by the courts below as "negligible."
The cost to Management Company of the services
rendered by it was also negligible, slightly in excess
of $2,000 per year.
It was the custom in the insurance business (although
not invariably followed), regardless of the cost of incidental
paperwork, to pay a "sales commission"-ranging
from 40% to 55% of net premiums collected-to a
party who originated or generated the business. But
the Banks had been adv£sed by counsel that they could
not lawfully conduct the business of an insurance agency
or receive income resulting from their customers' purchase
of credit life insurance. Neither the Banks nor
any of their officers were licensed to sell insurance,
and there is no question here of unlawfully acting as
unlicensed agents. The Banks received no commissions
or other income on or with respect to the credit insurance
generated by them. During the period from 1948
to 1954 commissions were paid by the independent companies
writing the insurance directly, to Smith, one of
the wholly owned subsidiaries of Holding Company.
These commissions were reported as taxable income, not
by Smith, but by Management Company which had
rendered the services above described. During this
period (1948-1954), the Commissioner did not attempt
to allocate the commissions to the Banks.2
2 The corporate income tax imposes the same rate of taxation on
taxable income up to $25,000 and the same rate for income greater
than $25,000. 26 U. S. C. § 11. Therefore, if, excluding the sales
commissions in question, we assume, as seems likely, that before
398 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
In 1954, Holding Company organized Security Life,
a new wholly owned subsidiary licensed to engage in the
insurance business. A new procedure was then adopted
with respect to placing credit life insurance. It was
referred by the Banks to, and written by an independent
company, American National Insurance Company of
Galveston, Texas (American National), at the same rate
to the customer. American National then reinsured the
policies with Security Life pursuant to a "treaty of reinsurance."
For assuming the risk under the policies
sold to the Banks' customers, Security Life retained 85%
of the premiums. American National, which furnished
actuarial and accounting services, received the remaining
15%. No sales commissions were paid. Under this
new plan,3 the Banks continued to offer credit life insurance
to their borrowers in the same manner as before!
Security Life was not a paper corporation. It commenced
business in 1954 with an initial capital of $25,000,
1954 the income of both respondents and of Management Company
exceeded $25,000, then the total taxes paid by the Holding
Company subsidiaries would not be affected if the commissions were
allocated wholly to respondents, or to Management Company, or
partially to all three.
3 This plan was proposed to Holding Company by American National,
which was making similar recommendations to other financial
institutions. The Tax Court found that insurance companies anticipated
that lending institutions would soon begin to form their own
affiliated life insurance companies to write the credit insurance, which
was proving to be a profitable business. Such a move by lending
institutions would deprive the independent insurance companies of
substantial credit insurance business. The type of plan recommended
by American National was intended to salvage a. portion of
such business by charging a fee for the actuarial, accounting, and
other services made available to Security Life, which reinsured the
entire risk. T. C. Memo 1967-256.
• Taxpayers are, of course, generally free to structure their business
affairs as they consider to be in their best interests, including lawful
structuring (which may include holding companies) to mm1m1ze
taxes. Perhaps the classic statement of this principle is Judge
COMMISSIONER v. FIRST SECURITY BANK OF UTAH 399
394 Opinion of the Court
which was increased in 1956 to $100,000. Although it
did not become a full-line insurance company (contemplated
as a possibility when organized), its reinsurance
business was substantial. The risks assumed by it had
grown to $41,350,000 by the end of 1959, and it had
paid substantial claims."
Security Life reported the entire amount of reinsurance
premiums, 85% of the premiums charged, in its income
for the years 1955-1959. Because the income of life
insurance companies then was subject to a lower effective
tax rate than that of ordinary corporations, the total tax
liability for Holding Company and its subsidiaries was
less than it would have been had Security Life paid
a part of the premium to the Banks or Management
Company as sales <;ommissions.~ Pursuant to his § 482
Learned Hand's comment in his dissenting opinion in Commissioner
v. Newman, 159 F. 2d 848, 850--851 (CA2 1947):
"Over and over again courts have said that there is nothing sinister
in so arranging one's affairs as to keep taxes as low as possible.
Everybody does so, rich or poor; and all do right, for nobody owes
any public duty to pay more than the law demands: taxes are enforced
exactions, not voluntary contributions. To demand more in
the name of morals is mere cant."
See Knetsch v. United States, 364 U. S. 361, 365 (1960); Chirelstein,
Learned Hand's Contribution to the Law of Tax Avoidance, 77 Yale
L. J. 440 (1968).
The opinion of the Tax Court, supra, includes tables showing the
profitability of Security Life. Its net worth (capital and surplus)
increased from $161,370.52 at the end of 1955 to $1,050,220 at the
end of 1959, despite the paying out of claims and daim8 expenses
over the five-year period totaling $525,787.91. The Tax Court found
that: "Although Security Life's business proved to be rnccessful,
there was no way to judge at the outset whether it would succeed.
In relation to its capital structure, Security Life reinsured a large
amount of risk."
6 Both the Life Insurance Company Tax Act for 1955, 70 Stat.
36, applicable to the years 1955-1957, and the Life Insurance
Company Income Tax Act of 1959, 73 Stat. 112, applicable to later
years, accorded preferential tax treatment to life insurance companies.
400 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
power to allocate gross income among controlled corporations
in order to reflect the actual incomes of the
corporations, the Commissioner determined that 40%
of Security Life's premium income was allocable to the
Banks as compensation for originating and processing
the credit life insurance. 7 It is the Commissioner's view
that the 40% of the premium income so allocated is
the equivalent of commissions that the Banks earned
and must be included in their "true taxable income.""
The parties agree that § 482 is designed to prevent
"artificial shifting, milking, or distorting of the true
net incomes of commonly controlled enterprises." 9
Treasury Regulations provide:
"The purpose of section 482 is to place a controlled
taxpayer on a tax parity with an uncontrolled taxpayer,
by determining according to the standard
of an uncontrolled taxpayer, the true taxable income
from the property and business of a controlled taxpayer.
. . . The standard to be applied in every
case is that of an uncontrolled taxpayer dealing at
arm's length with another uncontrolled taxpayer." 10
The question we must answer is whether there was
a shifting or distorting of the Banks' true net income
7 The Commissioner made an alternative allocation to Management
Company. Because it upheld his allocation to the Banks, the Tax
Court rejecwd this alternative. In reversing the allocation to the
Banks, the Court of Appeals found the record insufficient to pass
on the alternative allocation. It therefore ordered that the case be
remanded to the Tax Court for further consideration. The alternative
allocation is therefore not before us.
8 See 26 CFR § 1.482-1 (a)(6) (1971).
9 B. Bittker & J. Eustice, Federal Income Taxation of Corporations
and Shareholders p. 15-21 (3d ed. 1971).
10 26 CFR § 1.482-1 (b)(l) (1971). The first regulations interpreting
this section of the statute were issued in 1934. They have
remained virtually unchanged. Jenks, Treasury Regulations Under
Section 482, 23 Tax Lawyer 279 (1970).
COMMISSIONER v. FIRST SECURITY BANK OF UTAH 401
394 Opinion of the Court
resulting from the receipt and retention by Security
Life of the premiums above described.11
We note at the outset that the Banks could never
have received a share of these premiums. National
banks are authorized to act as insurance agents when located
in places having a population not exceeding 5,000
inhabitants, 12 U. S. C. A. § 92.12 Although § 92 does
not explicitly prohibit banks in places with a population
of over 5,000 from acting as insurance agents, courts have
held that it does so by implication.13 The Comptroller
11 The court below held that the mere generation of business does
not necessarily result in taxable income. As we decide this case on
a different ground, we need not consid~r the circumstances in which
the origination or referral of business may or may not result in taxable
income to the originating party. We do agree that origination
of business does not necessarily result in such income. In this case
if the Banks had been unaffiliated with any other entities (i. e., had
been separate, independent banks, unaffiliated with any holding company
group), they would nevertheless have performed the "services"
that the Commissioner asserts resulted in taxable income. These
scrvires-namely the negligible paperwork and the referring of the
credit insurance to a company licensed to write it-were performed
(as the Tax Court noted) for the convenience of bank customers and
to assure additional collateral for loans. They also may have been
necessary to meet competition. The fact of affiliation, enabling
referral of the business to another subsidiary in the holding company
group, does not alter the character of what was done. The act
which is relevant, in terms of generating insurance premiums and
commissions, is the referral, of the business. Whether this referral is
to an affiliated or an unaffiliated insurance company should make no
difference as to whether the bank, which never receives the income,
has earned it.
12 Section 92 of the National Bank Act was enacted in 1916.
When the statutes were revised in 1918 and re-enacted, § 92 was
omitted. The revisers of the United States Code have omitted it
from recent editions of the Code. However, the Comptroller of the
Currency considers § 92 to be effective and he still incorporates the
provision in his Regulations, 12 CFR §§ 2.1-2.5 (1971).
13 Saxon v. Georgia Association of Independent Insurance Agents,
Inc., 399 F. 2d 1010 (CA5 1968). See Commissioner v. Morris Trust,
367 F. 2d 794, 795 (CA4 1966).
402 OCTOBER TERM, 1971
Opinion of the Court 405U.S.
of the Currency has acquiesced in this holding,,. and the
Court of Appeals for the Tenth Circuit expressed its
agreement in the opinion below.
The penalties for violation of the banking laws include
possible forfeiture of a bank's franchise and personal
liability of directors. The Tax Court found that
the Banks, upon advice of counsel, "held the belief that
it would be contrary to Federal banking law ... to receive
income resulting from their customers' purchase
of credit insurance" and, pursuant to this belief, "the
two Banks have never received or attempted to receive
commissions or reinsurance premiums resulting from
their customers' purchase of credit insurance." 15
Petitioner does not contest this finding by the Tax
Court or the holding in this respect of the Court of Appeals
below. Accordingly, we assume for purposes of this
decision that the Banks were prohibited from receiving
insurance-related income, although this prohibition
did not apply to non-bank subsidiaries of Holding
Company.16
14 12 CFR §§2.1-2.5 (1971).
15 Findings of fact and opinion in T. C. Memo 1967-256, p. 67-
1456, filed Dec. 27, 1967, in this case.
16 MR. JUSTICE MARSHALL'S dissenting opinion is based on the
"crucial fact ... [that] respondents [the Banks] have already violated
the federal statute and regulations by soliciting insurance
premiums." The statute, 12 U. 8. C. A. § 92, prohibits a national
bank from acting "as the agent.'' of an insurance company "by
soliciting and selling insura.nce and collecting premiums on policies."
MR. JUSTICE MARSHALL concludes that the banks have violated
this statute, and notes that "the penalties ... a.re indeed severe."
This finding of illegality, with respect to conduct of the Banks
extending back to 1948, is without support either in the record or
in any authority cited. Indeed, the record is to the contrary. The
Tax Court found as a fact that there was no "agency agreement"
between the Banks and the insurance companies; it further found
that the Banks "made available" the credit insurance to their customers.
There is no finding, and nothing in the record to support
COMMISSIONER v. FIRST SECURITY BANK OF UTAH 403
394 Opinion of the Court
We know of no decision of this Court wherein a
person has been found to have taxable income that
he did not receive and that he was prohibited from
rece1vmg. In cases dealing with the concept of income,
it has been assumed that the person to whom the income
was attributed could have received it. The underlying
assumption always has been that in order to be taxed
for income, a taxpayer must have complete dominion
over it. "The income that is subject to a man's unfettered
command and that he is free to enjoy at his
own option may be taxed to him as his income, whether
he sees fit to enjoy it or not." Corlu;s v. Bowers, 281 u. s. 376, 378 (1930).
It is, of course, well established that income assigned
before it is received is nonetheless taxable to the assignor.
But the a.ssignment-of-income doctrine assumes
a finding, that the Banks were agents of the insurance companies
or that they engaged in "selling insurance" within the meaning
of the statute. The Banks no doubt "solicited" in the sense that
they encouraged their customers to take out the insurance. But
in the absence of an agency relationship, and in view of the undisputed
fact that the Banks received no commissions or premiums,
it cannot be said that there was a violation of the statute. Moreover,
the Banks were regularly examined by the federal banking
authorities "looking for violations in the national banking laws."
The making of credit insurance available to customers was and
is a common practice in the banking business. There is no suggestion
that the federal banking authorities considered this service
to customers to be a violation of the law as long as the Banks
received no commissions or fees. This administrative interpretation
over many years is entitled to great weight.
The dissenting opinion raises this serious issue for the first time.
It was not raised at any stage in the proceedings below. Nor was
it briefed or argued in this Court. The Commissioner, the Tax
Court, the Court of Appeals, and the Solicitor General all assumed
that the Banks' conduct in this respect was perfectly lawful. But
quite apart from the consistent administrative acceptance and from
the assumptions by the Commissioner and the courts below, we think
there is no basis for a finding of this serious statutory violation.
404 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
that the income would have been received by the taxpayer
had he not arranged for it to be paid to another.
In Harrison v. Schaffner, 312 U. S. 579, 582 (1941), we
said:
" [ 0] ne vested with the right to receive income
[does] not escape the tax by any kind of anticipatory
arrangement, however skillfully devised, by
which he procures payment of it to another, since,
by the exercise of his power to command the income,
he enjoys the benefit of the income on which
the tax is laid." 11
One of the Commissioner's regulations for the implementation
of § 482 expressly recognizes the concept
that income implies dominion or control of the taxpayer.
It provides as follows:
"The interests controlling a group of controlled
taxpayers are assumed to have complete power to
cause each controlled taxpayer so to conduct its
affairs that its transactions and accounting records
truly reflect the taxable income from the property
and business of each of the controlled taxpayers." 18
This regulation is consistent with the control concept
heretofore approved by this Court, although in a different
context. The regulation, as applied to the facts
in this case, contemplates that Holding Company-the
controlling interest-must have "complete power" to
shift income among its subsidiaries. It is only where
this power exists, and has been exercised in such a way
that the "true taxable income" of a subsidiary has been
17 See Helvering v. Horst, 311 U. S. 112 (1940) (assignment of
interest coupons attached to bonds owned by taxpayer); Luca.s v.
Earl, 281 U. S. 111 (1930) (taxpayer assigned to wife one-half interest
in his earnings). See generally Commissioner v. Sunnen, 333
U.S. 591 (1948), and cases discussed therein at 604-610.
18 26 CFR § 1.482-1 (b) (1) (1971).
COMMISSIONER v. FIRST SECURITY BANK OF UTAH 405
394 Opinion of the Court
understated, that the Commissioner 1s authorized to
reallocate under § 482. But Holding Company had no
such power unless it acted in violation of federal banking
laws. The "complete power" referred to in the
regulations hardly includes the power to force a subsidiary
to violate the law.
Apart from the inequity of attributing to the Banks
taxable income that they have not received and may
not lawfully receive, neither the statute nor our prior
decisions require such a result. We are not faced with
a situation such as existed in those cases, urged by the
Commissioner, in which we held the proceeds of criminal
activities to be taxable.19 Those cases concerned
situations in which the taxpayer had actually received
funds. Moreover, the 4llegality involved was the act
that gave rise to the income. Here the originating
and referring of the insurance, a practice widely followed,
is acknowledged to be legal. Only the receipt
of insurance commissions or premiums thereon by national
banks is not. Had the Banks ignored the banking
laws, thereby risking the loss of their charters and
subjecting their officers to personal liability,2° the illegalincome
cases would be relevant. But the Banks from
the inception of their use of credit life insurance in 1948
were careful never to place themselves in that position.
We think that fairness requires the tax to fall on the
party that actually receives the premiums rather than
on the party that cannot.21
19 James v. United States, 366 U.S. 213 (1961); Rutkin v. United
States, 343 U.S. 130 (1952).
zo 12 U. S. C. § 93.
21 Thus, in Commissioner v. Lester, 366 U.S. 299 (1961), in determining
that a taxpayer should not be taxed on alimony payments
to his divorced wife, the Court determined that it was more consistent
with the basic precepts of income tax law that the wife, who
received and had power to spend the payments, should be taxed
rather than the husband who actually earned the money.
406 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
In L. E. Shunk Latex Products, Inc. v. Commissioner,
18 T. C. 940 (1952), the Tax Court considered a closely
analogous situation. The same interest controlled a
manufacturer and a distributor of rubber prophylactics.
The OPA Price Regulations of World War II became
effective on December 1, 1941. Prior thereto the distributor
had raised its prices to retailers, but the manufacturer
had not increased the prices charged to its
affiliated distributor. The Commissioner, acting under
§ 482, attempted to allocate some of the distributor's income
to the manufacturer OJ) the ground that a portion
of the distributor's profits was in fact earned by the
manufacturer, even though the manufacturer was prohibited
by the OPA regulations from increasing its
prices. In holding that the Commissioner had acted
improperly, the Tax Court said that he had "no authority
to attribute to petitioners income which they
could not have received." 18 T. C., at 961.22
It is argued, finally, that the "services" rendered by
the Banks in making credit insurance available to customers
"would have been compensated had the corpora-
22 As noted at the outset of this opinion, certiorari was granted
to resolve the conflict bet.ween the decision below and that in Local
Finance Corp. v. Commissioner, 407 F. 2d 629 (CA7 1969). The Tax
Court in this case felt bound to follow Local Finance Corp., which
was decided subsequently to L. E. Shunk Latex Products, Inc. v.
Commissioner, 18 T. C. 940 (1952). For the reasons stated in the
opinion above, we think Local Finance Corp. was erroneously decided
and that the earlier views of the Tax Court were correct.
See Teschner v. Commissioner, 38 T. C. 1003, 1009 (1962):
"In the case before us, the taxpayer, while he had no power to
dispose of income, had a power to appoint or designate its recipient.
Does the existence or exercise of such a power alone give rise to
taxable income in his hands? We think clearly not. In Nicholas A.
Stavroudis, 27 T. C. 583, 590 ( 1956), we found it to be settled
doctrine that a power to direct the distribution of trust income to
others is not alone sufficient to justify the taxation of that income
to the possessor of such a power."
COMMISSIONER v. FIRST SECURITY BANK OF UTAH 407
MARSHALL, J ., dissenting
tions been dealing with each other at arm's length." 23
The short answer is that the proscription against acting
as insurance agent and receiving compensation therefor
applies to all national banks located in places with
population in excess of 5,000 inhabitants. It applies
equally to such banks whether or not they are controlled
by a holding company. If these Banks had been independent
of any such control-as most banks are-no
commissions or premiums could have been received lawfully
and there would have been no taxable income.2'
As stated in the Treasury Regulations, the "purpose of
section 482 is to place a controlled taxpayer on a tax
parity with an uncontrolled taxpayer .... " 25 We
think our holding comports with such parity treatment.
We conclude that the premium income received by
Security Life could not be attributable to the Banks.
Holding Company did not utilize its control over the
Banks and Security Life to distort their true net incomes.
The Commissioner's exercise of his § 482 authority
was therefore unwarranted in this case. The
judgment below is
Affirmed.
MR. JUSTICE MARSHALL, dissenting.
The facts of this case illustrate the natural affinity
that lending institutions and insurance companies have
for each other. Congress depends on the ability of the
Commissioner of Internal Revenue to utilize § 482 of
the Internal Revenue Code, 26 U. S. C. § 482, to insure
that this affinity does not provide a basis for tax avoidance.
H. R. Rep. No. 1098, 84th Cong., 1st Sess., 7;
S. Rep. No. 1571, 84th Cong., 2d Sess., 8. In my opin-
23 See dissrnting opinion of MR .• h,STICE BLACKMUN , post, at 422.
24 If an unaffiliated bank were able to provide the insurance at
a cheaper rate because no commissions were paid, this would benefit
the customers but would result in no taxable income.
25 26 CFR § 1.482-1 (b) (1) (1971).
408 OCTOBER TERM, 1971
MARSHALL, J., dissenting 405 U.S.
ion, today's decision renders § 482 a less efficacious
weapon against tax avoidance schemes than Congress
intended and provides the respondents with an unwarranted
tax advantage. I dissent.
Section 482 provides:
"In any case of two or more organizations, trades,
or businesses ( whether or not incorporated, whether
or not organized in the United States, and whether
or not affiliated) owned or controlled directly or indirectly
by the same interests, the Secretary or his
delegate may distribute, apportion, or allocate gross
income, deductions, credits, or allowances between
or among such organizations, trades, or businesses,
if he determines that such distribution, apportionment,
or allocation is ·necessary in order to prevent
evasion of taxes or clearly to reflect the income of
any of such organizations, trades, or businesses."
First enacted as § 45 of the Revenue Act of 1928, 45
Stat. 806, the statute was intended to prevent the
avoidance of tax liability through fictions and "to deny
the power to shift income ... arbitrarily among controlled
corporations, and to place such corporations
rather on a parity with uncontrolled concerns." Central
Cuba Sugar Co. v. Commissioner, 198 F. 2d 214, 216
(CA2 1952). See H. R. Rep. No. 2, 70th Cong., 1st
Sess., 16-17; S. Rep. No. 960, 70th Cong., 1st Sess.,
24-25. It is intended to serve the same purpose in
the present Code.
It is well-established law that in analyzing a transaction
under § 482, the test is whether the arrangement
as structured for income tax purposes by interlocking
corporate interests would have been similarly structured
by taxpayers dealing at arm's length. See, e. g., Borge
v. Commissioner, 405 F. 2d 673 (CA2 1968), cert. denied
sub nom. Danica Enterprises v. Commissioner, 395 U.S.
COMMISSIONER v. FIRST SECURITY BANK OF UTAH 409
394 MARSHALL, J., dissenting
933 (1969); Eli Lilly & Co. v. United States, 178 Ct.
Cl. 666, 372 F. 2d 990 (1967).
Applying that test to this case, the following facts
are relevant. Before 1954, an independent insurance
company paid respondents commissions ranging from
40% to 45 % for their services in offering insurance
to borrowers designed to discharge their debts in the
event that they died or became disabled during the
term of their loans. After 1954, respondents offered
borrowers policies issued by a different insurance company.
At this time the holding company that controlled
respondents created a new subsidiary to reinsure
the borrowers who purchased policies. By paying off
the independent insurance company with 15% of the
proceeds of the policies, the subsidiary assumed the
insurance risks and garnered the remaining 85% of the
proceeds. No commission was paid to respondents by
either the independent company or the insurance
subsidiary.
The tax advantage of the post-1954 structure derived
from the fact that the Life Insurance Company Tax
Act for 1955, 70 Stat. 36, as amended by the Life Insurance
Company Income Tax Act of 1959, 73 Stat. 112, as
amended, 26 U. S. C. § 801 et seq., gives preferential
tax treatment to life insurance companies. By funneling
all proceeds from the sales of the insurance policies
to a subsidiary that qualified for tax treatment as a
life insurance company, the holding company avoided
the heavier tax that would have been imposed on respondents
had they been paid commissions.
The Commissioner's analysis of this case is not overly
complex: He saw that respondents performed essentially
the same services and generated the same income after
1954 that they did before, and he concluded that § 482
required that they should be taxed on the premiums
that they were actually earning.
410 OCTOBER TERM, 1971
MARSHALL, J ., dissenting 405 U.S.
Based on respondents' earlier experience dealing at
arm's length with an independent insurance company
and on the well-known fact that insurers pay solicitors
a portion of the premium as a commission for generating
income, see Local Finance Corp. v. Commissioner, 48
T. C. 773, 786 (1967), aff'd, 407 F. 2d 629, 631-632
(CA7 1969), the Commissioner determined that 40%
of the premium income was properly allocated to
respondents.
The respondents make, in essence, two arguments in
their attempt to rebut the Commissioner's position.
First, they urge that they never received any funds
as a result of offering the policies to borrowers, and
that it is therefore unfair to tax them on any portion
of said proceeds. If § 482 is to have any meaning, that
argument must be rejected. It makes absolutely no
sense to examine this case with a technical eye as to
whether respondents actually ·received or had a "right"
to receive any commissions. This is not a case involving
independent companies or private individuals where we
must scrupulously avoid taxing someone on money he
will never receive regardless of his will in the matter.
See, e. g., Blair v. Commissioner, 300 U. S. 5 (1937); cf.
Teschner v. Commisswner, 38 T. C. 1003 (1962). This
is a case involving related corporations, and § 482 recognizes
that such corporations may be treated differently
from natural persons or unrelated corporations for certain
tax purposes.
We need not look far to find that this entire complicated
economic structure-established, designed, administered,
and amendable by the holding companyhad
the right to the proceeds. Pursuant to § 482, the
Commissioner properly attempted to insure that the
proceeds would be equitably allocated.
The Court apparently concedes that if respondents'
only argument against taxation were that they have
COMMISSIONER v. FIRST SECURITY BANK OF UTAH 411
394 MARSHALL, J., dissenting
received no money, that argument would fail. This
concession is, in fact, mandated by various decisions of
this Court, including Harrison v. Schaffner, 312 U. S.
579 (1941); Helvering v. Horst, 311 U. S. 112 (1940),
and Lucas v. Earl, 281 U.S. 111 (1930).
Having implicitly rejected the argument that mere
nonreceipt of money is sufficient to avoid taxation, the
Court proceeds to accept respondents' second argument
that in this case the taxpayer is legally barred from ever
receiving money, and in this circumstance he cannot be
taxed on it. Respondents find a legal bar to receipt of
the proceeds at issue here in 12 U. S. C. A. § 92, which
provides:
"In addition to the powers now vested by law
in national banking associations organized under
the laws of the United States any such association
located and doing business in any place the population
of which does not exceed five thousand inhabitants,
as shown by the last preceding decennial
census, may, under such rules and regulations as
may be prescribed by the Comptroller of the Currency,
act as the agent for any fire, life, or other
insurance company authorized by the authorities
of the State in which such bank is located to do
business in said State, by soliciting and selling insurance
and collecting premiums on policies issued
by such company; and may receive for services
so rendered such fees or commissions as may be
agreed upon between the said association and the
insurance company for which it may act as agent;
and may also act as the broker or agent for others
in making or procuring loans on real estate located
within one hundred miles of the place in which
said bank may be located, receiving for such services
a reasonable fee or commission: Provided, however,
That no such bank shall in any case guarantee
412 OCTOBER TERM, 1971
MARSHALL, J., dissenting 405 U.S.
either the principal or interest of any such loans
or assume or guarantee the payment of any premium
on insurance policies issued through its agency
by its principal: And provided further, That the
bank shall not guarantee the truth of any statement
made by an assured in filing his application
for insurance."
This statute by inference and the regulations of the
Comptroller of the Currency., 12 CFR §§ 2.1-2.5, by explicit
language bar national banks in communities with
more than 5,000 inhabitants from selling, soliciting, or
receiving the proceeds from selling insurance. Respondents
are within the legal prohibition and the penalties
provided for a violation are indeed severe. Assuming
that the respondents will not attempt to violate the
law and not wishing to appear to encourage a violation,
the Court concludes that respondents will receive
none of the proceeds and that they cannot be taxed on
money they will never receive.
But the crucial fact in this case is that under their own
theory respondents have already violated the federal statute
and regulations by soliciting insurance premiums.
Title 12 U.S. C. A. § 92 was added to the federal banking
laws in 1916 at the suggestion of John Skelton Williams,
who was then Comptroller of the Currency. He wrote to
Congress to recommend that national banks in small
communities be permitted to associate with insurance
companies, but that banks in larger communities be prohibited
from doing the same:
"It seems desirable from the standpoint of public
policy and banking efficiency that this authority
should be limited to banks in small communities.
This additional income will strengthen them and
increase their ability to make a fair return to their
shareholders, while the new business is not likely to
COMMIS.SIONER v. FIRST SECURITY BANK OF UTAH 413
394 MARSHALL, J., dissenting
assume such proportions as to distract the officers
of the bank from the principal business of banking.
Furthermore in many small places the amount of
insurance policies written . . . is not sufficient to
take up the entire time of an insurance broker, and
the bank is not therefore likely to trespass upon outside
business naturally belonging to others.
"I think it would be unwise and therefore undesirable
to confer this privilege generally upon banks
in large cities where the legitimate business of banking
affords ample scope for the energies of trained
and expert bankers. I think it would be unfortunate
if any movement should be made in the direction of
placing the banks of the country in the category of
departmen_t stores .... " Letter of June 8, 1916, to
Senate, 53 Cong. Rec. llOOl.
There is nothing in the history of the provision to
indicate that Congress was more concerned with banks'
actually receiving money than with their performing
the activities that generated the money. In fact, the
history that is available indicates that it is the activities
themselves that Congress wished to stop. Banks in large
communities were simply not permitted to do anything
that insurance agents might do, i. e., they were not permitted
to solicit insurance.
Under respondents' theory of the case, the legal violation
is thus a f ait accompli and the respondents are taxable
as if there had been no illegality.1 See, e. g., United
1 Neither the statute nor the regulations use the words "originating
and referring" insurance. These are the words chosen by the
Court to describe the respondents' activities, ante, at 405. The
statute and regulations speak of "soliciting and selling." Because
the respondents themselves argue that they would violate § 92 and
the regulations were they to receive the income generated by their
activities, I assume that they, in effect, are admitting that these
activities amounted to "soliciting and selling" insurance. Thus,
414 OCTOBER TERM, 1971
MARSHALL, J., dissenting 405 U.S.
States v. Sullivan, 274 U. S. 259 (1927); Rutkin v.
United States, 343 U. S. 130 (1952); James v. United
States, 366 U. S. 213 (1961). See also Tank Truck
Rentals v. Commissioner, 356 U. S. 30 (1958).
the Commissioner could properly determine that the statute was
violated by the acts of solicitation, and, as the Court recognizes,
since "the illegality involved was the act which gave rise to the income,"
this Court's prior decisions permit the Commissioner to tax
the income of the lawbreakers.
If, however, the Court is attempting to distinguish sub silentio
between "originating and referring" and "soliciting" and is concluding
that only the latter is mega!, then there is nothing in the statute
or regula.tions that would make illegal the receipt of income generated
by the former. Hence, the Commissioner could reject the
respondents' second argument that it would violate federal banking
laws to include the proceeds in their income.
Whichever approach the Gourt selects, the statute requires
consistency-i. e., the statute requires that the activities that produce
income be illegal before the receipt of the income is deemed
to violate the law.
I agree with the Court that deference must be paid to the expertise
of the Comptroller, but in proposing that § 92 be added to the
already existing banking laws, Comptroller Williams himself noted
that "[i]t is certainly clear that the Comptroller of the Currency
has no right to authorize or permit a national bank to exercise powers
not conferred upon it by law." Letter of June 8, 1916, supra.
Senator Owen, who shepherded the 1916 legislation through the
Senate, noted at one point that § 92 is not a very important part
of the statute. 53 Cong. Rec. 11001. Perhaps, it is therefore unimportant
whether or not the respondents have technically violated it.
Whether or not the Comptroller has properly permitted such activities
to take place may also be of no great moment.
What is critical to a correct disposition of this case, in my view, is
that if respondents' activities are not illegal, there is no reason that
receipt of the income generated from them should be illegal. It
should be pointed out that the theory that receipt of said income
would be illegal was first proffered by respondents' counsel. This
theory is certainly self-serving in the sense that it provides what
the Court regards as the dispositive factor in this case without hindering
the activities of the holding company in any way.
The Court suggests that the Commissioner has never relied on the
COMMISSIONER v. FIRST SECURITY BANK OF UTAH 415
394 MARSHALL, J., dissenting
The Court seeks, however, to distinguish all of the
prior cases holding that a taxpayer may be taxed on
income illegally earned on the ground that the issue
was never raised as to whether the taxpayers in those
cases had actually received the income. The distinction
is valid but it does not warrant a different result
in this case.
The reasoning of the majority runs along these lines:
if A violates the law-by attempted embezzlement or
by illegally soliciting insurance sales, for example-but
he receives no money and has no "legal right" to receive
any money, then he cannot be taxed as if the money had
been received; but, if A actually embezzles money or
receives insurance premiums in violation of the law, A
can be taxed even though he may have transferred the
money without any personal gain to a third party from
whom he has no right of recovery.
I would agree with this analysis in most cases. Where
I differ from the Court is in which category to place this
transaction. To pretend that respondents have not received
any money and have no right to any money is to
ignore the thrust of § 482. That section requires that we
treat this case as if the commissions had been paid to
theory of the case expressed in this opinion. On the contrary, the
Commissioner argued in his brief (p. 13) as follows:
"The Commissioner's allocation does not force respondents to violate
the federal banking law. It was they, not the Commissioner,
who chose to solicit and sell credit life insurance at a rate set at a
sufficiently high level to permit the payment of commissions. If
their activities did not violate the banking law, the CommiRsionPr'R
allocation will not, of itself, constitute a violation on their part.
And, surely, the payment of taxes would not be an illegal act."
Both sides dealt with this point in oral argument. Tr. of Oral Arg.
14-18, 30, 40.
This is the nub of the case. What is there in the legislative history
or the purpose of § 92 that requires that we treat the activities
as legal, but the receipt of the income they generate as illegal?
416 OCTOBER TERM, 1971
MARSHALL, J., dissenting 405 u. s.
respondents and had been transferred to the insurance
subsidiary by them. Of course, that did not occur. But,
we know that the whole notion of the section is to look
behind the form in which a transaction is structured to
its substance. The substance is either that the respondents
violated federal law, earned illegal income, attempted
to avoid taxation on the income by channeling it elsewhere,
and were caught by the Commissioner; or, that
they did not violate federal law by soliciting sales of
insurance and that there is no legal bar to their receiving
the proceeds from their sales. In either case, the result
is the same, and respondents cannot prevail.
If respondents had actually received the proceeds and
transferred them to the insurance subsidiary, they would
still be free to make essentially the same argument that
they make in this case, i. e., they could argue that federal
law prohibited them from receiving the money; that
they violated federal law, but had no right to keep the
money; and that they should not be taxed on receipt of
funds which they could not legally keep.
To be consistent with the assignment-of-income cases,
Helvering v. Horst, supra, and Lucas v. Earl, supra, and
the line of cases that includes Rutkin v. United States,
supra, and James v. United States, supra, the Court
would have to reject this argument. Yet, I maintain
that this is just what the taxpayer is arguing here.
The Commissioner has determined that in reality the
respondents have earned income, and he has taxed it
under § 482. To reject his position is to give undue
weight to the absence of technical temporary possession
of money and some abstract concept of a "right" to receive
it. I had thought that this kind of technical reasoning
was rejected in James v. United States, supra,
when the Court overruled Commissioner v. Wilcox, 327 u. s. 404 (1946).
COMMISSIONER v. FIRST SECURITY BANK OF UTAH 417
394 MARSHALL, J., dissenting
Finally, even if there is some mysterious reason why
the banking laws should be read in the manner suggested
by respondents, there is still another reason why they
should not prevail. The fact would remain that they
consciously chose to perform services in order that their
parent holding company would reap financial rewards. 2
Certainly, there is nothing in the federal banking laws
that required the performance of these services. In
the context of a complex corporate structure ministered
by one large holding company, the purposes of § 482 are
best served by permitting the Commissioner to allocate
income to the company that earns it, rather than to the
company that receives it. Again, we must remember
that this is not a case of unrelated private individuals or
independent corporations where there might be some
danger that in allocating income to the person who generated
but did not receive it, the Commissioner would
render that person financially unable to pay his taxes.
This case involves one large interrelated system. It
would be total fiction to assume that the holding company
would leave its subsidiaries in a financial bind. Hence,
there is no good reason to bar the Commissioner from
taxing respondents on the money that they earn.3
In my view, the Commissioner has done exactly what
§ 482 requires him to do in this case. Accordingly, I
2 While the premiums from the insurance policies were not paid
directly to the parent, there can be no doubt that the parent benefited
from the financial success of its subsidiaries.
3 We know that nontax statutes do not normally determine the tax
consequences of a particular transaction. There is no inherent inconsistency
in reading the banking legislation as mahlng the receipt
of insurance premiums illegal, and, at the same time, reading the
Internal Revenue Code as allowing the Commissioner to allocate the
income from the sale of insurance policies to the party actually
earning it, so long as the income is received by the corporation controlling
that party.
418 OCTOBER TERM, 1971
BLACKMUN, J., dissenting 405 u. s.
would reverse the decision of the Court of Appeals and
would remand the case with a direction that judgment
be entered for the petitioner.
MR. JUSTICE BLACKMUN, with whom MR. JusTICE
WRITE joins, dissenting.
As I read the Court's opinion, I gain the impression
that it chooses to link legality with taxability or, to put
it better oppositely, that it ties illegality to receive with
inability to tax. I find in the Internal Revenue Code
no authority for the concoction of a restrictive connection
of that kind. Because I think that the Commissioner's
allocation of income here, under the auspices of § 482 of
the 1954 Code, and in the light of the established facts,
was proper, I dissent.
L Section 482 1 surely contemplates taxation of income
without formal receipt of that income. That, indeed, is
the scope and purport of the statute. It is directed at
income distortion by a controlling interest among two or
more of the controlled entities. I, therefore, am not convinced
that the fact the income in question here did not
flow through the Banks at any time-because it was
deemed proscribed by the 1916 Act (if the pertinent
portion thereof, 39 Stat. 753, is still in effect, a proposition
which may not be free from doubt) ,2 and because the
1 Section 482 is not new. It appeared as § 45 of the Revenue
Act of 1928, 45 Stat. 806, and has predecessors in § 240 (f) of the
Revenue Act of 1926, 44 Stat. 46, and in § 240 (d) of the Revenue
Act of 1924, 43 Stat. 288.
2 The revisers of the United States Code in 1952 omitted the
section because of the possibility of its having been repealed by its
omission from the amendment and re-enactment in 1918 of § 5202
of the Revised Statutes by § 20 of the War Finance Corporation
Act, 40 Stat. 512. Compare administrative ruling No. 7110 of the
Comptroller of the Currency with the Comptroller's current regulations,
12 CFR §§ 2.1-2.5. See Saxon v. Georgia Association of Independent
Insurance Agents, Inc., 399 F. 2d 1010 (CA5 1968); ComCOMMISSIONER
v. FIRST SECURITY BANK OF UTAH 419
394 BLACKMUN, J., dissenting
controlling interest routed it elsewhere-serves, in and
of itself, to deny the efficacy of the statute.
2. Section 482 has a double purpose and a double target.
It authorizes the Secretary or his delegate, that is,
the Commissioner, to allocate whenever he determines it
necessary so to do in order (a) "to prevent evasion of
taxes" or (b) "clearly to reflect the income of any" of
the controlled entities. The use of the statute, therefore,
is not restricted to the intentional tax evasion. No evasion
of tax, in the criminal sense, by these Banks is
specifically suggested or at issue here. And I do not subscribe
to my Brother MARSHALL'S intimation that what
the Banks were d~ing was otherwise illegal. The second
alternative of the statute, however, is directed at something
other than tax evasion or illegality. It is concerned
with the proper reflection of income ( or deductions,
credits, or allowances) so as to place the controlled
taxpayer on a tax parity with the uncontrolled taxpayer.
It is designed to produce for tax purposes, and to recognize,
economic realities and to have the tax consequences
follow those realities and not some structured nonreality.
This is the aspect of the statute with which
the Commissioner and these respondents are here concerned.
Thus, legality and illegality seem to me to be
beside the point.
3. From this it follows that the Court's repetitive
emphasis on the missing § 92 and the inability of these
Banks legally to receive the insurance commissions give
undue emphasis to the first alternative of § 482, and
seem almost wholly to ignore the second.
4. The purpose of the controlling interest in structuring
the several entities it controls is apparent and canmissioner
v. Morris Trust, 367 F. 2d 794, 795 (CA4 1966); Hackley,
Our Baffling Banking System, pt. 2, 52 Va. L. Rev. 771, 777-
779 (1966). United States Code Annotated carries the provision
as § 92 of its Title 12.
420 OCTOBER TERM, 1971
BLACKMUN, J ., dissenting 405 U.S.
not be concealed. The Banks were wholly owned subsidiaries
of Holding Company. The Tax Court foundand
the respondents concede 8-that one of the purposes
of the Banks' arranging for borrowers' credit life insurance
.. was "to provide an additional source of income--
part of the premiums from the insurance-to Holding
Company or its subsidiaries." T. C. Memo 1967-256,
p. 67-1453. For me, that means to provide an additional
source of income for the group irrespective of
the particular pocket into which that income might
initially be routed.
5. What, then, happened? The chronology 1s revealing:
(a) Initially, ·that is, until 1954, the Banks solicited
the insurance, charged the premium, and forwarded it to
Management Company. The latter in turn sent it on to
the then-favored independent insurance carrier. That
carrier paid the recognized sales commission to Smith,
Management Company's wholly owned insurance agency.5
(b) In 1954 the American National-Security Life arrangement
appeared on the scene. This was prompted
by the blossoming of the credit insurance business as a
profitable undertaking. Obviously, it was a matter of
concern to established and independent insurance companies
when they came to realize that lending institutions
were in a position to form their own insurance affiliates
3 Brief for Respondents 2.
4 I use this and other terms as they have been defined in the
Court's opinion.
5 Despite this payment to Smith, it was not Smith, but Management
Company, that reported the commissions as taxable income.
This reveals the fluidity of control of the structure. Of course, the
fact that the Commissioner did not allocate the premiums to the
Banks during this period is of small, if any, significance, for, as
the Court points out, ante, at 397- 398, n. 2, the then tax rate for
each of the corporate entities was likely the same. The Government
thus would lose nothing by not allocating.
COMMISSIONER v. FIRST SECURITY BANK OF UTAH 421
394 BLACKMUN, J., dissenting
to tap and drain away profits that the independents
theretofore had received without hindrance. Security
Life was just such an emerging insurance affiliate of
Holding Company and of Management Company. But
American National, by its proposal to Management Company,
as well as to other financial institutions, salvaged
15% of the premium dollar in return for actuarial and
accounting services. Security Life never did develop into
a full-line insurance company; it remained essentially a
re-insurer and yet it accomplished the purpose for which
it was given life. Now no sales commissions needed to
be paid. In fact, none were paid; they just disappeared,
and that erstwhile cost remained as profit in Security
Life. But the Banks, as before, solicited their borrowing
customers to purchase credit life insurance.
(c) The Life Insurance Company Tax Act for 1955
was enacted, 70 Stat. 36, followed by the Life Insurance
Company Income Tax Act of 1959, 73 Stat. 112. These
statutes served to accord preferential tax treatment-as
compared to ordinary corporations-to life insurance
companies. See United States v. Atlas Life Ins. Co.,
381 U.S. 233 (1965). This happily coincided, of course,
with Security Life's development.
6. Only the Banks were the responsible force behind
the premium income. No one else was. Certainly American
National was not. Certainly Security Life was not.
Smith was out of the picture. And if it can be said that
Management Company or Holding Company contributed
a part, they did so only secondarily. It was the participating
bank that explained to the borrower the function
and availability of the insurance; that gave the
customer the application form; that examined the application;
that prepared the certificate of insurance;
that collected the premium or added it to the loan; and
that sent the form and the premium to Management
Company. It was the participating bank that thus
422 OCTOBER TERM, 1971
BLACKMUN, J., dissenting 405 u. s.
offered and sold on behalf of a life insurance company
under common control with the bank. It was the participating
bank, in short, that did what was necessary,
and all that was necessary, to sell the insurance. Clearly,
services were rendered by that bank on behalf of its commonly
controlled affiliate. Just as clearly, those services
would have been compensated had the corporations been
dealing with each other at arm's length.
7. It is no answer to say that generation of income
does not necessarily lead to taxation of the generator;
here the earnings themselves stayed within the corporate
structure dominated by Holding Company, and did not
pass elsewhere with consequent tax impact elsewhere.
I do not so easily differentiate, as does the Court, ante,
at 401 n. 11, between referral outside the affiliated structure
and referral conveniently within that structure to a
re-insurance company that could be taxed on the premium
income (unreduced by commissions) at advantageous
tax rates.
8. That the selling effort of the Banks seems comparatively
minimal and that the processing cost seems comparatively
negligible are, I believe, beside the point and
quite irrelevant. No one else devoted effort or incurred
cost of any significance whatsoever. Taxability has
never depended on approximating expenses to receipts;
in fact, the less the cost, the greater the net income and
the greater the tax burden.
9. Neither is it an answer to say that before the
organization of Security Life the Banks did not receive
income from credit insurance premiums and that, therefore,
the emergence of Security Life did not change the
situation so far as the Banks were concerned. For
me, it very much changed the situation, for the controlled
structure took over the insurance business and
the premiums thenceforth were nestled within that
structure.
COMMISSIONER v. FIRST SECURITY BANK OF UTAH 423
394 BLACKMUN, J., dissenting
10. Taxability, despite nonreceipt, is common in our
tax law. It is present in a variety of contexts. For
example, one has been held taxable, under the applicable
statute's general definition of gross income, for
income or earnings assigned to another and never received;
6 for the income from bond coupons, maturing
in the future, assigned to another and never received; 7
for dividends paid to the shareholders of a transferor
corporation pursuant to a lease with no def easance
clause; 8 for another's income from a short-term trust 9
( until § 673, with its 10-=year measure, came into the tax
structure with the 1954 Code); for the employer's payment
of income taxes on his employees' compensation; 10
and for an irrevocable trust's income used to pay insurance
premiums on the settlor's life,11 or, in th6 absence
of particular state law provisions, distributed to a divorced
wife in lieu of alimony 12 (until § 215 came into
the Code with the Revenue Act of 1942, 56 Stat. 817).
11. In the area of federal estate taxation an obvious
parallel is found in the many instances of includability
in the decedent's gross estate of property not owned or
possessed by the decedent at his death. The Code itself
provides for the inclusion of transfers theretofore effec-
6 Harrison v. Schaffner, 312 U. S. 579 (1941); Helvering v.
Eubank, 311 U. S. 122 (1940); Burnet v. Leininger, 285 U. S. 136
(1932); Lucas v. Earl, 281 U. S. Ill (1930). Cf. Hoeper v. Ta:c
Comm'n, 284 U.S. 206 (1931); Blair v. Commissioner, 300 U.S. 5
(1937). See Commissioner v. Sunnen, 333 U.S. 591, 604-610 (1948);
United States v. Mitchell, 403 U. S. 190 (1971).
7 Helvering v. Horst, 311 U. S. 112 (1940).
8 United States v. Joliet & Chicago R. Co., 315 U. S. 44 ( 1942).
9 Helvering v. Clifford, 309 U.S. 331 (1940).
10 Old Colony Trust Co. v. Commissioner, 279 U. S. 716 (1929).
11 Burnet v. Wells, 289 U. S. 670 (1933).
12 Douglas v. Willcuts, 296 U. S. 1 (1935); Helvering v. Fitch,
309 U. S. 149 (1940); see Commissioner v. Lester, 366 U. S. 299
(1961).
424 OCTOBER TERM, 1971
BLACKMUN, J., dissenting 405 u. s.
tively made, but in contemplation of death, 26 U. S. C.
§ 2035; of a variety of inter vivos irrevocable transfers
in trust, 26 U. S. C. §§ 2036-2038; and of joint interests,
26 U. S. C. § 2040, in all of which situations the ownership
interest at death was nonexistent or less than full.
12. This demonstrates for me that there have been
and are many examples of taxation of income without
that "complete dominion" over it that the Court now
finds so necessary. The quotation, cited by the Court,
from Mr. Justice Holmes' opinion in Corliss v. Bowers,
281 U. S. 376, 378 (1930), consists of language used to
support the taxation of income; it is not language, as
the Court would make it out to be, that supported
the nontaxation of income. The Justice's posture-and
the Court's-in that c~se surely looks as much, and
perhaps more, to includability here than it does to
excludability.13
13. The Court shrinks from extending the possibility
of taxation-without-receipt to the situation where the
taxpayer is "prohibited from receiving" the income by
another statute. It states that no decision of the Court
has as yet gone that far. It is equally true that no
decision of the Court has refrained from going that far.
13 ". • . But the net income for 1924 was paid over to the
petitioner's wife and the petitioner's argument is that however it
might have been in different circumstances the income never was his
and he cannot be taxed for it. The legal estate was in the trustee
and the equitable interest in the wife.
"But taxation is not so much concerned with the refinements of
title as it is with actual command over the property taxed-the
actual benefit for which the tax is paid .... " 281 U.S., at 377-378.
In another case Mr. Justice Holmes said:
"There is no doubt that the statute could tax salaries to those
who earned them and provide that the tax could not be escaped
by anticipatory arrangements and contracts however skillfully devised
to prevent the salary when paid from vesting even for a
second in the man who earned it. " Lucas v. Earl, 281 U. S.
111, 114-115 (1930).
COMMISSIONER v. FIRST SECURITY BANK OF UTAH 425
394 BLACKMUN, J ., dissenting
The Seventh Circuit has not been concerned with the
existence of a prohibitory regulating statute, Local Finance
Corp. v. Commissioner, 407 F. 2d 629 (1969), cert.
denied, 396 U. S. 956, and this Court should not be. The
Congress, in enacting the Life Insurance Company Tax
Act for 1955, was of the opinion that § 482 was available
to the Commissioner with respect to insurance companies
that are captives of "finance companies." H. R.
Rep. No. 1098, 84th Cong., 1st Sess., 7; S. Rep. No.
1571, 84th Cong., 2d Sess., 8.14
14. The Court's reluctance is reminiscent of the "claim
of right" doctrine, which found expression in the unfortunate
and short-lived ( 15 years) decision in Commissioner
v. Wilcox, 327 U. S. 404 (1946), to the effect
that embezzled income was not taxable to the embezzler.
Wilcox, of course~ stood in sharp contrast to Rutkin v.
United States, 343 U. S. 130 (1952), where money obtained
by extortion was held to be taxable income to
the extortioner; it was overruled, at last, in James v.
United States, 366 U.S. 213 (1961). In Wilcox, as here,
the Court wrestled with the concept and imaginary barrier
of illegality, was impressed by it, and, as in this case,
concluded that illegality and taxability did not mix and
could not be linked. That doctrine encountered resistance
in Rutkin and in James, and was rightly rendered
an aberration by those later decisions.
14 "There is a potential abuse situation in the case of the so-called
captive insurance companies. It may be possible for a finance
rompany, for example, to establish a subsidiary life insurance company
that. will issue life insurance policies in connection with the
business of the parent. If the subsidiary charges excessive premium
on this business, a portion of the income of the parent company
can be diverted to the life insurance company. It is believed that
section 482 of the Internal Revenue Code of 1954 (relating to allocation
of income and deductions among related taxpayers) provides
the Secretary of the Treasury ample regulative authority to deal
with this problem."
426 OCTOBER TERM, 1971
BLACKMUN, J., dissenting 405 U.S.
15. I doubt if there is much comfort for the Court
in L. E. Shunk Latex Products, Inc., 18 T. C. 940 (1952),
for there the significant fact was that the taxpayer could
not have raised its price even to a noncontrolled
distributor.
In conclusion, I note that the Court of Appeals remanded
Management Company's case to the Tax Court
for consideration of the § 482 allocation, alternatively
proposed, to that corporation. With this I must be content.
At least Management Company is not a national
bank, and the barrier that the Court has found in the
missing § 92 supposedly does not provide a protective
coating for Management Company or, for that matter,
for Holding Company.
And so it is. The result of today's decision may not
be too important, for it affects only a few taxpayers. It
seems to me, however, that it effectively dulls one edge
of what has been a sharp two-edged tool fashioned and
bestowed by the Congress upon the Internal Revenue
Service for the effective enforcement of our federal tax
laws.
SCHNEBLE v. FLORIDA
Opinion of the Court
SCHNEBLE v. FLORIDA
CERTIORARI TO THE SUPREME COURT OF FLORIDA
No. 68--5009. Argued January 17-18, 1972-
Decided March 21, 1972
427
Petitioner was found guilty of murder following a jury trial in
which police officers testified as to the detailed confession that he
had given to them and in which one officer related a statement
made to him by petitioner's codefendant, who did not testify,
which tended to undermine petitioner's initial (but later abandoned)
version and to corroborate certain details of petitioner's
confession. The Supreme Court of Florida affirmed. Petitioner
~him~ that the admission into evidence of his codefendant's
statement deprived him of his- right to confrontation in violation
of Bruton v. United States, 391 U. S. 123. Held: Any violation
of Bruton that might have occurred was harmless beyond a
reasonable doubt in view of the overwhelming evidence of petitioner's
guilt as manifested by his confession, which completely
comported with the objective evidence, and the comparatively
insignificant effect of the codefendant's admission. Pp. 429-432.
215 So. 2d 611, affirmed.
REHNQUIST, J., delivered the op1mon of the Court, in which
BURGER, C. J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ.,
joined. MARSHALL, J ., filed a dissenting opinion in which DoUGLAS
and BRENNAN, JJ., joined, post, p. 432.
Clyde B. Wells argued the cause and filed a brief for
petitioner.
George R . Georgieff, Assistant Attorney General of
Florida, argued the cause for respondent. With him
on the brief was Robert L. Shevin, Attorney General.
MR. JusTICE REHNQUIST delivered the opinion of the
Court.
Petitioner Schneble and his co defendant Snell were
tried jointly in a Florida state court for murder. At
the trial neither defendant took the stand, but police
428 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
witnesses testified to certain admissions made by each
defendant implicating both of them in the murder.
Both defendants were convicted, and the Florida Supreme
Court affirmed. This Court vacated and remanded the
case for further consideration in the light of Bruton v.
United States, 391 U.S. 123 (1968). Schneble v. Florida,
392 U.S. 298 (1968). Upon remand, the Supreme Court
of Florida reversed Snell's conviction, finding that it had
been obtained in violation of Bruton, but affirmed petitioner's
conviction. We again granted certiorari, limited*
to the question of whether petitioner's conviction
had been obtained in violation of the Bruton rule. In the
circumstances of this case, we find that any violation of
Bruton that may have occurred at petitioner's trial was
harmless beyond a reasonable doubt. We therefore
affirm.
The State's case showed that a threesome consisting of
petitioner, Snell, and the victim, Mrs. Maxine Collier,
left New Orleans in a borrowed automobile en route
to Florida. While they were traveling across the Florida
Panhandle, Mrs. Collier was murdered, and her body
placed in the trunk of the automobile. The body was
then transported in the car to the environs of Tampa,
where it was left behind some bushes in a trash dump.
Petitioner and Snell then continued their odyssey southward
to the Florida Keys, and thence north along the
east coast of Florida. They were apprehended for unrelated
offenses in West Palm Beach, but upon discovering
blood in the trunk of the car police officers there
*The question of whether Schneble's sentence of death in this case
violates the Eighth and Fourteenth Amendment proscription of
"cruel and unusual punishment" is therefore not at issue here. That
question is currently under consideration in Aikens v. CaJ,ifornia, No.
68-5027, and companion cases. All executions in Florida have been
stayed by the Governor's executive order until July 1, 1973. See
Fla. Exec. Order No. 72-8 (Feb. 21, 1972).
SCHNEBLE v. FLORIDA 429
427 Opinion of the Court
commenced the investigation that ultimately led to
the charging of petitioner and Snell with the murder of
Mrs. Collier.
The investigating officers testified at the trial that petitioner
initially, while admitting knowledge of the murder,
claimed that Snell had shot Mrs. Collier while petitioner
was away from the car taking a walk. Petitioner later
conceded, however, that his earlier story was false. He
admitted to the police that it was he who had strangled
Mrs. Collier, and that Snell had finally shot her in the
head as she lay dying. The state court held these admissions
of petitioner to be voluntary and admissible. Since
our grant of certiorari here was limited to the Bruton
issue, our treatment of that question assumes that these
admissions were properly before the trial court.
One of the investigating officers also related at trial a
statement made to him by Snell. Petitioner challenges
this testimony as violative of Bruton, since Snell did not
take the stand and thus was not available for crossexamination.
According to the testimony of this officer,
Snell said petitioner had occupied the rear seat of the car
and had never left Snell alone in the car with Mrs. Collier
during the trip. While Snell's statement fell far short
of the type of comprehensive and detailed confession
made by petitioner, it did tend to undermine petitioner's
initial (but later abandoned) claim that he had left Snell
alone during the time at which the murder occurred.
Snell's statement also placed petitioner in the position in
the car from which the victim could more easily have
been strangled. Thus, petitioner claims, the introduction
of Snell's out-of-court statement, not subject to effective
cross-examination, deprived petitioner of his right of
confrontation in violation of Bruton.
The Court held in Bruton that the admission of a confession
of a codefendant who did not take the stand deprived
the defendant of his rights under the Sixth
430 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
Amendment Confrontation Clause, when that confession
implicated the defendant. Even when the jury
is instructed to consider the confession only against the
declarant, the Court in Bruton determined that the danger
of misuse of the confession by the jury was too great
to be constitutionally permissible. Bruton was held to
be retroactive in Roberts v. Russell, 392 U.S. 293 (1968),
and thus applies to the instant case even though it was
tried more than two years prior to Bruton.
The mere finding of a violation of the Bruton rule
in the course of the trial, however, does not automatically
require reversal of the ensuing criminal conviction. In
some cases the properly admitted evidence of guilt is so
overwhelming, and the prejudicial effect of the codefendant's
admission is so insignificant by comparison,
that it is clear beyond a reasonable doubt that the improper
use of the admission was harmless error.
In Harrington v. California, 395 U. S. 250 (1969), the
defendant was tried for murder jointly with three others.
As in the instant case, he admitted being at the scene
of the crime, but denied complicity. One of his codefendants,
who confessed and implicated him, took the
stand and was subject to cross-examination. The other
two codefendants, whose statements corroborated defendant's
presence at the scene of the crime, did not
take the ~tand. Noting the overwhelming evidence of
Harrington's guilt, and the relatively insignificant prejudicial
impact of these codefendants' statements, the
Court held that any violation of Bruton that had occurred
was harmless error.
In the instant case, petitioner's confession was minutely
detailed and completely consistent with the
objective evidence. He informed police of the precise
location at which they ultimately located the body, and
guided them to this out-of-the-way spot. Although
petitioner initially tried to put the sole blame on Snell,
SCHNEBLE v. FLORIDA 431
427 Opinion of the Court
this version of the facts did not satisfactorily explain
certain deep rope burns on petitioner's hands. When
confronted with the fact of the rope burns, petitioner
admitted that he and Snell had plotted to kill Mrs.
Collier in order to steal her money and the automobile.
Petitioner confessed that he had strangled Mrs. Collier
with a plastic cord, and recounted the commission
of the crime in minute and grisly detail culminating
in Snell's shooting the victim in the head because she
still showed signs of life after the strangulation. These
details of petitioner's later account of the offense were
internally consistent, were corroborated by other objective
evidence, and were not contradicted by any other
evidence in the case. They ~ere consistently reiterated
by petitioner on several occasions after his first exposition
of them.
Not only is the independent evidence of guilt here
overwhelming, as in Harrington, but the allegedly inadmissible
statements of Snell at most tended to corroborate
certain details of petitioner's comprehensive
confession. True, under the judge's charge, the jury
might have found the confession involuntary and therefore
inadmissible. But this argument proves too much;
without Schneble's confession and the resulting discovery
of the body, the State's case against Schneble was
virtually nonexistent. The remaining evidence in the
case-the disappearance of Mrs. Collier sometime during
the trip, and Snell's statement that Schneble sat in the
back seat of the car during the trip and never left Snell
alone with Mrs. Collier-could not by itself convict
Schneble of this or any other crime. Charged as they
were by the judge that they must be "satisfied beyond
a reasonable doubt" and "to a moral certainty" of
Schneble's guilt before they could convict him, the jurors
could on no rational hypothesis have found Schneble
guilty without reliance on his confession. Judicious ap432
OCTOBER TERM, 1971
MARSHALL, J., dissenting 405 U.S.
plication of the harmless-error rule does not require that
we indulge assumptions of irrational jury behavior when
a perfectly rational explanation for the jury's verdict,
completely consistent with the judge's instructions,
stares us in the face. See Rogers v. Missouri Pacific
R. Co., 352 U. S. 500, 504-505 ( 1957).
Having concluded that petitioner's confession was
considered by the jury, we must determine on the basis
of "our own reading of the record and on what seems
to us to have been the probable impact ... on the
minds of an average jury," Harrington v. California,
supra, at 254, whether Snell's admissions were sufficiently
prejudicial to petitioner as to require reversal.
In Bruton, the Court pointed out that "[a] defendant
is entitled to a fair trial but not a perfect one." 391
U. S., at 135, quoting Lutwak v. United States, 344
U. S. 604, 619 (1953). Thus, unless there is a reasonable
possibility that the improperly admitted evidence
contributed to the conviction, reversal is not required.
See Chapman v. California, 386 U. S. 18, 24 (1967).
In this case, we conclude that the "minds of an average
jury" would not have found the State's case significantly
less persuasive had the testimony as to Snell's admissions
been excluded. The admission into evidence of
these statements, therefore, was at most harmless error.
Affirmed.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE
DouGLAS and MR. JusTrCE BRENN AN join, dissenting.
This is a capital case in which the petitioner was convicted
of murder. When the case was last before us, we
vacated the conviction and remanded for further consideration
in light of Bruton v. United States, 391 U. S.
123 (1968). See Schneble v. Florida, 392 U.S. 298 (1968).
On remand, the Supreme Court of Florida reaffirmed
SCHNEBLE v. FLORIDA 433
427 MARSHALL, J., dissenting
the conviction, holding that it was not "inconsistent
with Bruton." While Bruton itself received an extensive
factual analysis by the State Supreme Court, little
attention was paid to the facts of the instant case and
no reasons were proffered in support of the holding
that Bruton was not violated. In today's opinion the
Court rejects the Florida Supreme Court's conclusion
that this case can be squared with Bruton and concludes
that Bruton was violated when the statement of
a nontestifying codefendant implicating petitioner in
the crime charged was introduced at trial. Yet, the
conviction is permitted to stand because the Bruton violation
is viewed as "harmless error" within the meaning
of Chapman v. California, 386 U. S. 18, 24 (1967).
I dissent.
Determining whether or not a constitutional infirmity
at trial is harmless error is ordinarily a difficult task.
This case is easier than most, because it is impossible to
read the record and to conclude that the evidence so
"overwhelmingly" establishes petitioner's guilt that the
admission of the codefendant's statement made no difference
to the outcome.
The Court relies on Harrington v. California, 395
U. S. 250 (1969), to support its conclusion, but that
case is inapposite. In Harrington, the Court found
harmless error where statements of two nontestifying
codefendants were introduced at trial to demonstrate
Harrington's presence at the scene of the crime. That
decision was limited to a factual setting in which the
defendant admits being at the scene, and the improperly
admitted statements of the codefendants are merely
cumulative evidence. I most urgently protest the extension
of that case to these facts.
It is true that prior to trial petitioner confessed to
murdering the victim. But, it is also true that when
he was first arrested, petitioner denied his guilt and
434 OCTOBER TERM, 1971
:MARSHALL, J., dissenting 405 u. s.
placed the full blame on his codefendant. He also
denied being present when the murder was committed.
Only after he was subjected to a series of bizarre acts
by the police designed to frighten him into making
incriminating statements did petitioner "confess." The
full spectrum of events leading up to the confession
is set out in detail in the first opinion of the Supreme
Court of Florida, 201 So. 2d 881, 884-885 (1967).
Petitioner moved to suppress the statements that
he made to the police on the ground that they were
the direct result of pqlice coercion. Recognizing that
the police acted improperly in attempting to obtain
a statement from Schneble, the Florida Supreme Court
upheld the trial court's finding that the incriminating
statements were made in circumstances sufficiently attenuated
from the coercive activities as to remove the
taint. Our limited grant of certiorari does not permit
review of this ruling. But, the limited nature of the
grant does not bar us from looking at the entire record
in the case in order to dispose of the one issue presented.
Before the trial judge permitted the jury to hear testimony
regarding petitioner's incriminating statements,
he made the initial determination that those statements
were voluntary as required by Jackson v. Denno, 378
U. S. 368 (1964). He subsequently instructed the jury
111 the following manner:
"Should you find from the evidence that any
alleged statement or confession as to any defendant
was not freely and voluntarily made, or if you
have a reasonable doubt in this regard, then you
must disregard the same, as well as any other item
of evidence that may have been discovered by the
State by reason of such alleged statement of [sic]
confession." (Tr. 561.)
We have no way of knowing what judgment the jury
made with respect to the voluntariness of petitioner's
SCHNEBLE v. FLORIDA 435
427 MARSHALL, J ., dissenting
statements. In my opinion, there is clearly enough
evidence to support either a finding of voluntariness or
one of coercion. Since an error cannot be harmless if
there is a reasonable possibility that it contributed to
a finding of guilt, all reasonable inferences that might
be drawn from the evidence must be drawn in favor
of the defendant, since the jury may very well have
made just these inferences. Thus, we can assume that
the jury found petitioner's incriminating statements to
be involuntary.
We must also assume that the jury followed the instructions
of the court. and disregarded not only the
statements themselves, but all the evidence "that may
have been discovered by the State by reason of such ...
statementr s l .... " It is possible that the jury may have
found the statements to be involuntary and still relied
on them. See Jackson v. Denno, supra. But, it is by
no means certain that the jury did not meticulously
follow the instructions of the trial judge. See Lego v.
Twomey, 404 U. S. 477 (1972). Since either assumption
may be made, we must again choose the assumption
favorable to the defendant in order to insure
that any error was harmless.
Assuming, then, that the jury completely disregarded
petitioner's incriminating statements and all evidence
derived therefrom, little evidence remains to support
the verdict. Only the statement of the codefendant
places petitioner at the scene of the crime at the relevant
time. Without this statement, it is difficult to
believe that anyone could be convinced of petitioner's
guilt beyond a reasonable doubt.
The Court asserts, however, that "we must determine
on the basis of 'our own reading of the record and
on what seems to us to have been the probable impact
... on the minds of an average jury,' ... whether
Snell's [ the codefendant's] admissions were sufficiently
436 OCTOBER TERM, 1971
MARSHALL, J., dissenting 405 U.S.
prejudicial to petitioner as to require reversal." The
Court concludes that "the 'minds of an average jury'
would not have found the State's case significantly less
persuasive had the testimony as to Snell's admissions
been excluded."
The mistake the Court makes is in assuming that
the jury accepted as true all of the other evidence. The
case turns on this assumption, and as demonstrated
above, it is clearly erroneous. The jury was given the
duty of making an independent determination of the
admissibility of petitioner's incriminating statements and
their fruits. In light of the evidence with respect to
coercive police activities, we cannot say with even a
minimal degree of certainty that the jury did not find
the statements involuntary and that it did not choose
to disregard them and almost all of the other evidence
in the case which was d~rived from those statements.
We also cannot be certain that the jury did not base
its verdict primarily on the statement of the codefendant.
See Malinski v. New York, 324 U. S. 401, 404
(1945); cf. Rogers v. Richmond, 365 U. S. 534 (1961)
(Frankfurter, J.) .
The Court would assume that the jury must have found
petitioner's statements to be voluntary and therefore
admissible along with their fruits, because the other evidence
was insufficient to support a conviction. This assumption
is erroneous for several reasons. First, the
jury may have found that some of petitioner's statements
were involuntary and some were voluntary. The
"voluntary" statements may have been connected with
the codefendant's statement to support the conviction,,
while standing alone they may have been insufficient to
support a guilty verdict. Second, the jury may have
found that the statements were all involuntary but that
some evidence remained free from any taint. Whereas
the Court indicates that if the statements were involunSCHNEBLE
v. FLORIDA 437
427 MARSHALL, J., dissenting
tary, then all the other evidence in the case except the
codefendant's statement must be suppressed as a matter
of law, the jury was given only a general instruction on
suppression and may, incorrectly and unwittingly, have
more narrowly circumscribed the taint. The codefendant's
statement bolstered any other evidence considered
by the jury. Third, the jury may have found the statements
to be involuntary and ignored all the evidence
that the Court says should have been ignored. The
jury may then have convicted on insufficient circumstantial
evidence, including the codefendant's statement.
We need ascribe no malevolence here; we need only
recognize that humans err. Indeed, the very notion of
"harmless error" should constantly remind us of that.*
Any one of these things is a reasonable possibility, and
despite the apparent certainty with which the Court affirms
the decision below, _there remains a deep and haunting
doubt as to whether a constitutional violation contributed
to the conviction.
In light of these uncertainties I find it impossible to
perceive how the Court can conclude that the violation
of Bruton was harmless error. It is significant that
the Florida Supreme Court did not find harmless error
in this case. Unless the Court intends to emasculate
Bruton, supra, or to overrule Chapman v. California,
supra, sub silentio, then I submit that its decision is
clearly wrong.
*Rogers v. !vliss011,ri Pacific R. Co., 352 U. S. 500 (1957), cited by
the Court to support the proposition that we do not lightly infer
irrational jury behavior had nothing whatever to do with a criminal
case generally or with "harmless error" in particular. That case
dealt with the proper function of judge and jury in Federal Employers'
Liability Act cases. It never considered whether reversal
was required when evidence was admitted in violation of the Constit,
ution. Rogers was, in short, a case involving the sufficiency of
the evidence. In such cases we draw precisely the opposite inferences
as drawn in "harmless error" cases.
438 OCTOBER TERM, 1971
Syllabus
EISENSTADT, SHERIFF v. BAIRD
405 U.S.
APPEAL FROM THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 70-17. Argued November 17-18, 1971-Decided March 22, 1972
Appellee attacks his conviction of violating Massachusetts law for
giving a woman a contraceptive foam at the close of his lecture
to students on contraception. That law makes it a felony for
anyone to give away a drug, medicine, instrument, or article for
the prevention of conception except in the case of (1) a registered
physician administering or prescribing it for a married person
or (2) an active registered pharmacist furnishing it to a married
person presenting a registered physician's prescription. The District
Court dismissed appellee's petition for a writ of habeas
corpus. The Court of Appeals vacated the dismissal, holding
that the statute is a prohibition on contraception per se and
conflicts "with fundamental human rights" under Griswold v.
Connecticut, 381 U. S. 479. Appellant, inter alia, argues that
appellee lacks standing to assert the rights of unmarried persons
denied access to contraceptives because he was neither an authorized
distributor under the statute nor a single person unable to
obtain contraceptives. Held:
1. If, as the Court of Appeals held, the statute under which appellee
was convicted is not a health measure, appellee may not
be prevented, because he was not an authorized distributor, from
attacking the statute in its alleged discriminatory application to
potential distributees. Appellee, furthermore, has standing to
assert the rights of unmarried persons denied access to contraceptives
because their ability to obtain them will be materially impaired
by enforcement of the statute. Cf. Griswold, supra;
Barrows v. Jackson, 346 U. S. 249. Pp. 443-446.
2. By providing dissimilar treatment for married and unmarried
persons who are similarly situated, the statute violates the
Equal Protection Clause of the Fourteenth Amendment. Pp.
446-455.
(a) The deterrence of fornication, a 90-day misdemeanor
under Massachusetts law, cannot reasonably be regarded as the
purpose of the statute, since the statute is riddled with exceptions
making contraceptives freely available for use in premarital sexual
EISENSTADT v. BAIRD 439
438 Syllabus
relations and its scope and penalty structure are inconsistent
with that purpose. Pp. 447--450.
(b) Similarly, the protection of public health through the
regulation of the distribution of potentially harmful articles cannot
reasonably be regarded as the purpose of the law, since, if
health were the rationale, the statute would be both discriminatory
and OYerbroad, and fedNal and state Jaws already regulate
the distribution of drugs unsafe for use except under the supervision
of a licensed physician. Pp. 450--452.
(c) Nor can the statute be sustained simply as a prohibition
on contraception per se, for whatever the rights of the individual
to accese to contraceptives may be, the rights must be the same
for the unmarried and the married alike. If under Griswold,
supra, the distribution of contraceptives to married persons cannot
be prohibited, a ban on distribution to unmarried persons would
be equally impermissible, since the constitutionally protected right
of privacy inheres in the individual, not the marital couple. If,
on the other hand, Griswold is no bar to a prohibition on the
distribution of contraceptives, a prohibition limited to unmarried
persons would be underinclusive and invidiously discriminatory.
Pp. 452-455.
429 F. 2d 1398, affirmed.
BRENNAN, J., delivered the opm1on of the Court, in which
DouGLAS, STEWART, and MARSHALL, JJ., joined. DoUGLAs, J.,
filed a concurring opinion, post, p. 455. WHITE. J ., filed an opinion
concurring in the result, in which BLACKMUN, J., joined, post, p. 460.
BURGER, C. J ., filed a dissenting opinion, post, p. 465. PowELL and
REHNQUIST, JJ., took no pa.rt in the consideration or decision of the
case.
Joseph R. Nolan, Special Assistant Attorney General
of Massachusetts, argued the cause for appellant. With
him on the brief were Robert H. Quinn, Attorney General,
John J. Irwin, Jr., and Ruth I. Abrams, Assistant
Attorneys General, and Garrett H. Byrne.
Joseph D. Tydings argued the cause for appellee.
With him on the briefs was Joseph J. Balliro.
Briefs of amici curiae urging affirmance were filed
by Harriet F. Pilpel and Nancy F. Wechsler for the
440 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Planned Parenthood Federation of America, Inc.; by
Roger P. Stokey for the Planned Parenthood League
of Massachusetts; by Melvin L. Wulf for the American
Civil Liberties Union et al.; and by Sylvia S. Elli15on
for Human Rights for Women, Inc.
MR. JusTICE BRENNAN delivered the opinion of the
Court.
Appellee William Baird was convicted at a bench trial
in the Massachusetts Superior Court under Massachusetts
General Laws Ann., c. 272, § 21, first, for exhibiting contraceptive
articles in the course of delivering a lecture on
contraception to a group of students at Boston University
and, second, for giving a young woman a package of
Emko vaginal foam at the close of his address.' The
Massachusetts Supreme Judicial Court unanimously set
aside the conviction for exhibiting contraceptives on the
ground that it violated Baird's First Amendment rights,
but by a four-to-three vote sustained the conviction for
giving away the foam. Commonwealth v. Baird, 355
Mass. 746, 247 N. E. 2d 574 (1969). Baird subsequently
filed a petition for a federal writ of habeas corpus, which
the District Court dismissed. 310 F. Supp. 951 ( 1970).
On appeal, however, the Court of Appeals for the First
Circuit vacated the dismissal and remanded the action
with directions to grant the writ discharging Baird. 429
F. 2d 1398 (1970). This appeal by the Sheriff of Suffolk
County, Massachusetts, followed, and we noted
probable jurisdiction. 401 U.S. 934 (1971). We affirm.
Massachusetts General Laws Ann., c. 272, § 21, under
which Baird was convicted, provides a maximum five-year
term of imprisonment for "whoever ... gives away ...
any drug, medicine, instrument or article whatever
1 The Court of Appeals below described the recipient of the foam
as "an unmarried adult woman." 429 F. 2d 1398, 1399 (1970).
However, there is no evidence in the record about her marital status.
EISENSTADT v. BAIRD 441
438 Opinion of the Court
for the prevention of conception," except as authorized
in § 21A. Under § 21A, "[a] registered physician
may administer to or prescribe for any married person
drugs or articles intended for the prevention of
pregnancy or conception. [And a] registered pharmacist
actually engaged in the business of pharmacy may
furnish such drugs or articles to any married person
presenting a prescription from a registered physician."
2 As interpreted by the State Supreme Judicial
2 Section 21 provides in full:
"Except as provided in section twenty-one A, whoever sells, lends,
gives away, exhibits or offers to sell, lend or give away an instrument
or other article intended to be used for self-abuse, or any
drug, medicine, instrument or article whatever for the prevention
of conception or for causing unlawful abortion, or advertises the
same, or writes, prints, or causes to be written or printed a card,
circular, book, pamphlet, advertisement or notice of any kind
stating when, where, how, of whom or by what means such article
can be purchased or obtained, or manufactures or makes any such
article shall be punished by imprisonment in the state prison for
not more than five years or in jail or the house of correction for
not more than two and one half years or by a fine of not less than
one hundred nor more than one thousand dollars."
Section 21A provides in full:
"A registered physician may administer to or prescribe for any
married person drugs or articles intended for the prevention of
pregnancy or conception. A registered pharmacist actually engaged
in the business of pharmacy may furnish such drugs or articles to
any married person presenting a prescription from a registered
physician.
"A public health agency, a registered nurse, or a maternity health
clinic operated by or in an accredited hospital may furnish information
to any married person as to where professional advice regarding
such drugs or articles may be lawfully obtained.
"This section shall not be construed as affecting the provisions of
sections twenty and twenty-one relutive to prohibition of advertising
of drugs or articles intended for the prevention of pregnancy or conception;
nor shall this section be construed so as to permit the sale
or dispensing of such drugs or articles by means of any vending
machine or similar device."
442 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Court, these provisions make it a felony for anyone,
other than a registered physician or pharmacist acting in
accordance with the terms of § 21A, to dispense any article
with the intention that it be used for the prevention
of conception. The statutory scheme distinguishes
among three distinct classes of distributees-first, married
persons may obtain contraceptives to prevent pregnancy,
but only from doctors or druggists on prescription;
second, single persons may not obtain contraceptives
from anyone to prevent pregnancy; and, third, married
or single persons may obtain contraceptives from anyone
to prevent, not pregnancy, but the spread of disease.
This construction of state law is, of course, binding on us.
E. g., Groppi v. Wisconsin, 400 U.S. 505, 507 (1971).
The legislative purposes that· the statute is meant to
serve are not altogether clear. In Commonwealth v.
Baird, supra, the Supreme Judicial Court noted only the
State's interest in protecting the health of its citizens:
"[T]he prohibition in § 21," the court declared, "is
directly related to" the State's goal of "preventing the
distribution of articles designed to prevent conception
which may have undesirable, if not dangerous, physical
consequences." 355 Mass., at 753, 247 N. E. 2d, at 578.
In a subsequent decision, Sturgis v. Attorney General, 358
Mass. 37, -, 260 N. E. 2d 687, 690 (1970), the court,
however, found "a second and more compelling ground
for upholding the statute"-namely, to protect morals
through "regulating the private sexual lives of single
persons." 3 The Court of Appeals, for reasons that will
3 Appellant suggests that the purpose of the Massachusetts statute
is to promote marital fidelity as well as to discourage premarital
sex. Under § 21A, however, contraceptives may be made available
to married persons without regard to whether they are living with
their spouses or the uses to which the contraceptives are to be
put. Plainly the legislation has no deterrent effect on extramarital
sexual relations.
EISENSTADT v. BAIRD 443
438 Opinion of the Court
appear, did not consider the promotion of health or the
protection of morals through the deterrence of fornication
to be the legislative aim. Instead, the court concluded
that the statutory goal was to limit contraception in
and of itself-a purpose that the court held conflicted
"with fundamental human rights" under Griswold v.
Connecticut, 381 U. S. 479 (1965), where this Court
struck down Connecticut's prohibition against the use
of contraceptives as an unconstitutional infringement
of the right of marital privacy. 429 F. 2d, at 1401-1402.
We agree that the goals of deterring premarital sex
and regulating the distribution of potentially harmful
articles cannot reasonably be regarded as legislative aims
of §§ 21 and 21A. And we hold that the statute, viewed
as a prohibition on contraception per se, violates the
rights of single persons under the Equal Protection
Clause of the Fourteenth Amendment.
I
We address at the outset appellant's contention that
Baird does not have standing to assert the rights of unmarried
persons denied access to contraceptives because
he was neither an authorized distributor under § 21A nor
a single person unable to obtain contraceptives. There
can be no question, of course, that Baird has sufficient
interest in challenging the statute's validity to satisfy the
"case or controversy" requirement of Article III of the
Constitution.4 Appellant's argument, however, is that
4 This factor decisively distinguishes Tileston v. Ullman, 318 U. S.
44 (1943), where the Court held that a physician lacked standing
to bring an action for declaratory relief to challenge, on behalf of
his patients, the Connecticut law prohibiting the use of contraceptives.
The patients were fully able to bring their own action.
Underlying the decision was the concern that "the standards of
'case or controversy' in Article III of the Constitution [not] become
blurred," Griswold v. Connecticut, 381 U. S. 479, 481 ( 1965)-
a problem that is not at all involved in this case.
444 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
this case is governed by the Court's self-imposed rules of
restraint, first, that '_'one to whom application of a statute
is constitutional will not be heard to attack the statute
on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its
application might be unconstitutional," United States v.
Raines, 362 U.S. 17, 21 (1960), and, second, the "closely
related corollary that a litigant may only assert his own
constitutional rights or immunities," id., at 22. Here,
appellant contends that Baird's conviction rests on the
restriction in § 21A on permissible distributors and that
that restriction serves a valid health interest independent
of the limitation on authorized distributees. Appellant
urges, therefore, that Baird's action in giving away the
foam fell squarely within the conduct that the legislature
meant and had power to prohibit and that Baird should
not be allowed to attack the statute in its application to
potential recipients. In any event, appellant concludes,
since Baird was not himself a single person denied access
to contraceptives, he should not be heard to assert their
rights. We cannot agree.
The Court of Appeals held that the statute under
which Baird was convicted is not a health measure. If
that view is correct, we do not see how Baird may be
prevented, because he was neither a doctor nor a druggist,
from attacking the statute in its alleged discriminatory
application to potential distributees. We think, too, that
our self-imposed rule against the assertion of third-party
rights must be relaxed in this case just as in Griswold v.
Connecticut, supra. There the Executive Director of the
Planned Parenthood League of Connecticut and a licensed
physician who had prescribed contraceptives for
married persons and been convicted as accessories to
the crime of using contraceptives were held to have
standing to raise the constitutional rights of the patients
with whom they had a professional relationship.
EISENSTADT v. BAIRD 445
438 Opinion of the Court
Appellant here argues that the absence of a professional
or aiding-and-abetting relationship distinguishes this case
from Griswold. Yet, as the Court's discussion of prior
authority in Griswold, 381 U. S., at 481, indicates, the
doctor-patient and accessory-principal relationships are
not the only circumstances in which one person has been
found to have standing to assert the rights of another.
Indeed, in Barrows v. Jackson, 346 U. S. 249 (1953), a
seller of land was entitled to def end against an action
for damages for breach of a racially restrictive covenant
on the ground that enforcement of the covenant
violated the equal protection rights of prospective
non-Caucasian purchasers. The relationship there between
the defendant and those whose rights he sought to
assert was not simply the fortuitous connection between
a vendor and potential vendees, but the relationship between
one who acted to protect the rights of a minority
and the minority itself. Sedler, Standin_g to Assert
Constitutional Jus Tertii in the Supreme Court, 71
Yale L. J. 599, 631 (1962). And so here the relationship
between Baird and those whose rights he seeks to assert
is not simply that between a distributor and potential
distributees, but that bet,veen an advocate of the rights
of persons to obtain contraceptives and those desirous
of doing so. The very point of Baird's giving away the
vaginal foam was to challenge the Massachusetts statute
that limited access to contraceptives.
In any event, more important than the nature of the
relationship between the litigant and those whose rights
he seeks to assert is the impact of the litigation on the
third-party interests.' In Griswold, 381 U.S., at 481, the
5 Indeed, in First Amendment cases we have relaxed our rules of
standing without regard to the relationship between the litigant and
those whose rights he seeks to assert precisely because application
of those rules would have an intolerable, inhibitory effect on freedom
of speech. E.g., Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940).
See United States v. Raines, 362 U.S. 17, 22 (1960).
446 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Court stated: "The rights of husband and wife, pressed
here, are likely to be diluted or adversely affected unless
those rights are considered in a suit involving those who
have this kind of confidential relation to them." A similar
situation obtains here. Enforcement of the Massachusetts
statute ,vill materially impair the ability of
single persons to obtain contraceptives. In fact, the
case for according standing to assert third-party rights
is stronger in this regard here than in Griswold because
unmarried persons denied access to contraceptives in
Massachusetts, unlike the users of contraceptives in Connecticut,
are not themselves subject to prosecution and,
to that extent, are denied a forum in which to assert their
own rights. Cf. NAACP v. Alabama, 357 U. S. 449
(1958); Barrows v. Jackson, supra.6 The Massachusetts
statute, unlike the Connectiqut law considered in Griswold,
prohibits, not use, but distribution.
For the foregoing reasons we hold that Baird, who is
now in a position, and plainly has an adequate incentive,
to assert the rights of unmarried persons denied access to
contraceptives, has standing to do so. We turn to the
merits.
II
The basic principles governing application of the Equal
Protection Clause of the Fourteenth Amendment are
familiar. As THE CHIEF JUSTICE only recently explained
in Reed v. Reed, 404 U. S. 71, 75-76 (1971):
"In applying that clause, this Court has consistently
recognized that the Fourteenth Amendment
6 See also Prince v. Massachusetts, 321 U. S. 158 (1944), where
a custodian, in violation of state law, furnished a child with m11g!lzines
to distribute on the streets. The Court there implicitly held
that the custodian had standing to assert alleged freedom of religion
and equal protection rights of the child that were threatened in the
very litigation before the Court and that the child had no effective
way of asserting herself.
438
EISENSTADT v. BAIRD 447
Opinion of the Court
does not deny to States the power to treat different
classes of persons in different ways. Barbier v.
Connolly, 113 U. S. 27 (1885); Lindsley v. Natural
Carbonic Gas Co., 220 U. S. 61 (1911); Railway
Express Agency v. New York, 336 U. S. 106
(1949); McDonald v. Board of Election Commissioners,
394 U.S. 802 (1969). The Equal Protection
Clause of that amendment does, however, deny to
States the power to legislate that different treatment
be accorded to persons placed by a statute into
different classes on the basis of criteria wholly unrelated
to the objective of that statute. A classification
'must be reasonable, not arbitrary, and must
rest upon some ground of differe~ce having a fair
and substantial relation to the object of the legislation,
so that all persons similarly circumstanced
shall be treated alike.' Royster Guano Co. v. Virginia,
253 U. S. 412, 415 ( 1920) ."
The question for our determination in this case is
whether there is some ground of difference that rationally
explains the different treatment accorded married and
unmarried persons under Massachusetts General Laws
Ann., c. 272, §§ 21 and 21A. 1 For the reasons that
follow, we conclude that no such ground exists.
First. Section 21 stems from Mass. Stat. 1879, c. 159,
§ 1, which prohibited, without exception, distribution of
articles intended to be used as contraceptives. In Commonwealth
v. Allison, 227 Mass. 57, 62, 116 N. E. 265,
7 Of course, if we were to conclude that the Massachusetts statute
impinges upon fundamental freedoms under Griswold, the statutory
classification would have to be not merely rationally related to a
valid public purpose but necessar1J to the arhievement of a compelling
state interest. E. g., Shapiro v. Thompson, 394 U. S. 618
(1969); Loving v. Virginia, 388 U. S. 1 (1967). But just as in
Reed v. Reed, 404 U. S. 71 (1971), we do not have to address the
statute's validity under that test brcause the law fails to satisfy even
the more lenient equal protection standard.
448 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
266 (1917), the Massachusetts Supreme Judicial Court
explained that the law's "plain purpose is to protect
purity, to preserve chastity, to encourage continence and
self restraint, to defend the sanctity of the home, and
thus to engender in the State and nation a virile and
virtuous race of men and women." Although the State
clearly abandoned that purpose with the enactment of
§ 21A, at least insofar as the illicit sexual activities of
married persons are concerned, see n. 3, supra, the court
reiterated in Sturgis v. Attorney General, supra, that the
object of the legislation is to discourage premarital sexual
intercourse. Conceding that the State could, consistently
with the Equal Protection Clause, regard the problems
of extramarital and premarital sexual relations as
" [ e] vils . . . of different dimensions and proportions,
requiring different remedies," Williamson v. Lee Optical
Co., 348 U. S. 483, 489 (1955), we cannot agree that
the deterrence of premarital sex may reasonably be regarded
as the purpose of the Massachusetts law.
It would be plainly unreasonable to assume that
Massachusetts has prescribed pregnancy and the birth
of an unwanted child as punishment for fornication,
which is a misdemeanor under Massachusetts General
Laws Ann., c. 272, § 18. Aside from the scheme of values
that assumption would attribute to the State, it is abundantly
clear that the effect of the ban on distribution of
contraceptives to unmarried persons has at best a marginal
relation to the proffered objective. What Mr. Justice
Goldberg said in Griswold v. Connecticut, supra, at
498 ( concurring opinion), concerning the effect of Connecticut's
prohibition on the use of contraceptives in discouraging
extramarital sexual relations, is equally
applicable here. "The rationality of this justification is
dubious, particularly in light of the admitted widespread
availability to all persons in the State of Connecticut, unmarried
as well as married, of birth-control devices for the
EISENSTADT v. BAIRD 449
438 Opinion of the Court
prevention of disease, as distinguished from the prevention
of conception." See also id., at 505-507 (WHITE, J.,
concurring in judgment). Like Connecticut's laws,
§§ 21 and 21A do not at all regulate the distribution of
contraceptives when they are to be m~ed to prevent, not
pregnancy, but the spread of disease. Commonwealth
v. Corbett, 307 Mass. 7, 29 N. E. 2d 151 (1940), cited
with approval in Commonwealth v. Baird, 355 Mass.,
at 754, 247 N. E. 2d. at 579. Nor, in making contraceptives
available to married persons without regard to
their intended use, does Massachusetts attempt to deter
married persons from engaging in illicit sexual relations
with unmarried persons. Even on the assumption that
the fear of pregnancy operates as a deterrent to fornication,
the Massachusetts statute is thus so riddled with
exceptions that deterrence of premarital sex cannot
reasonably be regarded as its aim.
Moreover, §§ 21 and 21A on their face have a dubious
relation to the State's criminal prohibition on fornication.
As the Court of Appeals explained, "Fornication is a misdemeanor
[in Massachusetts}, entailing a thirty dollar
fine, or three months in jail. Massachusetts General
Laws Ann. c. 272 § 18. Violation of the present statute
is a felony, punishable by five years in prison. We find
it hard to believe that the legislature adopted a statute
carrying a five-year penalty for its possible, obviously by
no means fully effective, deterrence of the commission
of a ninety-day misdemeanor." 429 F. 2d, at 1401.
Even conceding the legislature a full measure of discretion
in fashioning means to prevent fornication, and
recognizing that the State may seek to deter prohibited
conduct by punishing more severely those who facilitate
than those who actually engage in its commission, we,
like the Court of Appeals, cannot believe that in this
instance Massachusetts has chosen to expose the aider
and abetter who simply gives away a contraceptive to
450 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
20 times the 90-day sentence of the offender himself.
The very terms of the State's criminal statutes, coupled
with the de minimis effect of §§ 21 and 21A in deterring
fornication, thus compel the conclusion that such deterrence
cannot reasonably be taken as the purpose of the
ban on distribution of contraceptives to unmarried
persons.
Second. Section 21A was added to the Massachusetts
General Laws by Stat. 1966, c. 265, § 1. The Supreme
Judicial Court in Commonwealth v. Baird, supra, held
that the purpose of the amendment was to serve the
health needs of the community by regulating the distribution
of potentially harmful articles·. It is plain that
Massachusetts had no such purpose in mind before the
enactment of § 21A. As the Court of Appeals remarked,
"Consistent with the fact that the statute was contained
in a chapter dealing with 'Crimes Against Chastity,
Morality, Decency and Good Order,' it was cast only in
terms of morals. A physician was forbidden to prescribe
contraceptives even when needed for the protection
of health. Commonwealth v. Gardner, 1938, 300
Mass. 372, 15 N. E. 2d 222." 429 F. 2d, at 1401. Nor
did the Court of Appeals "believe that the legislature [in
enacting § 21A] suddenly reversed its field and developed
an interest in health. Rather, it merely made what it
thought to be the precise accommodation necessary to
escape the Griswold ruling." Ibid.
Again, we must agree with the Court of Appeals. If
health were the rationale of § 21A, the statute would be
both discriminatory and overbroad. Dissenting in Commonwealth
v. Baird, 355 Mass., at 758, 247 N. E. 2d,
at 581, Justices Whittemore and Cutter stated that they
saw "in § 21 and § 21A, read together, no public health
purpose. If there is need to have a physician prescribe
(and a pharmacist dispense) contraceptives, that need
is as great for unmarried persons as for married persons."
EISENSTADT v. BAIRD 451
438 Opinion of the Court
The Court of Appeals added: "If the prohibition [ on
distribution to unmarried persons] ... is to be taken to
mean that the same physician who can prescribe for
married patients does not have sufficient skill to protect
the health of patients who lack a marriage certificate, or
who may be currently divorced, it is illogical to the point
of irrationality." 429 F. 2d, at 1401.8 Furthermore, we
must join the Court of Appeals in noting that not all
contraceptives are potentially dangerous.9 As a result,
if the Massachusetts statute were a health measure, it
would not only invidiously discriminate against the unmarried,
but also be overbroad ·with respect to the
married, a fact that the Supreme Judicial Court itself
seems to have conceded in Sturgu; v. Attorney General,
358 Mass., at - , 260 ~- E. 2d, at 690, where it noted
that "it may well he that certain contraceptive medication
and devices constitute no hazard to health, in which
event it could be argued that the statute swept too broadly
in its prohibition." "In this posture," as the Court of
8 Appellant insists that the unmarried have no right to engage in
sexual intercourse and hence no health interest in contraception that
needs to be served. The short answer to this contention is that the
same devices the distribution of which the State purports to regulate
when their asserted purpose is to forestall pregnancy are available
without any controls whatsoever so long as their asserted purpose is
to prevent the spread of disease. It is inconceivable that the need
for health controls varies with the purpose for which the contraceptive
is to be used when the physical art in all cases is one and the same.
9 The Court of Appeals stated, 429 F. 2d, at 1401:
"[WJ e must take notice that not all contraceptive devices risk
'undesirable . . . [or] dangerous physical consequences.' It is 200
years since Casanova recorded the ubiquitous article which, perhaps
because of the birthplace of its inventor, he termed a 'redingote
anglais.' The reputed nationality of the condom has now changed,
hut we have never heard criticism of it on the side of health. We
cannot think that the legislature was unaware of it, or could have
thought that it needed a medical prescription. We believe the same
could be said of certain other products."
452 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
Appeals concluded, "it is impossible to think of the
statute as intended as a health measure for the unmarried,
and it is almost as difficult to think of it as so
intended even as to the married." 429 F. 2d, at 1401.
But if further proof that the Massachusetts statute is
not a health measure is necessary, the argument of
Justice Spiegel, who also dissented in Commonwealth v.
Baird, 355 Mass., at 759, 247 N. E. 2d, at 582, is conclusive:
"It is at best a strained.conception to say that the
Legislature intended to prevent the distribution of articles
'which may have undesirable, if not dangerous,
physical consequences.' If that was the Legislature's
goal, § 21 is not required" in view of the federal and
state laws already regulating the distribution of harmful
drugs. See Federal Food, Drug, and Cosmetic Act, § 503,
52 Stat. 1051, as amended, 21 U.S. C. § 353; Mass. Gen.
Laws Ann., c. 94, § 187A, as amended. We conclude, accordingly,
that, despite the statute's superficial earmarks
as a health measure, health, on the face of the
statute, may no more reasonably be regarded as its purpose
than the deterrence of premarital sexual relations.
Third. If the Massachusetts statute cannot be upheld
as a deterrent to fornication or as a health measure, may
it, nevertheless, be sustained simply as a prohibition on
contraception? The Court of Appeals analysis "led inevitably
to the conclusion that, so far as morals are concerned,
it is contraceptives per se that are considered immoral-
to the extent that Griswold will permit such a
declaration." 429 F. 2d, at 1401-1402. The Court of
Appeals went on to hold, id., at 1402:
"To say that contraceptives are immoral as such,
and are to be forbidden to unmarried persons who
will nevertheless persist in having intercourse, means
that such persons must risk for themselves an unwanted
pregnancy, for the child, illegitimacy, and
438
EISENSTADT v. BAIRD 453
Opinion of the Court
for society, a possible obligation of support. Such
a view of morality is not only the very mirror image
of sensible legislation; we consider that it conflicts
with fundamental human rights. In the absence
of demonstrated harm, we _h old it is beyond the
competency of the state."
We need not and do not, however, decide that important
question in this case because, whatever the rights of the
individual to access to contraceptives may be, the rights
must be the same for the unmarried and the married
alike.
If under Griswold the distribution of contraceptives
to married persons cannot be prohibited, a ban on distribution
to unmarried pers~ns would be equally imperrpissible.
It is true that in Griswold the right of privacy
in question inhered in the marital relationship. Yet the
marital couple is not an independent entity with a mind
and heart of its own, but an association of two individuals
each with a separate intellectual and emotional
makeup. If the right of privacy means anything, it is
the right of the individual, married or single, to be free
from unwarranted governmental intrusion into matters
so fundamentally affecting a person as the decision
whether to bear or beget a child. See Stanley v. Georgia,
394 U. S. 557 (1969).10 See also Skinner v. Okla-
10 In Stanley, 394 U. S., at 564, the Court stated;
"[A]lso fundamental is the right to be free, except in very limited
circumstances, from unwanted governmental intrusions into one's
privacy.
" 'The makers of our Constitution undertook to secure conditions
favorable to the pursuit of happiness. They recognized the significance
of man's spiritual nature, of his feelings and of his intellect.
They knew that only a part of the pain, pleasure and satisfactions
of life are to be found in material things. They sought to
protect Americans in their beliefs, their thoughts, their emotions
and their sensations. They conferred, as against the Government,
454 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
homa, 316 U. S. 535 (1942); Jacobson v. Massachusetts,
197 U. S. 11, 29 (1905).
On the other hand, if Gr-iswold is no bar to a prohibition
on the distribution of contraceptives, the State
could not, consistently with the Equal Protection Clause,
outlaw distribution to unmarried but not to married
persons. In each case the evil, as perceived by the State,
would be identical, and the underinclusion would be invidious.
Mr. Justice Jackson, concurring in Railway
Express Agency v. New York, 336 U. S. 106, 112-113
(1949), made the point:
"The framers of the Constitution knew, and we
should not forget today, that ther:e is no more effective
practical guaranty against arbitrary and unreasonable
government than to require that the
principles of law which officials would impose upon
a minority must be imposed generally. Conversely,
nothing opens the door to arbitrary action so effectively
as to allow those officials to pick and choose
only a few to whom they will apply legislation and
thus to escape the political retribution that might
be visited upon them if larger numbers were affected.
Courts can take no better measure to assure
that laws will be just than to require that laws
be equal in operation."
Although Mr. Justice Jackson's comments had reference
to administrative regulations, the principle he affirmed
has equal application to the legislation here. We hold
that by providing dissimilar treatment for married and
unmarried persons who are similarly situated, Massathe
right to be let alone-the most comprehensive of rights and the
right most valued by civilized man.' Ol1mtead v. United States,
277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).
"See Griswold v. Connecticut, supra; cf. NAACP v. Alabama, 357 u. s. 449, 462 (1958)."
EISENSTADT v. BAIRD 455
438 DouGLAS, J., concurring
chusetts General Laws Ann., c. 272, §§ 21 and 21A, violate
the Equal Protection Clause. The judgment of the
Court of Appeals is
Affirmed.
MR. JusTICE POWELL and MR. JuSTICE REHNQUIST
took no part in the consideration or decision of this case.
MR. JusTICE DouGLAS, concurring.
While I join the opinion of the Court, there is for me a
narrower ground for affirming the Court of Appeals.
This to me is a simple First Amendment case, that
amendment being applicable to the States by reason of
the Fourteenth. Stromberg v. California, 283 U. S. 359.
Under no stretch of the law as presently stated could
Massachusetts require a license for those who desire to
lecture on planned parenthood, contraceptives, the rights
of women, birth control, or any allied subject, or place
a tax on that privilege. As to license taxes on First
Amendment rights we said in Murdock v. Pennsylvania,
319 u. s. 105, 115:
"A license tax certainly does not acquire constitutional
validity because it classifies the privileges
protected by the First Amendment along with the
wares and merchandise of hucksters and peddlers and
treats them all alike. Such equality in treatment
does not save the ordinance. Freedom of press,
freedom of speech, freedom of religion are in a preferred
position."
We held in Thomas v. Collins, 323 U. S. 516, that a
person speaking at a labor union rally could not be
required to register or obtain a license:
"As a matter of principle a requirement of registration
in order to make a public speech would seem
generally incompatible with an exercise of the rights
456 OCTOBER TERM, 1971
DOUGLAS, J., concurring 405 U.S.
of free speech and free assembly. Lawful public
assemblies, involving no element of grave and immediate
danger to an interest the State is entitled to
protect, are not instruments of harm which require
previous identification of the speakers. And the
right either of workmen or of unions under theEe
conditions to assemble and discuss their own affairs
is as fully protected by the Constitution as the right
of businessmen, farmers, educators, political party
members or others to assemble and discuss their
affairs and to enlist the support of others.
" ... If one who solicits support for the cause of
labor may be required to register as a condition to
the exercise of his right° to make a public speech, so
may he who seeks to rally support for any social,
business, religious or political cause. We think a
requirement that one must register before he undertakes
to make a public speech to enlist support for a
lawful movement is quite incompatible with the
requirements of the First Amendment." Id., at
539, 540.
Baird addressed an audience of students and faculty at
Boston University on the subject of birth control and
overpopulation. His address was approximately one
hour in length and consisted of a discussion of various
contraceptive devices displayed by means of diagrams
on two demonstration boards, as well as a display of
contraceptive devices in their original packages. In addition,
Baird spoke of the respective merits of various
contraceptive devices; overpopulation in the world; crises
throughout the world due to overpopulation; the large
number of abortions performed on unwed mothers; and
quack abortionists and the potential harm to women resulting
from abortions performed by quack abortionists.
Baird also urged members of the audience to petition the
Massachusetts Legislature and to make known their feelEISENSTADT
v. BAIRD 457
438 DOUGLAS, J., concurring
ings with regard to birth control laws in order to bring
about a change in the laws. At the close of the address
Baird invited members of the audience to come to the
stage and help themselves to the contraceptive articles.
We do not know how many accepted Baird's invitation.
We only know that Baird personally handed one woman
a package of Emko Vaginal Foam. He was then arrested
and indicted ( 1) for exhibiting contraceptive devices and
(2) for giving one such device away. The conviction for
the first offense was reversed, the Supreme Judicial Court
of Massachusetts holding that the display of the articles
was essential to· a graphic representation of the lecture.
But the conviction for the giving away of one article was
sustained. 355 Mass. 746, 247 N. E. 2d 574. The case
reaches us by federal habeas corpus.
Had Baird not "given away" a sample of one of the
devices whose use he advocated, there could be no question
about the protection afforded him by the First
Amendment. A State may not "contract the spectrum
of available knowledge." Gri,swold v. Connecticut, 381
U.S. 479, 482. See also Thomas v. Collins, supra; Pierce
v. Society of Si,slers, 268 U. S. 510; Meyer v. Nebraska,
262 U. S. 390. However noxious Baird's ideas might
have been to the authorities, the freedom to learn about
them, fully to comprehend their scope and portent, and
to weigh them against the tenets of the "conventional
wisdom," may not be abridged. Terminiello v. Chicago,
337 U. S. 1. Our system of government requires that we
have faith in the ability of the individual to decide wisely,
if only he is fully apprised of the merits of a controversy.
"Freedom of discussion, if it would fulfill its
historic function in this nation, must embrace all
issues about which information is needed or appropriate
to enable the members of society to cope with
the exigencies of their period." Thornhill v. Alabama.
310 U. S. 88, 102.
The teachings of Baird and those of Galileo might be
458 OCTOBER TERM, 1971
DOUGLAS, J., concurring 405 u. s.
of a different order; but the suppression of either is
equally repugnant.
As Milton said in the Areopagitica, "Give me the liberty
to know, to utter, and to argue freely according to
conscience, above all liberties."
It is said that only Baird's conduct is involved and
United States v. O'Brien, 391 U. S. 367, is cited. That
case involved a registrant under the Selective Service Act
burning his Selective Service draft card. When prosecuted
for that act, he defended his conduct as "symbolic
speech." The Court held it was not.
Whatever may be thought of that decision on the
merits,' O'Brien is not controlling here. The distinction
between "speech" and "conduct" is a valid one, insofar
as it helps to determine in a particular case whether the
purpose of the activity was to aid in the communication
of ideas, and whether the form of the communication so
interferes with the rights of others that reasonable regulations
may be imposed.2 See Public Utilities Comm'n
v. Pollak, 343 U. S. 451, 467 (DOUGLAS, J., dissenting).
1 I have earlier expressed my reasons for believing that the O'Brien
decision was not consistent with First Amendment rights. See
Brandenburg v. Ohio, 395 U. S. 444, 455 ( concurring opinion).
2 In Giboney v. Empire Storage Co., 336 U. S. 490, the Court upheld
a state court injunction against peaceful picketing carried on
in violation of a state "anti-restraint-of-trade" law. Giboney, however,
is easily distinguished from the present case. Under the circumstances
there present, "There was clear danger, imminent and
immediate, that unless restrained, appellants would succeed in
making lstate antitrust] policy a dead letter . . . . They were
exercising their economic power together with that of their allies to
compel Empire to abide by union rather than by state regulation
of trade." Id., at 503 (footnote omitted; emphasis supplied).
There is no such coercion in the instant case nor is there a similar
frustration of state policy, see text at n. 4, infra. For an analysis
of the state policies underlying the Massachusetts statute which
Baird was convicted of having violated, sec Dienes, The Progeny of
Comstockery-Birth Control Laws Return to Court, 21 Am. U. L.
Rev. 1, 3-44 (1971).
EISENSTADT v. BAIRD 459
438 DouGLAB, J., concurring
Thus, excessive noise might well be "conduct"- a form
of pollution- which can be made subject to precise, narrowly
drawn regulations. See Adderley v. Flonda, 385
U. S. 39, 54 (DorGLAS, J., dissenting). But "this Court
has repeatedly stated, [First Amendment] rights are not
confined to verbal expression. They embrace appropriate
types of action .... " Brown v. Louisiana, 383 U.S.
131, 141-142.
Baird gave an hour's lecture on birth control and as
an aid to understanding the ideas which he was propagating
he handed out one sample of one of the devices
whose use he was endorsing. A person giving a lecture
on coyote-getters would certainly improve his teaching
technique if he passed one out to the audience; and he
would be protected in doing so unless of course the device
was loaded and ready to explode, killing or injuring
people. The same holds true in my mind for mousetraps,
spray guns, or any other article not dangerous
per se on which speakers give educational lectures.
It is irrelevant to the application of these principles
that Baird went beyond the giving of information about
birth control and advocated the use of contraceptive
articles. The First Amendment protects the opportunity
to persuade to action whether that action be unwise or immoral,
or whrther the speech incites to action. See, e. g.,
Brandenburg v. Ohio, 395 l!. ~- 444; Edwards v. South
Carolina, 372 F. S. 229; Terminiello v. Chicago, supra.
In this case there was not even incitement to action.3
There is no evidence or finding that Baird intended that
the young lady take the foam home with her when he
handed it to her or that she would not have examined the
3 Even under the restrictive meaning which the Court has given
the First Amendment, as applied to the Stat('S by the Fourteenth,
advocacy of law violation is permissible "except where such advocacy
is directed to inciting or producing imminent lawless action and is
likely to incite or produce such action." Brandenbitrg v. Ohio,
supra, n. 1, at 447.
460 OCTOBER TERM, 1971
WHITE, J., concurring in result 405 u. s.
article and then returned it to Baird, had he not been
placed under arrest immediately upon handing the article
over.4
First Amendment rights are not limited to verbal
expression.5 The right to petition often involves the
right to walk. The right of assembly may mean pushing
or jostling. Picketing involves physical activity as well
as a display of a sign. A sit-in can be a quiet, dignified
protest that has First Amendment protection even though
no speech is involved, as we held in Brown v. Louisiana,
supra. Putting contraceptives on display is certainly
an aid to speech and discussion. Handing an article
under discussion to a member of the audience is a
technique known to all teachers and is commonly used.
A handout may be on such a scale as to smack of a vendor's
marketing scheme. But passing one article to an
audience is merely a projection of the visual aid and
should be a permissible adjunct of free speech. Baird
was not making a prescription nor purporting to give
medical advice. Handing out the article was not even a
suggestion that the lady use it. At most it suggested
that she become familiar with the product line.
I do not see how we can have a Society of the Dialogue,
which the First Amendment envisages, if time-honored
teaching techniques are barred to those who give educational
lectures.
MR. JUSTICE WHITE, with whom MR. JUSTICE BLACKMUN
joins, concurring in the result.
In Griswold v. Connecticut, 381 U. S. 479 (1965), we
reversed criminal convictions for advising married per-
4 This factor alone would seem to distinguish O'Brien, supra, as
that case turned on the Court's judgment that O'Brien's "conduct"
frustrated a substantial governmental interest.
5 For a partial collection of cases involving action that comes
under First Amendment protection see Brandenburg v. Ohio, supra,
n. 1, at 455-456 ( concurring opinion).
EISENSTADT v. BAIRD 461
438 WHITE, J., concurring in result
sons with respect to the use of contraceptives. As there
applied, the Connecticut law, which forbade using contraceptives
or giving advice on the subject, unduly invaded
a zone of marital privacy protected by the Bill of
Rights. The Connecticut law did not regulate the manufacture
or sale of such products and we expressly left
open any question concerning the permissible scope of
such legislation. 381 U. S., at 485.
Chapter 272, § 21, of the Massachusetts General Laws
makes it a criminal offense to distribute, sell, or give away
any drug, medicine, or article for the prevention of conception.
Section 21A excepts from this prohibition registered
physicians who prescribe for and administer such
articles to married persons and registered pharmacists
who dispense on medical prescription.1
1 Section 21 provides as follows:
"Except as provided in section twenty-one A, whoever sells,
lends, gives away, exhibits or offers to sell, lend or give away an
instrument or other article intended to be used for self-abuse, or any
drug, medicine, instrument or article whatever for the prevention
of conception or for causing unlawful abortion, or advertises the
same, or writes, prints, or causes to be written or printed a card,
circular, book, pamphlet, advertisement or notice of any kind
stating when, where, how, of whom or by what means such
article ca.n be purchased or obtained, or manufactures or makes
any such article shall be punished by imprisonment in the state
prison for not more than five years or in jail or the house of
correction for not more than two and one half years or by a fine
of not less than one hundred nor more than one thousand dollars."
Section 21A makes these exceptions:
"A registered physician may administer to or prescribe for any
married person drugs or articles intended for the prevention of
pregnancy or conception. A registered pharmacist actually engaged
in the business of pharmacy may furnish such drugs or articles
to any married person presenting a prescription from a registered
physician.
"A public health agency, a registered nurse, or a maternity health
clinic operated by or in an accredited hospital may furnish infor462
OCTOBER TERM, 1971
WHITE, J., concurring in result 405 U.S.
Appellee Baird was indicted for giving away Emko
Vaginal Foam, a "medicine and article for the prevention
of conception .... " 2 The State did not purport to
charge or convict Baird for distributing to an unmarried
person. No proof was offered as to the marital status
of the recipient. The gravamen of the offense charged
was that Baird had no license and therefore no authority
to distribute to anyone. As the Supreme Judicial Court
of Massachusetts noted, the constitutional validity of
Baird's conviction rested upon his lack of status as a
"distributor and not ... the marital status of the recipient."
Commonwealth v. Baird, 355 Mass. 746, 753, 247
:N. E. 2d 574, 578 (1969). The Federal District Court
was of the same view.3
mation to any manied person as to where professional advice
regarding such drugs _or articles may be lawfully obtained.
"This section shall not be construed as affecting the provisions
of sections twenty and twenty-one relative to prohibition of advertising
of drugs or articles intended for the prevention of pregnancy
or conception; nor shall this section be construed so as to permit the
sale or dispensing of such drugs or articles by means of any vending
machine or similar device."
2 The indictment states:
"The Jurors for the Commonwealth of Massachusetts on thrir oath
present that William R. Baird, on the sixth day of April, in the
year of our Lord one thousand nine hundred and sixty-seven, did
unlawfully give away a certain medicine and article for the prevention
of conception, to wit: Emko Vaginal Foam, the giving away of
the said medicine and article by the said William R. Baird not
being in accordance with, or authorized or permitted by, the provisions
of Section 21A of Chaptrr 272, of the General Laws of the
said Commonwealth."
3 "Had § 21A authorized registered physicians to administer or
prescribe contraceptives for unmarried as well as for married persons,
the legal position of the petitioner would not have been in
any way altered. Not being a physician he would still have been
prohibited by § 21 from 'giving away' the contraceptive." 310 F.
Supp. 951, 954 (Mass. 1970).
EISENSTADT v. BAIRD 463
438 WHITE, J., concurring in result
I assume that a State's interest in the health of its
citizens empowers it to restrict to medical channels the
distribution of products whose use should be accompanied
by medical advice. I also do not doubt that various
contraceptive medicines and articles are properly available
only on prescription, and I therefore have no difficulty
with the Massachusetts court's characterization of
the statute at issue here as expressing "a legitimate interest
in preventing the distribution of articles designed
to prevent conception which may have undesirable, if
not dangerous, physical consequences." /.d., at 753, 247
N. E. 2d, at 578. Had Baird distributed a supply of the
so-called "pill," I would sustain his conviction under this
statute.' Requiring a prescription to obtain potentially
dangerous contraceptive material may place a substantial
burden upon the right recognized in Griswold, but that
burden is justified by a strong state interest and does
not, as did the statute at issue in Gnswoid, sweep unnecessarily
broadly or seek "to achieve its goals by means
having a maximum destructive impact upon" a protected
relationship. Griswold v. Connecticut, 381 U. S., at 485.
Baird, however, was found guilty of giving away vaginal
foam. Inquiry into the validity of this conviction
does not come to an end merely because some contraceptives
are harmful and their distribution may be restricted.
Our general reluctance to question a State's
judgment on matters of public health must give way
where, as here, the restriction at issue burdens the con-
4 The Food and Drug Administration has made a finding that
birth control pills pose possible hazards to health. It therefore
restricts distribution and receipt of such products in interstate
commerce to properly labeled packages that must be sold pursuant
to a prescription. 21 CFR § 130.45. A violation of this
law is punishable by imprisonment for one year, a fine of not more
than $10,000, or both. 21 U. S. C. §§ 331, 333.
464 OCTOBER TERM, 1971
WHITE, .T., concurring in result 405 u. s.
stitutional rights of married persons to use contraceptives.
In these circumstances we may not accept on faith the
State's classification of a particular contraceptive as
dangerous to health. Due regard for protecting constitutional
rights requires that the record contain evidence
that a restriction on distribution of vaginal foam
is essential to achieve the statutory purpose, or the relevant
facts concerning the product must be such as to
fall within the range of judicial notice.
Neither requirement is met here. Nothing in the record
even suggests that the distribution of vaginal foam
should be accompanied by medical advice in order to
protect the user's health. Nor does the opinion of the
Massachusetts court or the State's brief filed here marshal
facts demonstrating that the hazards of using vaginal
foam are common knowledge or so incontrovertible that
they may be noticed judicially. On the contrary, the
State acknowledges that Emko is a product widely available
without prescription. Given Griswold v. Connecticut,
supra, and absent proof of the probable hazards
of using vaginal foam, we could not sustain appellee's
conviction had it been for selling or giving
away foam to a married person. Just as in Gr~wold,
where the right of married persons to use contraceptives
was "diluted or adversely affected" by permitting a conviction
for giving advice as to its exercise, id., at 481, so
here, to sanction a medical restriction upon distribution
of a contraceptive not proved hazardous to health would
impair the exercise of the constitutional right.
That Baird could not be convicted for distributing
Emko to a married person disposes of this case. Assuming,
arguendo, that the result would be otherwise had the
recipient been unmarried, nothing has been placed in the
record to indicate her marital status. The State has
maintained that marital status is irrelevant because
an unlicensed person cannot legally dispense vaginal foam
EISENSTADT v. BAIRD 465
438 BURGER, C. J., dissenting
either to married or unmarried persons. This approach
is plainly erroneous and requires the reversal of Baird's
conviction; for on the facts of this case, it deprives us
of knowing whether Baird was in fact convicted for making
a constitutionally protected distribution of Emko to
a married person.
The principle established in Stromberg v. California,
283 U. S. 359 (1931), and consistently adhered to is that
a conviction cannot stand where the "record fail[s] to
prove that the conviction was not founded upon a
theory which could not constitutionally support a verdict."
Street v. New York, 394 U. S. 576, 586 (1969).
To uphold a conviction even "though we cannot know
that it did not rest on the invalid constitutional
ground ... would be to countenance a procedure which
would cause a serious imp&,irment of constitutional
rights." Williams v. North Carolina, 317 U. S. 287, 292
(1942).
Because this case can be disposed of on the basis of
settled constitutional doctrine, I perceive no reason for
reaching the novel constitutional question whether a
State may restrict or forbid the distribution of contraceptives
to the unmarried. Cf. Ashwander v. Tennessee
Valley Authority, 297 U. S. 288, 345-348 (1936)
(Brandeis, J., concurring).
MR. CHIEF JusTICE BuRGER, dissenting.
The judgment of the Supreme Judicial Court of Massachusetts
in sustaining appellee's conviction for dispensing
medicinal material without a license seems eminently
correct to me and I would not disturb it. It is undisputed
that appellee is not a physician or pharmacist and was
prohibited under Massachusetts law from dispensing
contraceptives to anyone, regardless of marital status.
To my mind the validity of this restriction on dispensing
medicinal substances is the only issue before the Court,
466 OCTOBER TERM, 1971
BURGER, C. J., dissenting 405 u. s.
and appellee has no standing to challenge that part of
the statute restricting the persons to whom contraceptives
are available. There is no need to labor this point,
however, for everyone seems to agree that if Massachusetts
has validly required, as a health measure, that all
contraceptives be dispensed by a physician or pursuant
to a physician's prescription, then the statutory distinction
based on marital status has no bearing on this case.
United States v. Raines, 362 U. S. 17, 21 (1960).
The opinion of the Court today brushes aside appellee's
status as an unlicensed layman by concluding that the
Massachusetts Legislature was not really concerned with
the protection of health when it passed this statute. MR.
JUSTICE WHITE acknowledges the. statutory concern with
the protection of health, but finds the restriction on distributors
overly broad because the State has failed to
adduce facts showing the health hazards of the particular
substance dispensed by appellee as distinguished from
other contraceptives. MR. JUSTICE DouGLAs' concurring
opinion does not directly challenge the power of Massachusetts
to prohibit laymen from dispensing contraceptives,
but considers that appellee rather than dispensing
the substance was resorting to a "time-honored
teaching technique" by utilizing a "visual aid" as an adjunct
to his protected speech. I am puzzled by this third
characterizatie>n of the case. If the suggestion is that
appellee was merely displaying the contraceptive material
without relinquishing his ownership of it, then the
argument must be that the prosecution failed to prove
that appellee had "given away" the contraceptive material.
But appellee does not challenge the sufficiency
of the evidence, and himself summarizes the record
as showing that "at the close of his lecture he invited
members of the audience . . . to come and help themselves."
On the other hand, if the concurring opinion
means that the First Amendment protects the distribuEISENSTADT
v. BAIRD 467
438 BURGER, C. J., dissenting
tion of all articles "not dangerous per se" when the distribution
is coupled with some form of speech, then I
must confess that I have misread certain cases in the
area. See, e. g., United States v. O'Brien, 391 U. S. 367,
376 (1968); Cox v. Louisiana, 379 U.S. 536, 555 (1965);
Giboney v. Empire Storage Co., 336 U. S. 490, 502
(1949).
My disagreement with the opinion of the Court and
that of MR. JcsTICE WHITE goes far beyond mere puzzlement,
however, for these opinions seriously invade the
constitutional prerogatives of the States and regrettably
hark back to the heyday of substantive due process.
In affirming appellee's conviction, the highest tribunal
in Massachusetts held that the statutory requirement
that contraceptives be dispensed only through medical
channels served the legitimate interest of the State in
protecting the health of its citizens. The Court today
blithely hurdles this authoritative state pronouncement
and concludes that the statute has no such purpose.
Three basic arguments are advanced: First, since the distribution
of contraceptives was prohibited as a moral
matter in Massachusetts prior to 1966, it is impossible
to believe that the legislature was concerned with health
when it lifted the complete ban but insisted on medical
superv1s1on. I fail to see why the historical predominance
of an unacceptable legislative purpose makes incredible
the emergence of a new and valid one.' See McGowan
1 The Court places some reliance on the opinion of the Supreme
Judicial Court of Massachusetts in Sturgis v. Attorney General, 358
Mass.-, 260 N. E. 2d 687 (1970), to show that§ 21A is intended
to regulate morals rather than public health. In Sturgis the state
court rejected a challenge by a group of physicians to that part of
the statute prohibiting the distribution of contraceptives to unmarried
women. The court accepted the State's interest in "regulating
the private sexual lives of single persons," that interest being expressed
in the restriction on distributees. Id., at - , 260 N. E.
2d, at 690. The purpose of the restriction on distributors was not
m ISSUe.
468 OCTOBER TERM, 1971
BURGER, C. J., dissenting 405 U.S.
v. Maryland, 366 U. S. 420, 445-449 (1961). The second
argument, finding its origin in a dissenting opinion
in the Supreme Judicial Court of Massachusetts, rejects
a health purpose because, "[i]f there is need to have a
physician prescribe ... contraceptives, that need is as
great for unmarried persons as for married persons." 355
Mass. 746, 758, 247 N. E. 2d 574, 581. This argument
confuses the validity of the restriction on distributors with
the validity of the further restriction on distributees, a
part of the statute not properly before the Court. Assuming
the legislature too broadly restricted the class of
persons who could obtain contraceptives, it hardly follows
that it saw no need to protect the health of all persons
to whom they are made available. Third, the Court sees
no health purpose underlying the restriction on distributors
because other state and federal laws regulate
the distribution of harmful drugs. I know of no rule
that all enactments relating to a particular purpose must
be neatly consolidated in one package in the statute books
for, if so, the United States Code will not pass muster.
I am unable to draw any inference as to legislative purpose
from the fact that the restriction on dispensing
contraceptives was not codified with other statutory provisions
regulating the distribution of medicinal substances.
And the existence of nonconflicting, nonpre-emptive federal
laws is simply without significance in judging the
validity or purpose of a state law on the same subject
matter.
It is possible, of course, that some members of the
Massachusetts Legislature desired contraceptives to be
dispensed only through medical channels in order to
minimize their use, rather than to protect the health of
their users, but I do not think it is the proper function
of this Court to dismiss as dubious a state court's explication
of a state statute absent overwhelming and irrefutable
reasons for doing so.
EISENSTADT v. BAIRD 469
438 BURGER, C. J., dissenting
MR. JusTICE WHITE, while acknowledging a valid
legislative purpose of protecting health, concludes that
the State lacks power to regulate the distribution of the
contraceptive involved in this case as a means of protecting
health.2 The opinion grants that appellee's conviction
would be valid if he had given away a potentially
harmful substance, but rejects the State's placing this
particular contraceptive in that category. So far as I
am aware, this Court has never before challenged the
police power of a State to protect the public from the
risks of possibly spurious and deleterious substances sold
within its borders. Moreover, a statutory classification
1s not invalid
"simply because some innocent articles or transactions
may be found within the proscribed class. The
inquiry must be whether, considering the end in view,
the statute passes the bounds of reason and assumes
the character of a merely arbitary fiat." Purity Extract
& Tonic Co. v. Lynch, 226 U.S. 192,204 (1912).
But since the Massachusetts statute seeks to protect
health by regulating contraceptives, the opinion invokes
Griswold v. Connecticut, 381 U. S. 479 (1965), and puts
the statutory classification to an unprecedented test:
either the record must contain evidence supporting the
classification or the health hazards of the particular contraceptive
must be judicially noticeable. This is indeed
a novel constitutional doctrine and not surprisingly no
authority is cited for it.
Since the potential harmfulness of this particular medicinal
substance has never been placed in issue in the
2 The opinion of the Court states in passing that if the restriction
on distributors were in fact intended as a health measure, it would
be overly broad. Since the Court does not develop this argument
in detail, my response is addressed solely to the reasoning in the
opinion of :viR. JUSTICE WHITE, concurring in the result.
470 OCTOBER TERM, 1971
BURGER, C. J., dissenting 405 U.S.
state or federal courts, the State can hardly be faulted
for its failure to build a record on this point. And it
totally mystifies me why, in the absence of some evidence
in the record, the factual underpinnings of the
statutory classification must be "incontrovertible" or a
matter of "common knowledge."
The actual hazards of introducing a particular foreign
substance into the human body are frequently controverted,
and I cannot believe that unanimity of expert
opinion is a prerequisite to a State's exercise of its police
power, no matter what the subject matter of the regulation.
Even assuming no present dispute among medical
authorities, we cannot ignore that it has become
commonplace for a drug or food additive to be universally
regarded as harmless on one day and to be condemned
as perilous on the next. It is inappropriate
for this Court to overrule a legislative classification by
relying on the present consensus among leading authorities.
The commands of the Constitution cannot fluctuate
with the shifting tides of scientific opinion.
Even if it were conclusively established once and for
all that the product dispensed by appellee is not actually
or potentially dangerous in the somatic sense, I would
still be unable to agree that the restriction on dispensing
it falls outside the State's power to regulate in the area
of health. The choice of a means of birth control, although
a highly personal matter, is also a health matter
in a very real sense, and I see nothing arbitrary in a
requirement of medical supervision.3 It is generally
acknowledged that contraceptives vary in degree of effec-
3 For general discussions of the need for medical supervision before
choosing a means of birth control, see Manual of Family Planning
and Contraceptive Practice 47-53 (M. Calderone ed. 1970); Advanced
Concepts in Contraception 22-24 (F. Hoffman & R. Kleinman
ed. 1968).
EISENSTADT v. BAIRD 471
438 BURGER, C. J ., dissenting
tiveness and potential harmfulness.' There may be
compelling health reasons for certain women to choose
the most effective means of birth control available, no
matter how harmless the less effective alternatives.5
Others might be advised not to use a highly effective
means of contraception because of their peculiar susceptibility
to an adverse side effect.0 Moreover, there may
be information known to the medical profession that a
particular brand of contraceptive is to be pref erred or
avoided, or that it has not been adequately tested.
Nonetheless, the concurring opinion would hold, as a
constitutional matter, that a State must allow someone
without medical training the same power to distribute
this medicinal substance as is enjoyed by a physician.
It is revealing, I think, that those portions of the majority
and concurring opinions rejecting the statutory
limitation on distributors rely on no particular provision
of the Constitution. I see nothing in the Fourteenth
Amendment or any other part of the Constitu-
4 See U. S. Commission on Population Growth and the American
Future, Population and the American Future, pt. II, pp. 38-39
(Mar. 16, 1972); Manual of Family Planning, supra, at 268-274,
316, 320. 342, 346; Jaffe, Toward the Reduction of Unwanted Pregnancy,
174 Science 119, 121 (Oct. 8, 1971); G. Hardin, Birth Control
128 (1970); E.Havemann,BirthControl (1967). Theron1raceptive
substance dispensed by appellee, vaginal foam, is thought to be
between 70% and 80% effective. See Jaffe, supra, at 121; Dingle &
Tietze, Comparative Study of Thrl'e Contraceptive Methods, 85
Amrr. ,J. Obst. & Gyn. 1012, 1021 (1963). The birth control pill,
by contrast, is thought to be better than 99% Pfft>etive. S('c Havernann,
Birth Control, supra.
5 See Perkin, Assessment of Reproductive Risk in Kon pregnant
Women-A Guide to Establishing Priorities for Contraceptive Care,
101 Amer. J. Obst. & Gyn. 709 (1968).
6 See Manual of Family Planning, supra, at 301, 332-333, 336-
340.
472 OCTOBER TERM, 1971
BURGER, C. J., dissenting 405 U.S.
tion that even vaguely suggests that these medicinal
forms of contraceptives must be available in the open
market. I do not challenge Griswold v. Connecticut,
supra, despite its tenuous moorings to the text of the
Constitution, but I cannot view it as controlling authority
for this case. The Court was there confronted with
a statute flatly prohibiting the use of contraceptives, not
one regulating their distribution. I simply cannot believe
that the limitation on the class of lawful distributors
has significantly impaired the right to use contraceptives
in Massachusetts. By relying on Griswold in
the present context, the Court has passed beyond the
penumbras of the specific guarantees into the uncircumscribed
area of personal predilections.
The need for dissemination of information on birth
control is not impinged in the slightest by limiting the
distribution of medicinal substances to medical and pharmaceutical
channels as Massachusetts has done by statute.
The appellee has succeeded, it seems, in cloaking
his activities in some new permutation of the First
Amendment although his conviction rests in fact and
law on dispensing a medicinal substance without a license.
I am constrained to suggest that if the Constitution
can be strained to invalidate the Massachusetts
statute underlying appellee's conviction, we could quite
as well employ it for the protection of a "curbstone
quack," reminiscent of the "medicine man)) of times past,
who attracted a crowd of the curious with a soapbox
lecture and then plied them with "free samples" of some
unproved remedy. Massachusetts presumably outlawed
such activities long ago, but today's holding seems
to invite their return.
LOPER v. BETO 473
Syllabus
LOPER v. BETO, CORRECTIONS DIRECTOR, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 70--5388. Argued January 13, 1972-Decided March 22, 1972
For the purpose of impeaching petitioner's credibility, the prosecutor
in petitioner's 1947 rape tria.l was permitted to interrogate
him about his previous criminal record. Petitioner admitted four
felony convictions during the period 1931-1940. He was found
guilty by the jury and was sentenced to a term of 50 years. He
filed a petition for habeas corpus in Federal District Court alleging
that the previous convictions were constitutionally invalid
under Gideon v. Wainwright, 372 U. S. 335, because he had been
denied the assistance of counsel. The District Court denied relief
and the Court of Appeals affirmed, stating that the "fact that
there are possible infirmities in the evidence does not necessarily
raise an issue of constitutional proportions which would require
reversal." Held: The judgment is vacated and the case is remanded
to the Court of Appeals for further proceedings. Pp. 480--
485.
440 F. 2d 934, vacated and remanded.
MR. JusTICE STEWART, joined by MR. JusTICE DouGLAS, MR.
JUSTICE BRENN AN, and J\1R. JUSTICE MARSHALL, concluded that
the use of convictions constitutionally invalid under Gideon v.
Wainwright, supra, to impeach a defendant's credibility deprives
him of due process of law. Pp. 480--483.
MR. JusTICE WHITE concluded that although the Court of Appeals
erred, on remand that court does not necessarily have to set
petitioner's conviction aside. There remain unresolved issues;
whether petitioner was represented by counsel at his earlier trials
and, if not, whether he waived counsel; and the possibility of a
finding of harmless error, all of which should be considered in the
first instance by the lower court. P. 485.
STEWART, J., announced the Court's judgment and delivered an
opinion, in which DoUGLAS, BRENNAN, and MARSHALL, JJ., joined.
WHITE, J., filed an opinion concurring in the result, post, p. 485.
BURGER, C. J., filed a dissenting opinion, in which PowELL, J., joined,
474 OCTOBER TERM, 1971
Opinion of STEWART, J. 405 U.S.
post, p. 485. BLACK:l.rnN, J., filed a di~st>nting opinion, post, p. 494.
REHNQUIST, J., filed a chssenting opinion, in which Bu11m:1t, C. J.,
and BLACKMON and PowELL, JJ., joined, post, p. 497.
John T. Cabaniss, by appointment of the Court, 404
U. S. 954, argued the cause for petitioner. With him
on the brief was Dan G. Matthews.
Robert Darden, Assistant Attorney General of Texas,
argued the cause for respondents. With him on the
brief were Crawford C. Martin, Attorney General, Nola
White, First Assistant Attorney General, Alfred Walker,
Executive Assistant Attorney General, and Robert C.
Flowers, Assistant Attorney General.
MR. JusTICE STEWART announced the judgment of the
Court and an opinion in which MR. JusTICE DOUGLAS,
MR. JusTICE BRENNAN, and MR. JusTICE MARSHALL join.
The petitioner, Otis Loper, was brought to trial in a
Texas criminal court in 1947 upon a charge of statutory
rape. The alleged victim, Loper's 8-year-old stepdaughter,
was the only witness who identified him as
the perpetrator of the crime. The sole witness for the
defense was Loper himself, who testified that he had
not assaulted the victim in any way. For the purpose
of impeaching Loper's credibility, the prosecutor was
permitted on cross-examination to interrogate Loper
about his previous criminal record. In response to this
line of questioning, Loper admitted in damaging detail
to four previous felony convictions during the period
1931-1940, three in Mississippi and one in Tennessee.1
1 "Q. During the past ten years how many times have you been
indicted and convicted in this State or any other State for a felony?
"A. About twice in the past ten years.
"Q. How about on May 7th, 1940, weren't you arrested ...
"MR. LETTS: Your honor, I object to that, as to his being arrested,
as that is not admissible in this case.
[Footnote 1 continued on p. 475]
LOPER v. BETO 475
473 Opinion of STEWART, J.
At the conclusion of the one-day trial the jury found
Loper guilty as charged and sentenced him to a term
of 50 years in prison.
"THE COURT: Well, let him finish the question, Mr. Letts.
"Q. All right, On May 7th, 1940, what were you indicted and convicted
for?
"A. Burglary.
"Q. Where was that?
"A. Carthage, Mississippi.
"Q. What did you get for that?
"A. Five years in the penitentiary.
"Q. On January 15th, 1935, what were you indicted and convicted
for then?
"A. Burglary.
"MR. LETTS: We object, your honor, as that has been over ten
years.
"Q. What were you indicted, tried and convicted for then on January
15th, 1935, in Brushy Mountain Parish, Petros, Tennessee?
"A. Burglary.
"Q. What did you get for that?
"A. Four years.
"Q. How about October 27th, 1931, what
"MR. LETTS: Your honor, we object to that and ask the Court
to instruct the jury not to consider it. That reaches way back to
1931 and the Court knows it would prejudice and inflame the minds
of the jury in this case.
"THE COURT: Objection over-ruled.
"Q. Where were you arrested on November 29th, 1934?
"A. In Chattanooga, Tennessee.
"Q. What about October 27th, 1931, what were you convicted
for in Parchman, Mississippi, then?
"A. Burglary.
"Q. What did you get for that?
"A. Six months, I think.
"Q. There have been so many offenses you have committed that
you can't remember them straight, can you?
"MR. LETTS: We object to that remark, your honor.
"THE COURT: Objection sustained.
[Footnote 1 continued on p. 476]
476 OCTOBER TERM, 1971
Opinion of STEW ART, J. 405 U.S.
Loper initiated the present habeas corpus proceeding
in the United States District Court for the Southern
District of Texas in 1969. He alleged, among other
things, that the previous convictions used to impeach
his credibility at the trial were constitutionally invalid
under Gideon v. Wainwright, 372 U. S. 335, because he
had been denied the assistance of counsel in the Mississippi
and Tennessee courts that had convicted him.2
"Q. It was for burglary in 1931?
"A. Yes.
"Q. Have you always gone by the name of Otis Loper?
"A. Not always.
"Q. What other names have you gone by?
"A. Milton Cummings.
"Q. That was in Mississippi, wasn't it?
"A. Yes sir.
"Q. What were you indicted and tried for on that case in Mississippi
in 1932?
"A. Burglary.
"Q. How much time did you get on that conviction?
"A. Two years.
"Q. And that was under the name of Milton Cummings?
"A. Yes.
"Q. And that is 4 times that you have been convicted of burglary,
a felony?
"A. Yes.
"MR. DUGGAN: That's all, no more questions."
2 Loper's petition was originally dismissed by the District Court,
but the Court of Appeals vacated the dismissal and remanded for
an evidentiary hearing on the question whether Loper had been
deprived of his right to appeal from the Texas judgment of conviction.
383 F. 2d 400. On remand, the District Judge, noting that
Loper had filed numerous habeas corpus petitions over a period of 20
years, appointed counsel to represent Loper and directed him to
raise any points that "conceivably might be raised in his behalf," in
order that a single evidentiary hearing could serve to put an end
to postconviction litigation in Loper's case. Loper, with the assistance
of counsel, then advanced six claims, and the evidentiary hearing
was directed to resolving all six contentions. The claim at issue
here had not been raised in any of Loper's previous petitions.
LOPER v, BETO 477
473 Opinion of STEWART, J,
His sworn testimony at the habeas corpus hearing confirmed
these allegations.3 In addition, he produced court
3 "Q. Were you convicted in 1931 of burglary in Scott County,
Mississippi?
"A. Yes, sir.
"Q. How old were you at this time?
"A. I don't remember, but I believe I was around 17 years, something
around that age. I'm not for sure.
"Q. Were you represented by an attorney in connection with that
proceeding?
"A. No, sir, I didn't have an attorney.
"Q. Were you advised that you had a right to an attorney whether
you could afford one or not?
"A. No, sir.
"Q. Did you know that you were entitled to one whether you could
afford one or not?
"A. No, sir.
"Q. Did you inform the court that you did not want to be represented
by an attorney?
"A. No, sir.
"Q. Were you convicted in that proceeding?
"A. Yes, sir.
"Q. Were you convicted, Mr. Loper, of burglary in 1940 in Leake
County, Mississippi?
"A. Yes, sir.
"Q. How old were you at the time that occurred?
"A. I believe I was about 25 or 26, I don't remember for sure.
"Q. Let me ask you one more question about that Scott County,
Mississippi, conviction. Did you plead guilty or not guilty?
"A. I plead guilty.
"Q. Were you sentenced to a term in prison?
"A. Yes, sir.
"Q. All right, sir. Now, in connection with the 1940 conviction,
were you represented by an attorney?
"A. No, sir.
"Q. At any stage of the proceedings?
"A. No, sir.
"Q. Were you advised that you had a right to an attorney whether
you could afford one or not?
[Footnote 3 continued on p. 478]
478 OCTOBER TERM, 1971
Opinion of STEW ART, J. 405 U.S.
records to corroborate this testimony.4 The District
Court denied habeas corpus relief, placing "little or no
credence" in Loper's testimony, and holding that in any
event "the question does not rise to constitutional stature
and is not subject to collateral attack." 5
On appeal, the Court of Appeals for the Fifth Circuit
"A. No, sir.
"Q. Could you in fact afford one?
"A. I don't believe I could have then.
"Q. What about 1931, the conviction in Scott County, Mississippi,
could you have afforded an attorney?
"A. I couldn't have, no, sir.
''Q. Did you know in connection with the 1940 proceeding that
you were entitled to be represented by counsel whether you could
afford it or not?
"A. No, sir.
"Q. Did you inform the court that you did not want to be represented
by an attorney?
"A. No, sir.
"Q. Was the 1940 proceeding in Leake County, Mississippi, did
you plead guilty or not guilty?
"A. Not guilty.
"Q. Was a trial held?
"A. Yes, sir.
"Q. Who conducted the defense in that trial?
"A. Well, there wasn't anybody. I just didn't know what to ask
the people. I didn't know anything about how to.
"Q. Did you conduct your own trial?
"A. As far as it was conducted, yes, sir.
"Q. Why did you attempt to do so yourself?
"A. Well, I didn't have an attorney, and nobody to help me. I
didn't want to plead guilty to it."
4 A certified record of the 1940 proceeding in Leake County,
Mississippi, recited that Loper appeared "in his own proper person."
A certified copy of the 1935 proceeding in Hamilton County, Tennessee,
recited that Loper appeared "in person." A certified copy
of the 1931 proceeding in Scott County, Mississippi, recited simply
that Loper and his codefendants "entered pleas of guilty, as charged
in the indictment." No record was introduced of the 1932 conviction
in Mississippi.
5 The memorandum and order of the District Court are unrrporte<l.
LOPER v. BETO 479
473 Opinion of S'I'Ew ART, J.
affirmed the judgment of the District Court. Although
recognizing "the force of Loper's argument to the effect
that such convictions may have impaired his credibility
in the minds of the jury as a witness in his own behalf,"
the appellate court held that "the use of such convictions
as evidence for purposes of impeachment which
goes only to credibility, is not nearly so serious as the
use of a conviction for enhancement, which may add years
of imprisonment to the sentence of a defendant . . . .
The issue presented raises an evidentiary question. The
fact that there are possible infirmities in the evidence
does not necessarily raise an issue of constitutional proportions
which would require reversal." 440 F. 2d 934,
937.6
6 A dissenting opm10n, post, at S02, implies that the District
Court found that the petitioner did not meet his burden of proving
that he had not waived his right to counsel in the Mississippi and
Tennessee courts. But no such finding appears in the record. The
District Court did say that "there is no evidence other than petitioner's
own statement that he was not represented by counsel at
the time of his prior convictions, which evidence, as stated above,
I decline to accept as credible." (Emphasis added.) This statement
is wholly incorrect, for Loper did introduce documentary evidence
to corroborate his testimony that he had not been represented
by counsel on at least two of his prior convictions. See n. 4, supra.
Nowhere in the District Court's opinion is there any finding of fact
as to whether Loper might have waived counsel. And the fact that
the challenged convictions occurred at a time when, under our
decisions, state courts were under no constitutional obligation to
provide lawyers to indigent defendants in all felony cases, would
make any such finding highly unrealistic, in the face of the documentary
evidence and the petitioner's uncontradicted testimony.
For, at the time of the petitioner's previous convictions, there was
no known constitutional right to be "waived."
Moreover, the judgment that we review today is not that of the
District Court., but of the Court of Appeals. That court stated:
"The convictions mentioned have been of record for a number of
years, yet the record before us does not disclose that any attack
has ever been made upon those convictions. Except for the assertions
of Loper the record fails to furnish any conclusive information
480 OCTOBER TERM, 1971
Opinion of STEW ART, J. 405 U.S.
We limited our grant of certiorari to a single constitutional
question, worded as follows in the petition
for certiorari: Does the use of prior, void convictions
for impeachment purposes deprive a criminal defendant
of due process of law where their use might well have
influenced the outcome of the case? 404 U. S. 821.
This is a recurring question that has received conflicting
answers in the United States Courts of Appeals.7 It is
a question that has also divided state appellate courts.8
as to the facts and circumstances surrounding his former convictions.
So far as the record before us reveals, there are outstanding, unchallenged,
state court convictions of felonies in the States of Mississippi
and Tennessee. . . . [l]f the convictions possessed the infirmities
which Loper claims, he has failed to make any effort to set them
aside for over '30 years. No one else could have done so. Surely
such an attack was available to him in view of the retroactive application
of the Gideon decision which was decided over six years prior
to the hearing under review." 440 F. 2d, at 937.
But despite these observations, the Court of Appeals, perhaps recognizing
the error in the statement of the District Court quoted above,
did not rest its decision on a finding that the petitioner had failed
to meet his burden of proving the invalidity of the prior convictions.
It reached the merits of the legal question involved, and we granted
certiorari to review that decision. There is thus no basis in the record
upon which we may either dismiss this case or affirm the decision
below on the ground that the petitioner did not meet his
burden of proving that the prior convictions were invalid. See
Burgett v. Texas, 389 U. S. 109, 114-115; Losieau v. Sigler, 406 F.
2d 795, 803; Williams v. Coiner, 392 F. 2d 210, 212-213.
The dissenting opinion relies upon our decision last Term in Kitchens
v. Smith, 401 U. S. 847. Yet we held in that case that the
petitioner on collateral review had sufficiently "proved he was without
counsel due to indigency at the time of his [1944] conviction,"
even though, unlike the present case, the petitioner ''introduced no
evidence other than his own testimony." Id., at 849.
7 Compare the decisions in this case and in Walker v. Follette, 443
F. 2d 167 (CA2 1971), with Gilday v. Scafati, 428 F. 2d 1027 (CAl
1970); Tucker v. United States, 431 F. 2d 1292 (CA9 1970); and
Howard v. Craven, 446 F. 2d 586 (CA9 1971).
8 Simmons v. State, 456 S. W. 2d 66 (Ct. Crim. App. Tex. 1970),
holds that prior convictions obtained without the benefit of counsel
LOPER v. BETO 481
473 Opinion of STEWART, J.
The starting point in considering this question is, of
course, Gideon v. Wainwright, 372 U. S. 335. In that
case the Court unanimously announced a clear and simple
constitutional rule: In the absence of waiver, a felony
conviction is invalid if it was obtained in a court that
denied the defendant the help of a lawyer."
The Court dealt with a sequel to Gideon in Burgett
v. Texas, 389 U. S. 109. There a Texas indictment
charging the petitioner with assault contained allegations
of previous felony convictions, that, if proved, would
have increased the punishment for assault under the
state recidivist statutes. The indictment was read to
the jury at the beginning of the trial. Records of two
of the previous convictions were offered in evidence during
the course of the trial, and it appeared that at least
one of these convictions had been obtained in violation
of Gideon. In reversing the Texas judgment, the Court
said:
"To permit a conviction obtained in violation of
Gideon v. Wainwright to be used against a person
either to support guilt or enhance punishment for
another offense . . . is to erode the principle of
that case. Worse yet, since the defect in the prior
conviction was denial of the right to counsel, the
accused in effect suffers anew from the deprivation
of that ... right." 389 U. S., at 115.
Earlier this Term we had before us a case in which
it appeared that previous convictions obtained in violamay
nevertheless be used for the purpose of impearhment. Most
reported state decisions, however, hold the contrary. See Spaulding
v. State, 481 P. 2d 389 (Alaska 1971); In re Dabney, 71 Cal.
2d 1, 452 P. 2d 924 (1969); Johnson v. State, 9 Md. App 166,
263 A. 2d 232 (1970); White v. State, 11 Md. App. 423, 274 A. 2d
671 (1971); Subilosky v. Commonwealth, - Mass. - , 265 N. E.
2d 80 (1970) (semble).
9 This constitutional rule is wholly retroactive. Pickelsimer v.
Wainwright, 375 U.S. 2; Kitchens v. Smith, 401 U.S. 847.
482 OCTOBER TERM, 1971
Opinion of STEWART, J. 405 U.S.
tion of Gideon had played a part in the determination
of the length of a convicted defendant's prison sentence.
United States v. Tucker, 404 U.S. 443. We there ruled
that the Court of Appeals for the Ninth Circuit had
been correct in holding that the teaching of Burgett required
a remand of the case to the trial court for
resentencing.
The Tucker case involved only that aspect of Burgett
that prohibits the use of invalid prior convictions to
"enhance punishment." The case now before us involves
the use of such convictions "to support guilt." 10
For the issue of innocence or guilt in this case turned
entirely on whether the jury would believe the testimony
of an 8-year-old girl or that of Loper. And the sole
purpose for which the prior convictions were permitted
to be used was to destroy the credibility of Loper's testimony
in the eyes of the jury.11
10 Under Texas law at the time, the jury, upon finding Loper
guilty, was authorized in its absolute and unreviewable discretion
to impose any punishment from five years in prison to death in the
electric chair. Texas Pen. Code, Art. 1189 (1948). Thus, bringing
the prior convictions to the attention of the jury may well also have
served to enhance Loper's punishment.
11 This is not a case where the record of a prior conviction was
used for the purpose of directly rebutting a specific false statement
made from the witness stand. Cf. Walker v. Follette, 443 F. 2d 167,
and see Harris v. New York, 401 U.S. 222; Walder v. United States,
347 U. S. 62. The previous convictions were used, rather, simply
in an effort to convict Loper by blaokening his character and thus
damaging his general credibility in the eyes of the jury.
That a record of prior convictions may actually do more than
simply impeach a defendant's credibility has been often noted. See,
e. g., C. McCormick, Evidence § 43, p. 93 (1954):
"The sharpest and most prejudicial impact of the practice of impeachment
by conviction ... is upon one particular type of witness,
namely, the accused in a criminal case who elects to take the stand.
If the accused is forced to admit that he has a 'record' of past convictions,
particularly if they are for crimes similar to the one on
LOPER v. BETO 483
473 Opinion of STEWART, J.
Unless Burgett is to be forsaken, the conclusion is
inescapable that the use of convictions constitutionally
invalid under Gideon v. Wainwright to impeach a defendant's
credibility deprives him of due process of law.12
We can put the matter no better than in the words of
the Court of Appeals for the First Circuit:
"We conclude that the Burgett rule against use
of uncounseled convictions 'to prove guilt' was intended
to prohibit their use 'to impeach credibility,'
for the obvious purpose and likely effect of impeaching
the defendant's credibility is to imply, if
not prove, guilt. Even if such prohibition was not
originally contemplated, we fail to discern any distinction
which would allow such invalid convictions
to be used to impeach credibility. The absence
of counsel impairs the reliability of such convictions
just as much when used to impeach as when
used as direct proof of guilt." Gilday v. Scafati,
428 F. 2d 1027, 1029.
A dissenting opinion filed today suggests that our
decision presses the "sound doctrine of retroactivity
beyond the outer limits of its logic." On the contrary,
our decision in this case follows directly from the rationale
under which Gideon v. Wainwright, supra, was given
retroactive application. We have said that the principle
trial, the danger is obvious that the jury, despite instructions, will
give more heed to the past convictions as evidence that the accused
is the kind of man who would commit the crime on charge, or
even that he ought to be put away without too much concern with
present guilt, than they will to its legitimate bearing on credibility."
12 In the circumstances of this case there is little room for a finding
of harmless error, if, as appears on the record now before us,
Loper was unrepresented by counsel and did not waive counsel at
the time of the earlier convictions. CL Subilosky v. Moore, 443
F. 2d 334; Tucker v. United States, 431 F. 2d 1292; Gilday v.
Scafati, 428 F. 2d 1027.
484 OCTOBER TERM, 1971
Opinion of STEW ART, J. 405 U.S.
established in Gideon goes to "the very integrity of the
fact-finding process" in criminal trials, and that a conviction
obtained after a trial in which the defendant
was denied the assistance of a lawyer "lacked reliability."
Linkletter v. Walker, 381 U.S. 618,639 and n. 20. Loper
has "suffered anew" from this unconstitutional deprivation,
Burgett v. Texas, supra, regardless of whether the
prior convictions were used to impeach him before or
after the Gideon decision. It would surely be unreasonable,
as one dissenting opinion suggests, to expect the
judge at Loper's trial to have anticipated Gideon, just
as it would have been unreasonable to have expected
the judge at Gideon's trial to have foreseen our later
decision in that case. But a neces.sary result of applying
any decision retroactively is to invalidate rulings made
by trial judges that were correct under the law prevailing
at the time the judges made them.1
" If the retroactivity
of Gideon is "sound," then this case cannot be
decided under the ill-starred and discredited doctrine of
Betts v. Brady, 316 U. S. 455.
The judgment before us is set aside, and the case is
remanded to the Court of Appeals for further proceedings
consistent with this opinion.
It is so ordered.
13 Thf reasoning of that dissenting opinion would dictate that the
rule in Burgett must not be given retroactive application, at least
to cases where the sentence was imposed prior to Gideon. Yet, by
our disposition of Bates v. Nelson, 393 U. S. 16, where we vacated
and remanded in light of Burgett a denial of habeas corpus following
a. 1957 conviction, we indicated that Burgett is retroactive in
its application without regard to whether the use of the prior
convictions was made prior to or after Gideon. Every federal court
that has considered the question has held Burgett retroactive,
and none has made the distinction suggested by the dissenting
opinion. See, e.g., Walker v. Follette, 443 F. 2d 167 (CA2 1971);
Losieau v. Sigler, 406 F. 2d 795 (CA8 1969); Tucker v. Craven, 421
F. 2d 139 (CA9 1970); Oswald v. Crouse, 420 F. 2d 373 (CAIO 1969).
LOPER v. BETO 485
473 BURGER, C. J ., dissenting
MR. JusTICE WHITE, concurring in the result.
The Court of Appeals affirmed the denial of Loper's
petition for habeas corpus, reasoning that the use of
invalid prior convictions to impeach a defendant in a
criminal case does not raise an issue of constitutional
proportions even though so using those convictions might
well have influenced the outcome of the case. It was on
that issue that we granted certiorari; and as our past
cases now stand, I agree with MR. JusTICE STEWART that
the Court of Appeals' reasons for affirming the District
Court were erroneous. This judgment, however, does
not necessarily mean that Loper's conviction must be set
aside. There remain issues, unresolved by the Court of
Appeals, as to whether the challenged prior convictions
were legally infirm: was Loper represented by counsel at
the time of the earlier convictions; if not, did he waive
counsel? These matters are best considered in the first
instance by the Court of Appeals. The same is true with
respect to the legal significance of the lack of proof with
respect to the validity of one or more of the prior convictions
used for impeachment purposes at Loper's trial.
In this connection, I do not understand our prior decisions
to hold that there is no room in cases such as this
for a finding of harmless error; and if this case is ultimately
to turn on whether there was harmless error or
not, I would prefer to have the initial judgment of the
lower court.
MR. CHIEF JusTICE BURGER, with whom MR. JUSTICE
POWELL joins, dissenting.
In 1942 this Court, in deciding Betts v. Brady, 316
U. S. 455, held that the Due Process Clause of the
Fourteenth Amendment did not call for the setting aside
of a robbery conviction that had been entered against
an indigent defendant whose request for appointed coun486
OCTOBER TERM, 1971
BURGER, C. J ., dissenting 405 U.S.
sel had been denied by the state trial court. Betts was
overruled in 1963 by Gideon v. Wainwright, 372 U. S.
335. Loper's trial for rape was held five years after
Betts and 16 years before Gideon. Yet the Court today
holds that an error of constitutional magnitude occurred
when the judge presiding at Loper's trial failed to make,
on his own motion, an evidentiary ruling that would
have been inconsistent both with state law and with
the United States Constitution as then explicitly interpreted
by this Court. I dissent.
(1)
Three witnesses were called at Loper's 1947 trial. His
eight-year-old stepdaughter testified that Loper raped
her on August 9, 1947. A physician gave testimony corroborating
that the child had been raped. Loper himself
denied having committed the act, but admitted that
there was a period of time during the day in question
when he was at home alone with his stepdaughter and
his four-month-old baby boy; he further admitted on
cross-examination that his stepdaughter was, as far as
he knew, a truthful child.
Under further cross-examination, Loper admitted to
four prior burglary convictions entered against him m
1931, 1932, 1935, and 1940, respectively. At the 1969
habeas corpus proceeding here under review, Loper introduced
court records relating to three of these burglary
convictions and gave testimony relating to two of those
three. The evidence presented to the District Court
with respect to the four convictions may be summarized
as follows:
(a) The court records for the 1931 conviction
indicated only that Loper pleaded guilty upon being
arraigned and that a six-month sentence was imposed
nine days later. Loper testified before the
District Court that he was not represented by an
473
LOPER v. BETO 487
BURGER, C. J., dissenting
attorney in connection with these 1931 proceedings;
that he could not then have afforded private counsel;
and that he never informed the trial court that
he did not want to be represented by counsel.
(b) Loper introduced no court record and gave
no testimony at all with respect to his 1932
conviction.
(c) Loper gave no testimony with respect to his
1935 conviction, but the court record of that conviction
appears on its face to suggest that he was
represented by counsel: "Came the Attorney General
and the defendant in person, and this case was
tried ... before the Court and the ... jury ...
[ whose members,] having heard the proof, arguments
of Counsel and the charge of the Court[,]
on oath say defendant is guilty .... " (Emphasis
added.)
(d) The court record of Loper's 1940 conviction
recited that Loper appeared "in his own proper person."
Loper testified before the District Court that
he did not have counsel at his 1940 trial; that he
did not "believe" he could then have afforded private
counsel; and that he never informed the state court
that he did not want to be represented by counsel.
Even if we, unlike the District Court,1 treat as absolutely
true everything to which Loper testified at the
habeas corpus hearing, there is no basis on which we
can conclude that he was not represented by counsel in
the proceedings leading to his 1932 and 1935 convictions.
With respect to the 1940 conviction, it surely cannot
be said that Loper, through his testimony that he does
1 The District Court, aft('r observing Loper and hearing him
testify, stated that '·petitioner has made false statements under oath,
and has testified to a set of facts so roundly and thoroughly shown
to be false by unimpeachable evidence that little or no credence may
be placed in his own te8timony .... "
488 OCTOBER TERM, 1971
BURGER, C. J ., dissenting 405 U.S.
not now "believe" that he then could have afforded private
counsel, met his "burden of proving his inability
at that time to hire an attorney." Kitchens v. Smith,
401 U. S. 847, 848 (1971). There is no basis, then,
for a retroactive application of Gideon v. Wainwright
to bring into question the validity of his 1940 burglary
conviction.
It thus appears that of the four convictions introduced
to impeach Loper's credibility at his 1947 rape trial,
only the burglary conviction of 1931-a conviction entered
upon Loper's plea of guilty-can reasonably be
found on this record to have been even arguably invalid
under Gideon.
(2)
When a defendant in a criminal trial elects to testify
on his own behalf, he asks the jury, in effect, to believe
his testimony rather than any conflicting testimony introduced
by the prosecution. He presents himself to
the jury as a person worthy of belief. In so doing, he
brings into issue his credibility as a witness, and he
thereby exposes himself to possible cross-examination
designed to impeach that credibility. Such cross-examination
is limited by state rules of evidence, of course,
to matters which are relevant to credibility and which
are not, at the same time, so prejudicial to the defendant
that they must be excluded despite their relevance.
Each State's rules governing such cross-examination
reflect a balance that has been struck by that State
in weighing, with respect to a given category of evidence,
its probative value for impeachment purposes
against the prejudicial effect it might have upon the
jury's determination of the defendant's guilt or innocence
of the crime charged. 2
2 Cf. Michelson v. United States, 335 U. S. 469 (1948), where this
Court was called upon to strike a somewhat similar balance with
respect to cross-examination designed to impeach the credibility of
LOPER v. BETO 489
473 BURGER, C. J., dissenting
The plurality opinion concludes that the Due Process
Clause was violated if one or more of the prior convictions
used to impeach Loper's credibility, even though
fully valid under Betts v. Brady-the prevailing law
when Loper was tried in 1947-was rendered constitutionally
infirm by Gideon. The plurality opinion does
not make clear, however, whether evidence of any such
convictions is considered to be so lacking in probative
value as to violate due process or to be so prejudicial
as to do so. If its conclusion were grounded solely on
a consideration of undue prejudice, the rationale underlying
today's decision would be elusive indeed. There
is no suggestion in the record that the jury might
have failed to follow the instructions given by the
trial judge that consideration of these prior convictions
was to be restricted solely to the issue of Loper's credibility.
Nor can any plausible contention be made that
a jury has more difficulty following such instructions
when it is dealing with an uncounseled conviction than
when it is dealing with a counseled one.
It must be, then, that the conclusion of the plurality
opinion is baEed upon the view that it is fundamentally
unfair for a jury to be allowed to treat an uncoum:eled
conviction, introduced to impeach a defendant, as though
it had the probative value of a counseled conviction.
Under this view, jurors who are told of a prior uncounseled
conviction are misled in regard to a matter of fact;
character witnesses who claim to be familiar with a defendant's
reputation in the community. The Court held that when a defendant
in a federal trial puts his character in evidence by calling such
witnesses, the government may cross-examine those witnesses to
determine whether they are aware of any prior arrests that may be
on the defendant's record and that may consequently have affected
his reputation. The Court reasoned that, despite the possibility of
prejudice, "[tJo hold otherwise would give defendant the benefit of
testimony that he was honest and law-abiding in reputation when
such might not be the fact .... " Id., at 484 (emphasis added).
490 OCTOBER TERM, 1971
BuRGER, C. J., dissenting 405 U.S.
i. e., by being told merely that the defendant was in fact
previously convicted of a felony, they are misled into
believing that he was duly convicted when, under a
retroactive application of Gideon, he in fact was not duly
convicted. I cannot agree that such a view justifies a
finding here that it was fundamentally unfair of the trial
judge at Loper's 1947 rape trial to fail to make an evidentiary
ruling, on his own motion, that he could have
justified only by anticipating by 16 years this Court's
overruling of Betts v. Brady in 1963. Not even the
wisest member of this Court could have hazarded that
prediction in 1947.
The plurality opinion, of course, does not analyze the
case in these terms. It merely concludes, under a rigidly
mechanistic approach, that since this Court held in
Gideon that an uncounseled felony conviction calls for
a new trial with counsel, we are compelled to strike
down a fully counseled pre-Gideon conviction obtained
through a trial in which evidence of one or more prior
uncounseled convictions was collaterally used. This, of
course, gives Gideon a collateral consequence of wholly
unrealistic dimensions that are unrelated to basic fairness
or due process; it is an effort to "unring the bell"
on a series of burglary convictions dating back to a
period 41 years ago. Parenthetically, I note that Loper
nowhere denies that he committed these burglaries.
We all agree that the convictions used to impeach
Loper's credibility during the 1947 trial were valid under
the law prevailing at that time. The jury at Loper's
1947 trial cannot, therefore, be said to have been misled
in regard to any contemporaneous matter of fact. Nor
can it be said, without distorting the doctrine of retroactivity
beyond all semblance of rationality and common
sense, that the prosecutor or the presiding judge at
Loper's rape trial acted in violation of the principle of
"fundamental fairness." If Loper's trial was "fundaLOPER
v. BETO 491
473 BURGER, C . .J., dissenting
mentally fair" when it was conducted, how can it be
said to have undergone a metamorphosis because-16
years later and for another purpose-the law changed?
When we held that Gideon is retroactive, \Ve meant
that Gideon applies to an uncounseled felony conviction
obtained in the past and renders that conviction invalid
for all future purposes, i. e., it renders unlawful the
continuation into the future of the convicted prisoner's
incarceration unless a new trial is had. Gideon does not,
however, render such a conviction retroactively invalid
for all purposes to which it may have already been put
in the past. The Court, in giving such an enlarged
effect to Gideon, plows new ground, disregarding the
implications that will surely follow from the broadening
of scope it now gives to the doctrine of retroactivity.
For there must be many convictions that ,011ill be senselessly
rendered vulnerable to attack by today's holding.
The Court applies the doctrine of retroactivity as
though it required us to assess the fairness of past
judicial proceedings without making any distinctions between
a decision that was rendered after those proceedings
and given retroactive effect, and a decision that
was rendered before those proceedings; the Court thus
seems to view the doctrine of retroactivity as requiring us
to judge the fairness of Loper's 1947 rape trial as though
that trial followed Gideon. Had the trial indeed followed
Gideon, and had the trial judge permitted the
prosecution to use prior uncounseled convictions to impeach
Loper, then it might well be said that the judge
denied fundamental fairness to Loper in refusing to
follow the clear teaching of a decision of this Court
and in thereby "erod [ing] the principle" of that
decision. Burgett v. Texas, 389 U. S. 109, 115 (1967).
We are, however, presented with no such situation here.
The judge at Loper's trial did not refuse to follow any
decision of this Court. Indeed, had he made the ruling
492 OCTOBER TERM, 1971
BURGER, C ..J ., dissenting 405 u. s.
that the Court today implicitly holds he was required
to make, he would have been very specifically refusing
thereby to follow this Court's then-controlling decision
in Betts v. Brady.
The plurality opinion states that "[i]f the retroactivity
of Gideon is 'sound,' then this case cannot be decided
under the ill-starred and discredited doctrine of Betts v.
Brady .... " If we are precise, of course, this case
is not to be "decided under" either Betts or Gideon, for
it raises an entirely different question from that which
the Court faced in those two cases. Both Betts and
Gideon dealt with the substantive right to counsel in a
state felony trial. The instant case deals with the
collaterally related, but altogether different, question of
the fundamental fairness of an implied evidentiary ruling
made long before Gideon. The failure of the plurality
opinion to recognize this simple, albeit crucial, distinction
unfortunately prevents the drawing of a rational
line that would preserve all the values of both Gideon
and Burgett without at the same time producing the
extravagant result reached by the Court today.
The introduction, in good faith and without objection,
of lawfully admissible evidence, the truth of which is not
presently subject to challenge, can hardly be called a
violation of due process. Nor will such a violation arise
retroactively by the occurrence of later events that may
give grounds for challenging the truth of that evidence.
Cf. Townsend v. Sain, 372 U.S. 293, 317 (1963): "[T]he
existence merely of newly discovered evidence relevant to
the guilt of a state prisoner is not a ground for relief on
federal habeas corpus." In 1947, Loper's prior burglary
convictions, viewed as matters of evidentiary fact in the
light of this Court's then-recent decision in Betts v.
Brady, were valid convictions. Being valid in 1947, they
were then admissible in evidence to impeach Loper's
credibility. This Court's decision in Gideon 16 years
LOPER v. BETO 493
473 BURGER, C. J ., dissenting
later may have rendered one or more of those convictions
vulnerable to attack and not usable for future evidentiary
or other purposes. Bearing in mind, however, that those
burglary convictions were nothing but matters of evidentiary
fact for the purposes of Loper's 1947 rape trial,
any subsequently discovered invalidity in one of those
burglary convictions no more rendered the conduct of
Loper's rape trial fundamentally unfair than would the
subsequent discovery of new evidence tending, for example,
to discredit the testimony of a prosecution witness
who was questioned in good faith by the State. The
holding in Gideon that uncounseled convictions are constitutionally
invalid properly leads us to require new
trials to sustain any further confinement of persons
previously convicted without counsel. But where prior
uncounseled convictions were used in a pre-Gideon trial
solely for evidentiary purposes to impeach the defendant,
the logic of the rule enunciated in Townsend v. Sain,
supra, counsels that we should treat Gideon for what it
is in this context, i. e., a decision whose effect on the prior
impeaching convictions is properly analogized to the
discovery of new evidence. Neither fundamental fairness
nor any specific constitutional provision requires
that a rule of evidence be made retroactive; consideration
for the orderly administration of justice dictates the
contrary.
Burgett v. Texas, supra, on which the plurality opinion
relies, should not be read either to require or to justify
today's decision. Burgett dealt with a post-Gideon trial
and established that it is a violation of due process to
introduce against a defendant evidence of a prior conviction
known at the time of its introduction to be
constitutionally infirm under existing law. In regard to
Loper's case, the worst that can be said is that 16
years after his trial there was an event-the decision
in Gideon~ that, had it pre-dated rather than post494
OCTOBER TERM, 1971
BLACKMUN, J., dissenting 405 U.S.
dated the trial, would have affected an evidentiary ruling
by the trial judge.
The rule implicit in the result reached by the Court
today does violence both to common sense and to society's
interest in the finality of judgments. Only if trial judges
were soothsayers could they adhere to it. For under that
rule, a prior conviction, admissible for impeachment purposes
under state law and fully valid under the Constitution
as explicitly interpreted by this Court at the time
the conviction is sought to be introduced, becomes retroactively
inadmissible if, years after the trial, a decision of
this Court renders that prior conviction constitutionally
infirm. With all respect, I submit that the United States
Constitution does not give this Court the power to impose
upon the States any such unmanageable and abstractly
based rule as that. Indeed, such a rule is repugnant to
the concept of federalism and to the very notions of
reasonableness and orderliness embodied in the Due
Process Clause. It is a distressing example of pressing
the sound doctrine of retroactivity beyond the outer
limits of its logic.
If Burgett does. indeed, mean what the plurality opinion
reads into it, we should overrule that decision without
delay. As Mr. Justice Harlan, for himself, Mr. Justice
Black and MR. JUSTICE WHITE, observed, "\Ve do not
sit as a court of errors and appeals in state cases .... "
389 U. S., at 120.
MR. JUSTICE BLACKMUN, dissenting.
The plurality in this case applies Burgett v. Texas, 389
U. S. 109 ( 1967), and, seemingly, United States v. Tucker,
404 U. S. 443 ( 1972), to proscribe the use of allegedly
uncounseled prior convictions of many years ago for the
purpose of impeaching the defendant who takes the stand
in his own defense. Burgett may be claimed to be a
natural succeeding step to Gideon v. Wainwright, 372
LOPER v. BETO 495
473 BLAcKMUN, J .1 dissenting
U. S. 335 (1963), but its application to Loper's case has
aspects, not particularly stressed by the plurality, that are
troublesome for me:
1. The resolution of the original statutory rape case
came down to a choice, on the part of the jury, between
the testimony of the eight-year-old victim and the testimony
of Loper. This, of course, is not uncommon in a
rape case, but it always provides an element of unsureness.
It is the woman's--or the child's-word against
the man's. Hanging in the balance is a penalty of great
severity. The 50-year sentence imposed on Loper is
illustrative and is a tempting target for a reviewing court.
2. Obviously, the Court's familiar remand "for further
proceedings consistent with this opinion" is really meaningless
in this case. Certainly it does not carry with it
the usual meaning and implications. The incident that
is the subject of the criminal charge took place 25 years
ago. The victim, then eight years old, is now about 33.
I suspect that an event which would be vivid at the time
for a child has faded, mercifully, in the victim's memory.
Retrial, if not impossible, is highly unlikely. The Court's
remand therefore actually translates into an enforced
state arquittal and release for Loper.
3. The plurality's reliance upon Loper's testimony at
the habeas hearings and upon certified records of Mississippi
and Tennessee proceedings is not complete. Perhaps
the records of the 1931 and 1940 proceedings could be said
to support an implication that Loper was not represented
by counsel in those cases. But no record at all of the
1932 Mississippi proceeding was presented. And the 1935
recital that Loper appeared "in person" is no more than
the customary recital, if properly drawn, for any criminal
proceeding when counsel is , in fact, present. As the plurality's
footnote 3 reveals, Loper testified as to the absence
of counsel at only the 1931 and 1940 proceedings. He
said nothing with respect to the 1932 and 1935 proceed496
OCTOBER TERM, 1971
BLACKMUN, J., dissenting 405 U.S.
ings. Thus, for me, the 1932 and 1935 prior convictions
stand effectively unchallenged on this record. Surely,
as to them, Loper has not sustained his burden of proof.
4. I have more than a mild suspicion that as a practical
matter the outcome of the case would have been
exactly the same had the priors not been used to impeach
Loper's credibility. Yet their use was legally accepted
25 years ago. That use, now held improper by the Court,
destroys the conviction irretrievably.
5. Loper's troubles with the law did not cease with his
statutory rape conviction in 1947. As the opinion of the
Court of Appeals reveals, 440 F. 2d 934, 936, Loper was
on parole in 1963 when he was arrested for car theft in
Mississippi. While a parole revocation order was awaiting
execution, he escaped and was a fugitive for more
than a year.
6. I see no need to recede from Burgett v. Texas at this
time, but its application to the circumstances of Loper's
case gives me the impression that what appears to be an
acceptable principle can be run into the ground when
indiscriminately applied. Here again, by impractical
application, the plurality has painted itself into a corner.
Here again, some realism is needed. See United States
v. Tucker, 404 U.S., at 452 (BLACKMUN, J., dissenting).
We were advised at oral argument that Loper once
more is on parole and is working in Texas.* Thus, assuming
he behaves himself or, to put it more formally,
that he does not violate his parole, the plurality's decision,
however it were to go, would not have much effect
upon his present freedom. On balance, I feel that THE
CHIEF JUSTICE and MR. JusTICE REHNQUIST, in dissent,
have the better of the argument, and certainly the
stronger position in the light of the practicalities. I
therefore also dissent.
*Tr. of Oral Arg. 27, 31-32.
LOPER v. BETO 497
473 REHNQUIST, J., dissenting
MR. JusTICE REHNQUIST, with whom THE CHIEF
JUSTICE, MR. J usTICE BLACKMUN, and MR. JUSTICE
PowELL join, dissenting.
In reversing the judgment of the Court of Appeals,
which affirmed denial of federal habeas corpus relief to petitioner,
the plurality undertakes to apply the constitutional
doctrine of Burgett v. Texas, 389 U. S. 109 ( 1967),
and United States v. Tucker, 404 U.S. 443 ( 1972), to the
case where the uncounseled conviction is used to impeach
the criminal defendant when he takes the stand in his
own defense at subsequent trial. In order to reach this
question, of course, the plurality must conclude that the
prior burglary convictions obtained many years ago in
Tennessee and Mississippi were in fact uncounseled, and
that the defendant had not waived the constitutional right
to counsel that Gideon v. Wainwright, 372 U. S. 335
( 1963), accords him. Petitioner so testified with respect
to the Mississippi convictions at the federal habeas hearing.
But the habeas judge, a veteran of more than 20
years' experience as a federal district court judge, found
as follows with respect to petitioner's assertions of constitutional
error:
"At the outset it might be stated that petitioner
has made false statements under oath, and has testified
to a set of facts so roundly and thoroughly shown
to be false by unimpeachable evidence that little or
no credence may be placed in his own testimony .... "
(App. 61.)
On the basis of other factual inconsistencies that were
resolved against the petitioner, the trial judge made the
following general observation concerning petitioner's
credibility:
"As stated at the outset. petitioner has filed innumerable
applications for relief. Pound for pound.
498 OCTOBER TERM, 1971
REHNQUIST, J., dissenting 405 U.S.
he is probably the most prolific writer of writs to
come before this Court. His applications, verified
under oath, and his testimony in open court under
oath, have been found repeatedly to be completely
false." (App. 65.)
It is therefore surprising, at least at first blush, to find
the plurality reaching the constitutional question that it
decides. I believe the procedural posture in which this
case is presented calls for more attention than it receives
in the plurality's opinion.
In 1947, petitioner was convicted in a Texas state
court of the crime of statutory rape of his eight-yearold
stepdaughter. In the course of that trial, petitioner
took the stand, and, as appropriate under Texas law, was
cross-examined about four prior convictions for burglary,
which had been obtained against him in the States of
Mississippi and Tennessee during the period from 1931
to 1940. The jury convicted petitioner of the offense,
and sentenced him to serve 50 years in the penitentiary.
That conviction has long since become final, and indeed
petitioner is now on parole.
In the present habeas proceeding, petitioner sought to
attack not only the 25-year-old Texas judgment of conviction
under which he still serves, but also to challenge
the constitutional validity of the Mississippi and Tennessee
burglary convictions which vary in age from 30
to 40 years. He introduced certified copies of a 1940
Mississippi conviction, reciting appearances at the trial
by the prosecutor and by "the defendant in his own
proper person"; a certified copy of the indictment and
judgment in a 1935 Tennessee burglary conviction reciting
appearances by the prosecutor "and the defendant in
person"; and a certified copy of an indictment, judgment,
and sentence obtained in Mississippi in 1931, which were
silent regarding the presence or absence of counsel. No
documentary evidence whatever was introduced with reLOPER
v. BETO 499
473 REHNQUIST, J., dissenting
spect to the 1932 Mississippi burglary conviction, which
was the fourth such judgment about which he was interrogated
in the course of the Texas rape trial.
In addition to such documentary evidence, petitioner
in the federal habeas proceeding took the stand himself
and testified explicitly that he had not been advised of
his right to counsel, nor had he been furnished counsel
in the 1931 and 1940 Mississippi burglary convictions.
But the testimony of the petitioner in this proceeding was
found by the federal habeas judge to be false. (Supra,
at 498.)
In Johnson v. Zerbst, 304 U. S. 458, 468-469 (1938),
one of the landmark habeas corpus decisions of this
Court, Mr. Justice Black said:
"It must be remembered, however, that a judgment
cannot be lightly set aside by collateral attack,
even on habeas corpus. When collaterally attacked,
the judgment of a court carries with it a presumption
of regularity. [Footnote omitted.] Where a defendant,
without counsel, acquiesces in a trial resulting
in his conviction and later seeks release by the
extraordinary remedy of habeas corpus, the burden
of proof rests upon him to establish that he did not
competently and intelligently waive his constitutional
right to assistance of counsel. If in a habeas
corpus hearing, he does meet this burden and convinces
the court by a preponderance of evidence that
he neither had counsel nor properly waived his constitutional
right to counsel, it is the duty of the court
to grant the writ."
In addition to the very substantial interests in "a
visible end to the litigable aspect of the criminal process
... ," 1 this case presents other unique practical con-
1 Mackey v. United States, 401 U. S. 667, 690 (1971) (separate
opinion of Harlan, J.).
500 OCTOBER TERM, 1971
REHNQUrsT, J ., dissenting 405 U.S.
siderations for placing the traditional Johnson burden
upon the petitioner to establish a substantial constitutional
deprivation. In this case, unlike the normal habeas
proceeding, not only the underlying state conviction is
put in question, but also convictions of another era from
other States.
It is a sufficiently difficult task for a federal district
court sitting in Texas to review a Texas state criminal
proceeding for constitutional error; in that case the
Texas state custodian himself is a defendant in the proceeding,
all counsel and the district judge are familiar
with local Texas criminal procedure, and the State and
petitioner both have available such witnesses as may be
necessary to augment the record pertaining to the judgment
under attack. \Vhatever evidentiary hearing is held
will take place in the general locale where those witnesses
who have knowledge of the earlier state proceedings are
available to testify.
It is a good deal more difficult for the same Texas
habeas court to make a second-level collateral review
of judgments of conviction rendered in the state courts
of Mississippi and Tennessee. The States that rendered
the convictions are not parties to the Texas habeas
proceeding, and, of course, have no interest whatever in
sustaining the validity of sentences long since served.
Neither the Texas District Court nor Texas counsel can
be expected to have any familiarity with the vagaries
of criminal procedure in Mississippi and Tennessee. If
there are any surviving witnesses to the actual court
proceedings, which took place from 30 to 40 years ago,
they are sufficiently distant from the location of the
Texas habeas court as to render their voluntary appearance
unlikely, and their compulsion by process
impossible.
In Carnley v. Cochran, 369 U. S. 506 (1962), a case
that came here on certiorari to review a judgment of the
LOPER v. BETO 501
473 REHNQUIST, J ., dissenting
Supreme Court of Florida, this Court held that, in the
face of a record completely silent on the issue, there
was a presumption against waiver of a fundamental
constitutional right such as the right to counsel.2 One
need not quarrel with this principle, applied as it was
in Carnley to the review of a state supreme court refusal
to vacate a recent judgment of one of its lower courts,
to believe that in the circumstances presented by the
instant case the burden of proof prescribed for federal
habeas actions in Johnson v. Zerbst, supra, should remain
on the habeas petitioner. This is consistent with the
holding last Term in Kitchens v. Smith, 401 U. S. 847,
848 (1971), in which a petitioner asserted in a state
habeas proceeding that his Sixth Amendment rights under
Gideon v. Wainwright had been violated because the
State had failed to provide him with counsel in a 1944
proceeding at which time he alleged he was indigent.
In reversing the denial of habeas relief, the Court said:
"Of course, to establish his right to appointed counsel
in 1944, petitioner had the burden of proving his inability
at that time to hire an attorney."
Under Gideon v. Wainwright, the petitioner in the
case before us was entitled to the assistance of counsel
in each of the Mississippi and Tennessee burglary trials
in which he was a defendant. However, even under
Gideon, the assignment of counsel to every criminal
defendant is not mandatory; the defendant may, upon
being advised of his right, determine that he does not
wish to avail himself of it. Thus, the fact that the
transcript of the judgment roll admitted from the Tennessee
and Mississippi proceedings indicates in at least
two of the four cases that petitioner did not have counsel
2 Carnley was convicted and sentenced on September 19, 1958. On
June 16, 1960, the Supreme Court of Florida granted a provisional
writ of habeas corpus that was discharged on September 23, 1960.
Carnley v. Cochran, 123 So. 2d 249, 250 (1960).
502 OCTOBER TERM, 1971
REHNQUIST, J., dissenting 405 u. s.
is not conclusive on the issue of whether his rights under
Gideon v. Wainwright were violated. Under Johnson
v. Zerbst, the burden in federal habeas corpus is upon
him to prove to the satisfaction of the federal habeas
judge that he did not waive the right to counsel. Here
petitioner explicitly testified in a manner that, if the
trial judge had chosen to believe him, would indeed
have established that he did not waive his right to
counsel in the Mississippi proceedings and thus those
convictions were obtained in violation of Gideon v. Wainwright.
However, on the basis of his overall assessment
of petitioner's credibility, the trial judge declined to believe
these self-serving assertions. The uniform doctrine
of the cases, both in this Court and elsewhere, is that the
finder of fact is entitled to wholly disbelieve the testimony
of an interested witness. NLRB v. Pittsburgh
S. S. Co., 337 U. S. 656, 659 (1949). As I read the
memorandum opinion of the District Judge, that is precisely
what he chose to do here.
It is true that our grant of certiorari in this case was
limited to the question that is decided by the plurality
in today's opinion. But the limited nature of the grant
is not an advance guarantee that after reading briefs
and hearing oral argument, we will be satisfied that
the question is properly presented to us. Our duty to
avoid constitutional adjudication when narrower grounds
of decision are possible is clearly established by such
authority as Ashwaruier v. TV A, 297 U. S. 288, 345-348
(1936) (Brandeis, J., concurring) , and Rescue Army v.
Municipal Court of Los Angeles, 331 U. S. 549 (1947).
Concluding as I do that the necessary predicate for
the plurality's constitutional decision is absent, I would
dismiss the writ of certiorari as improvidently granted.
Since the plurality addresses itself to the merits of the
case, I do likewise. I would affirm the judgment of
LOPER v. BETO 503
473 REHNQUIST, J., dissenting
the Court of Appeals on the ground that petitioner
has not satisfactorily met his burden of proof that the
Mississippi and Tennessee convictions were obtained in
violation of Gideon v. Wainwright, and therefore that
court was correct in affirming the District Court's judgment
denying habeas relief.
504 OCTOBER TERM, 1971
Syllabus 405 U. S.
HUMPHREY v. CADY, WARDEN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 70-5004. Argued December 7, 1971-Decided March 22, 1972
Petitioner was convicted of contributing to the delinquency of a
minor, a misdemeanor punishable by a maximum sentence of one
year. In lieu of sentence, he was committed to the "sex deviate
facility" in the state prison, for a potentially indefinite period,
pursuant to the Wisconsin Sex Crimes Act. That Act provides that
when a court finds that a convicted person was "probably directly
motivated by a desire for sexual excitement," it may commit the
defendant to the Department of Health and Social Services for a
social, physical, and mental examination, and if the Department
recommends specialized treatment, the court must hold a hearing
on the need therefor. If the State establishes the need for treatment,
the court must commit the defendant for treatment in lieu
of sentence for a period equal to the maximum sentence authorized
for the crime. At the end of that period the Department may
petition for a renewal of the commitment for five years. After
notice and hearing, the court may renew the commitment if it
finds that discharge would be "dangerous to the public." Further
five-year renewals may be similarly obtained. Petitioner is subject
to a five-year renewal order, obtained at the expiration of his
one-year sentence. He challenges the original and renewal commitment
procedures. He argues that commitment for compulsory
treatment under the Sex Crimes Act, at least after the original
commitment, is essentially equivalent to commitment under Wisconsin's
Mental Health Act, which provides for jury determinations,
and that his commitment without jury action deprives him of
equal protection of the laws. He also claims that he was denied
effective assistance of counsel at both hearings and the opportunity
to be present and to confront the State's witnesses at the
renewal hearing. He charges equal protection and due process
violations as a result of his commitment to state prison rather than
to a mental hospital, as provided by the Mental Health Act. At
the renewal hearing his counsel argued that a new commitment
would constitute double jeopardy and indicated a broad constitutional
challenge to the Sex Crimes Act. However, no further
action on petitioner's behalf was taken. The District Court disHUMPHREY
v. CADY 505
504 Syllabus
missed his habeas corpus petition on the grounds that his claims
were lacking in merit and that they had been waived by failure
to present them adequately to the state courts. The Court of
Appeals refused to certify probable cause for an appeal, on the
ground that the claims were frivolous. Held:
1. Petitioner's claims are substantial enough to warrant an evidentiary
hearing. Baxstrom v. Herold, 383 U. S. 107; Specht v.
Patterson, 386 U.S. 605. Pp. 508---514.
(a) The renewal proceedings bear substantial resemblance to
the post-sentencing proceedings in Baxstrom, supra, and the Wisconsin
Supreme Court has held that even the initial commitment
is not just a sentencing a.Jternative but an independent commitment
for treatment, comparable to commitment under the Mental
Health Act. Pp. 508---511.
(b) The Mental Health Act and the Sex Crimes Act are apparently
not mutually exclusive, and an equal protection claim
would be persuasive if it develops on remand that petitioner was
deprived of a jury determination or other procedural protections
merely by the arbitrary decision to seek commitment under one
Act rather than the other. P. 512.
(c) Remand will provide ample opportunity to develop facts
relevant to respondent's claim of mootness as well as to petitioner's
other constitutional claims. Pp. 512-514.
2. Federal habeas corpus is not barred by every state procedural
default, and an evidentiary hearing is required to determine
whether petitioner knowingly and intelligently made a deliberate
strategic waiver of his claims in state court. Pp. 514-517.
Reversed and remanded to District Court.
MARSHALL, J ., delivered the opinion of the Court, in which all
Members joined except PowELL and REHNQUIST, JJ., who took no
part in the consideration or decision of the case.
Irvin B. Charne, by appointment of the Court, 402
U. S. 927, argued the cause and filed briefs for petitioner.
George L. Frederick, Assistant Attorney General of
Wisconsin, argued the cause for respondent. With him
on the brief were Robert W. Warren, Attorney General,
and Mary V. Rowman, Assistant Attorney General.
506 OCTOBER TER:\1, 1971
Opinion of the Court 405 U.S.
MR. JUSTICE MARSHALL delivered the opinion of the
Court.
Petitioner was convicted of contributing to the delinquency
of a minor, a misdemeanor punishable by a
maximum sentence of one year. Wis. Stat. Ann.
§ 947.15 (1958). In lieu of sentence, he was committed
to the "sex deviate facility," located in the state
prison, for a potentially indefinite period of time, pursuant
to the Wisconsin Sex Crimes Act. Wis. Stat. Ann.
§ 959.15 (1958), as amended, Wis. Stat. Ann., c. 975
(1971). In this petition for federal habeas corpus, he
seeks to challenge the constitutional validity of the
statutory procedures for commitment and the conditions
of his confinement. The District Court dismissed
his petition without an evidentiary hearing, on the
grounds that ( 1) his claims were for the most part lacking
in merit as a matter of law, and (2) his claims had
been waived by his failure to present them adequately
to the state courts. The Court of Appeals refused to
certify probable cause for an appeal, 28 U. S. C. § 2253,
relying not on the ground of waiver but solely on the
ground that the claims lacked merit.1 We granted certiorari
to consider the constitutional challenge to the
statute. 401 U. S. 973 ( 1971). We have concluded
that an evidentiary hearing is necessary to resolve petitioner's
constitutional claims, and also to resolve the
question of waiver; consequently we remand the case
to the District Court for a hearing.2
1 The Court of Appeals said in pertinent part:
"Plaintiff also claims variotts procrdural rights to which he would
be entitled in the course of a separate proceeding for conviction of
an offense, but the continuation of commitment is not Sll<'h [a] proceeding."
App. 58.
2 After the petition for certiorari had been filed, it appears that
petitioner was released on parole to the custody of the Secretary of
the State Department of Health and Social Services. That change
HUMPHREY v. CADY 507
504 Opinion of the Court
I
The Wisconsin Sex Crimes Act provides that after
a person is convicted of any crime, the court may consider
whether the crime was "probably directly motivated
by a desire for sexual excitement." If the court finds
such motivation, it may commit the defendant to the
Department of Public Welfare (now the Department of
Health and Social Services) for a social, physical, and
mental examination. If the Department recommends
specialized treatment for the defendant's "mental and
physical aberrations," the court must hold a hearing on
the need for such treatment. If the State establishes
the need for treatment by a preponderance of the evidence,
the court must commit the def end ant to the
Department for treatment in lieu of sentence, for a
period equal to the maximum sentence authorized for
the defendant's crime. At the end of that period, the
Department may petition for an order renewing the
commitment for five years. After notice and hearing,
the court may renew the commitment if it finds that
the defendant's discharge would be "dangerous to the
public because of [his] mental or physical deficiency,
disorder or abnormality." Further five-year renewals
may be similarly obtained without limitation.
Petitioner is presently subject to a five-year renewal
order, obtained at the expiration· of his one-year maximum
sentence. His principal claims relate to the procedure
that resulted in the order renewing his
commitment. In addition, he challenges the original
commitment procedures, and the conditions of his
confinement.
in his custody does not necessarily moot his claims; it simply requires
the substitution of the Secretary for the prison warden as respondent,
which can be accomplished by motion under Rule 49 of this Court,
or by the District Court on remand.
508 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
A review of petitioner's claims compels us to conclude
that they are at least substantial enough to warrant
an evidentiary hearing, in light of this Court's
decisions in Baxstrom v. Herold, 383 U. S. 107 (1966),
and Specht v. Patterson, 386 U. S. 605 (1967). Thus
we reject the contrary conclusion of the Court of Appeals,
implicit in its decision to deny leave to appeal.
A. One of petitioner's principal arguments is that
commitment for compulsory treatment under the Sex
Crimes Act, at least after the expiration of the initial
commitment in lieu of sentence, is essentially equivalent
to commitment for compulsory treatment under
Wisconsin's Mental Health Act, Wis. Stat. Ann., c. 51
(1957); that a person committed under the Mental
Health Act has a statutory right to have a jury determine
whether he meets the standards for commitment,
Wis. Stat. Ann. § 51.03; and that petitioner's commitment
under the Sex Crimes Act without such a jury
determination deprived him of equal protection of the
laws.
In Baxstrom, substantially the same argument was
advanced by a convicted prisoner who was committed
under New York law for compulsory treatment, without
a jury trial, at the expiration of his penal sentence.
This Court held that the State, having made a jury
determination generally available to persons subject to
commitment for compulsory treatment, could not, consistent
with the Equal Protection Clause, arbitrarily
withhold it from a few. 383 U. S., at 110--112. The
Court recognized that the prisoner's criminal record
might be a relevant factor in evaluating his mental condition,
and in determining the type of care and treatment
appropriate for his condition; it could not, however,
justify depriving him of a jury determination on the
basic question whether he was mentally ill and an appropriate
subject for some kind of compulsory treatment.
HUMPHREY v. CADY 509
504 Opinion of t.he Court
Since 1880, Wisconsin has relied on a jury to decide
whether to confine a person for compulsory psychiatric
treatment.3 Like most, if not all, other States with
similar legislation, Wisconsin conditions such confinement
not solely on the medical judgment that the defendant
is mentally ill and treatable, but also on the
social and legal judgment that his potential for doing
harm, to himself or to others, is great enough to justify
such a massive curtailment of liberty.• In making this
determination, the jury serves the critical function of
introducing into the process a lay judgment, reflecting
values generally held in the community, concerning the
kinds of potential harm that justify the State m confining
a person for compulsory treatment.5
3 The jury-trial provision first appeared in c. 266, Wis. Laws 1880,
pp. 299, 301; compare Wis. Rev. Stat. § 593, p. 208 (1878), with
Wis. Rev. Stat. § 593, p. 114 (1883 Supp.).
4 The Mental Health Act authorizes commitment of a person for
compulsory treatment if the court or jury finds that he is (1) mentally
ill, and (2) a "proper subject for custody and treatment." Wis.
Stat. Ann. §§ 51.02 (5), 51.03 (1957). The social and legal aspects
of the determination are implicit not only in the determination of
who is a "proper subject for custody and treatment," but also
in the definition of mental illness itself, contained in the Interstate
Compact on Mental Health, and recently adopted by Wisconsin, as
well as by many other States:
"'Mental illness' means mental disease to such extent that a person
so afflicted requires care and treatment for his own welfare, or the
welfare of others, or of the community." (Emphasis added.) Wis.
Stat. Ann. § 51.75, Art. II (f) (Supp. 1971).
5 In 1926 the Wisconsin Legislature voted to eliminate the jurytrial
provision from the Mental Health Act, at the request of the
state medical society, but the Governor vetoed the bill. Again in
1947 an attempt was made to eliminate the jury trial. A legislative
committee reported that juries too often refused to order commitment
when the medical experts thought it appropriate. Wis. Stat.
1947, c. 51, general comment of interim committee, at 802. This
time the state legislature refused to do away with jury trials, however,
and indeed when the legislature enacted in that same year a
510 OCTOBER TER:\f, 1971
Opinion of the Court 405 u. s.
Commitment for compulsory treatment under the
Wisconsin Sex Crimes Act appears to require precisely
the same kind of determination, involving a mixture of
medical and social or legal judgments.6 If that is so
(and that is properly a subject for inquiry on remand),
then it is proper to inquire what justification exists for
depriving persons committed under the Sex Crimes Act
of the jury determination afforded to persons committed
under the Mental Health Act.
Respondent seeks to justify the discrimination on the
ground that commitment under the Sex Crimes Act is
triggered by a criminal conviction; that such commitment
is merely an alternative to penal sentencing; and
consequently that it does not require the same procedural
safeguards afforded in a civil commitment proceeding.
That argument arguably has force with
respect to an initial commitment under the Sex Crimes
Act, which is imposed in lieu of sentence, and is limited
new statute for the compulsory treatment of "sex psychopaths," the
new statute contained a provision for jury trial paralleling the provision
in the Mental Health Act. Wis. Stat. 1947, § 51.37 (4). Not
until 1951, with the passage of a new Sex Crimes Act, did the provision
for jury trial disappear from the legislation governing the
compulsory treatment of sex offenders. Wis. Stat. 1951, § 340.485
(14)(a).
6 The Sex Crimes Act authorizes an initial commitment of an otherwise
eligible person for compulsory treatment if the court finds that
he is in need of "specialized treatment for his mental or physical
aberrations," \Vis. Stat. Aun.§ 975.06 (1)-(2) (1971), which restated
Wis. Stat. Ann. §959.15 (5)-(6), adding a provision for a judicial
hearing, as required by the Wisconsin Supreme Court in Huebner
v. State, 33 Wis. 2d 505, 147 N. W. 2d 646 (1967). The statute
authorizes renewal of the commitment order if the court finds that
discharge would be "dangerous to the public because of the person's
mental or physical deficiency, disorder or abnormality." Wis.
Stat. Ann. § 975.14 (1971), formerly Wis. Stat. Ann. § 959.15 (14)
(b) (1958).
HUMPHREY v. CADY 511
504 Opinion of the Court
in duration to the maximum permissible sentence.7 The
argument can carry little weight, however, with respect
to the subsequent renewal proceedings, which result in
five-year commitment orders based on new findings of
fact, and are in no way limited by the nature of the
defendant's crime or the maximum sentence authorized
for that crime. The renewal orders bear substantial
resemblance to the post-sentence commitment that was
at issue in Baxstrom. Moreover, the Wisconsin Supreme
Court has expressly held that even the initial
commitment under the Sex Crimes Act is not simply
a sentencing alternative, but rather an independent commitment
for treatment, comparable to commitment
under the Mental Health Act. The Wisconsin court
held, anticipating this Court's decision in Specht v. Patterson,
386 U. S. 605 ( 1967), that a hearing was required
even for the initial commitment under the Sex Crimes
Act. Huebner v. State, 33 Wis. 2d 505, 521-530, 147
N. W. 2d 646, 654-658 (1967). While the Huebner
decision was grounded in considerations of procedural
due process, the Wisconsin court also noted carefully the
relevance of Baxstrom and the Equal Protection Clause
to its decision.8
7 Two courts of appeals have implied thP rontrary, see Matthews
v. Hardy, 137 U. S. App. D. C. 39, 420 F. 2d 607 (1969), cert.
denied, 397 U.S. 1010 (1970), and United States ex rel. Schuster v.
Herold, 410 F. 2d 1071 (CA2), cert. denied, 396 U. S. 847 (1969).
This case does not present the claim of right to a jury trial at the
initial commitment, however, and we intimate no view on that question
here. Petitioner's only objections to the initial commitment
are disrusscd infra, at 513.
6 Following Huebner, petitioner rests his daim alternatively on
Specht and the Due Process Clause, or on Baxstrom and the Equal
Protection Clause. The Wisconsin Supreme Court has, however,
rejected the argument that either Baxstrom or Huebner requires
the State to extend to sex offenders the right to a jury trial at the
512 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
An alternative justification for the discrimination
might be sought in some special characteristic of sex
offenders, which may render a jury determination
uniquely inappropriate or unnecessary. It appears,
however, that the Mental Health Act and the Sex
Crimes Act are not mutually exclusive; that "aberrations"
warranting commitment und~r the latter might
also amount to "mental illness" warranting commitment
under the former.9 The equal protection claim
would seem to be especially persuasive if it develops
on remand that petitioner was deprived of a jury determination,
or of other procedural protections, merely
by the arbitrary decision of the State to seek his commitment
under one statute rather than the other.10
B. The remand hearing will also provide an opportunity
for the District Court to consider factual questions
relevant to petitioner's other claims. In addition
to the lack of a jury trial, petitioner challenges
several other aspects of the hearing that led to the
renewal of his commitment. He claims he was denied
effective assistance of counsel, and he was denied the
opportunity to be present and to confront the State's
witnesses. These claims are tied inextricably to the
hearing on the petition for renewal of commitment. Buchanan v.
State, 41 Wis. 2d 460, 164 N. W. 2d 253 (1969). In rejecting
the equal protection claim, the court relied on distinctions so
elusive that, if they can support. the discrimination at all, they will
require further factual development at the remand hearing in this
case. The jury question was also raised, but not decided, in
Hill v. Burke, 289 F. Supp. 921 (WD Wis. 1968), aff'd, 422 F. 2d
1195 (CA7 1970).
9 Tr. of Oral Arg. 22; Respondent's Supplemental Memorandum,
filed Feb. 25, 1971, pp. 3-4. Compare the criteria for commitment
in n. 4 with the criteria in n. 6, supra.
10 Baxstrom v. Herold, supra, at 111; Cross v. Harris, 135 U.S.
App. D. C. 259, 262, 418 F. 2d 1095, 1098 (1969); Millard v. Harris,
132 U.S. App. D. C. 146,152,406 F. 2d 964,970 (1968).
HUMPHREY v. CADY 513
504 Opinion of the Court
question of possible waiver of rights at that hearing,
a question that clearly requires further exploration on
remand, see infra, at 514-517.
Petitioner also challenges the adequacy of the hearing
that led to his initial commitment. The record
shows that petitioner was not represented by counsel
at that initial commitment, App. 11-12, and thus the
question arises whether the state court ever in fact held
the hearing required by Huebner and Specht, and now
by statute as well. Moreover, petitioner claims that,
even if there was such a hearing, it provided at most
an opportunity to challenge the finding that he needed
treatment, and not an opportunity to challenge the
.initial determination that his crime was sexually motivated,
a determination that was a necessary prerequisite
to the invocation of the whole commitment
process. Respondent argues that any defect in the initial
commitment has been rendered moot by the intervening
renewal hearing.11 It may be, however, that the
initial commitment has continuing effects that cannot
be remedied by a mere attack on the subsequent renewal
order.12 On remand, the District Court should resolve
this threshold question of mootness, and if the Court
determines that the merits of these claims are properly
before it, then it should proceed to resolve the relevant
factual and legal questions.
11 See State ex rel. Stroetz v. Burke, 28 Wis. 2d 195, 136 N. W. 2d
829 (1965).
12 For example, if petitioner can successfully challenge the initial
finding that his crime was sexually motivated, then his commitment
under the Sex Crimes Act would be improper even if he meets the
statutory standards for continued commitment, i. e., even if his
discharge would be "dangerous to the public because of ... mental
or physical ... abnormality." In that case, he could properly be
committed only under the Mental Health Act, in accordance with
its procedures and criteria for commitment, and its conditions of
confinement.
514 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Finally, petitioner challenges the place and character
of his confinement under the Sex Crimes Act. He
objects to the fact that he was committed to the state
prison, rather than to a mental hospital, as he would
have been under the Mental Health Act; and he contends
that no treatment was provided at the prison,
notwithstanding the fact that he was in a prison unit
labeled "Sex Deviate Facility." These matters, in his
view, deprived him of equal protection and due process.
Respondent argues that this aspect of petitioner's claim
has become moot, because (1) petitioner has been released
on parole, see n. 2, supra, and (2) the State has
established a new treatment facility at the state mental
hospital, to which petitioner might be committed if his
parole were revoked.13 On remand, the parties will have
ample opportunity to develop the facts relevant to
the question of mootness, as well as to petitioner's substantial
constitutional claims.
II
Plainly, then, we cannot accept as a ground for decision
the conclusion of the Court of Appeals that petitioner's
claims are too frivolous to require a hearing.
An alternative ground was relied on by the District
Court, however, and respondent presses that argument
here. The District Court held that petitioner had
waived his constitutional claims by failing to present
them properly to the state courts. In order to consider
this argument, it will be necessary to review the
somewhat complicated procedural history of this case.
Petitioner first sought to challenge the constitutionality
of the Sex Crimes Act at the hearing on the State's
petition to renew his commitment beyond the initial
one-year period. His appointed counsel argued that
13 See Brief for Respondent 28-30, and Appendix to Brief 140---156.
HUMPHREY v. CADY 515
504 Opinion of the Court
a new commitment order would constitute a prohibited
second punishment for a single offense, and indicated
that she was making a broad constitutional challenge
to the Sex Crimes Act. The state trial judge adjourned
the matter to permit the parties to brief the constitutional
issues. When petitioner's counsel failed to submit
a brief, or to take any further action on behalf of
petitioner, the state court concluded that the bare petition
of the Department of Public Welfare was sufficient
to support an order continuing petitioner's confinement."
No appeal was taken from that order.10
Petitioner subsequently filed a petition for habeas
corpus, without the assistance of counsel, in the Wisconsin
Supreme Court, which at that time was the only
state court authorized to grant habeas corpus relief to
state prisoners.16 The petition was summarily dismissed
without a response from the State or an opinion by
the court. While the petition is not in the record
before us, both parties represent that it was substantially
identical to the subsequent petition for federal
habeas corpus that initiated the present proceedings.'1
The federal petition, also prepared without the as-
14 The state court relied largely on petitioner's failure to introduce
any evidence in his behalf. In this connection it is noteworthy
that t.he record does not show any evidence introduced by the State,
either; moreover, under Wisconsin law, the State has the burden
of proof in such proceedings. Goetsch v. State, 45 Wis. 2d 285, 172
N. W. 2d 688 (1969) (decided after the commitment hearing in this
case).
15 An appeal is authorized by Wis. Stat. Ann. § 975.16, formerly
Wis. Stat. Ann. § 959.15 (16)
16 Wis. Stat. Ann., c. 292 (1958), which has been replaced by a
comprehensive post-conviction review statute, Wis. Stat. Ann.§ 974.06
(1971).
11 On remand, the District Court will have the opportunity to
ascertain precisely what claims were presented in the state habeas
petition.
516 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
sistance of counsel, alleges, in addition to the claim
of double jeopardy, a claim that petitioner was denied
equal protection and due process, referring specifically
to, inter alia, the lack of a jury trial, and confinement
in the state prison.
The District Court held that the failure of petitioner's
trial counsel to file a brief in the state trial court
amounted to a deliberate strategic decision to abandon
petitioner's constitutional claims; it justified the Wisconsin
Supreme Court's denial of post-conviction relief; and
it operated as a bar to federal relief as well. We cannot
agree with respondent or the District Court that
the present record shows the deliberate bypass of state
remedies that might bar federal consideration of petitioner's
claims. We conclude, however, that respondent
should be given an opportunity to develop the relevant
facts. Accordingly, the case must be remanded for an
evidentiary hearing on this point, as well as on the
merits of such claims as may be ripe for federal
determination.
This Court has repeatedly made it plain that not
every state procedural default bars federal habeas corpus
relief. Title 28 U.S. C. §§ 2254 (b), (c), which require a
state prisoner to exhaust available state remedies, are
limited in their application to those state remedies still
open to the habeas applicant at the time he files his
application in federal court. Fay v. Noia, 372 U.S. 391,
434-435 (1963); see Picard v. Connor, 404 U. S. 270,
272 n. 3 (1971). In this case it appears that petitioner
has met the requirements of the exhaustion rule, inasmuch
as no direct appeal is presently available to
him, and he has taken his claim for post-conviction relief
to the highest state court.18
18 There is, of course, no requirement that petitioner file repetitious
applications in the state courts. Wilwording v. Swenson, 404 U. S.
249 (1971); Brown v. Allen, 344 U.S. 443, 448 n. 3 (1953). The
HUMPHREY v. CADY 517
504 Opinion of the Court
This Court has also held, however, that a federal
habeas judge may in his discretion deny relief to an
applicant who has deliberately bypassed the orderly
procedure of the state courts, on the ground that in
so doing he has forfeited his state court remedies. Fay
v. No-ia, supra, at 438-439. But such a waiver must
be the product of an understanding and knowing decision
by the petitioner himself, who is not necessarily
bound by the decision or default of his counsel. An
eviden tiary hearing will ordinarily be required before
the District Court can determine whether petitioner
made a deliberate strategic waiver of his claim in state
court. In this case, a hearing is necessary to determine
( 1) the reason for counsel's failure to file a brief or
to take further action in the state courts, and (2) the
extent of petitioner's knowledge and participation in
that decision. If the District Court cannot find persuasive
evidence of a knowing and intelligent waiver on
the part of petitioner himself, then the Court should
proceed to consider petitioner's constitutional claims.
The judgment is reversed and the case is remanded to
the District Court for further proceedings in accordance
with this opinion.
It is so ordered.
MR. JuSTICE POWELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of this case.
question on remand is whether any of petitioner's claims is so clearly
distinct from the claims he has already presented to the state courts
that it may fairly be said that the state courts have had no opportunity
to pass on the claim; and if so, whether there is presently
available a state forum in which he can effectively present the claim.
Moreover, some or all of petitioner's claims may be entitled to be
treated as claims for relief under the Civil Rights Act, 42 U. S. C.
§ 1983, in which case no exhaustion is required. Wilwording v.
Sweruon, supra.
518 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
GOODING, WARDEN v. WILSON
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 70--26. Argued December 8, 1971-Decided March 23, 1972
Georgia statute providing that "[a]ny person who shall, without
provocation, use to or of another, and in his presence ... opprobrious
words or abusive language, tending to cause a breach of the
peace ... shall be guilty of a misdemeanor," which has not been
narrowed by the Georgia courts to apply only to "fighting" words
"which by their very utterance ... tend to incite an immediate
breach of the peace," Chaplinsky v. New Hampshire, 315 U. S.
568, 572, is on its face unconstitutionally vague and overbroad
under the First and Fourteenth Amendments. Pp. 520--528.
431 F. 2d 855, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which DouGLAS,
STEWART, WHITE, and MARSHALL, JJ., joined. BURGER, C. J., filed
a dissenting opinion, post, p. 528. BLACKMUN, J., filed a dissenting
opinion, in which BURGER, C. J., joined, post, p. 534. POWELL
and REHNQUIST, JJ., took no part in the consideration or decision
of the case.
Courtney Wilder Stanton, Assistant Attorney General
of Georgia, argued the cause for appellant. With him
on the brief were Arthur K. Bolton, Attorney General,
Harold N. Hill, Jr., Executive Assistant Attorney General,
Dorothy T. Beasley, Assistant Attorney General,
and Franklin Pierce.
Elizabeth R. Rindskopf argued the cause for appellee.
On the brief were Howard Moore, Jr., and Peter E.
Rindskopf.
MR. JUSTICE BRENNAN delivered the opm10n of the
Court.
Appellee was convicted in Superior Court, Fulton
County, Georgia, on two counts of using opprobrious
words and abusive language in violation of Georgia Code
GOODING v. WILSON 519
518 Opinion of the Court
Ann. § 26-6303, which provides: "Any person who shall,
without provocation, use to or of another, and in his
presence ... opprobrious words or abusive language, tending
to cause a breach of the peace ... shall be guilty
of a misdemeanor." Appellee appealed the conviction
to the Supreme Court of Georgia on the ground,
among others, that the statute violated the First and
Fourteenth Amendments because vague and overbroad.
The Georgia Supreme Court rejected that contention
and sustained the conviction. Wilson v. State, 223 Ga.
531, 156 S. E. 2d 446 (1967). Appellee then sought
federal habeas corpus relief in the District Court for
the Northern District of Georgia. The District Court
found that, because appellee had failed to exhaust his
available state remedies as to the other grounds he relied
upon in attacking his conviction, only the contention
that § 26-6303 was facially unconstitutional was ripe
for decision.1 303 F. Supp. 952 (1969). On the merits
1 The District Court stated, "Accordingly, this order win not deal
with the alleged unconstitutional application of this statute nor any
of the other points raised in the writ, except for the facial unconstitutionality
of Georgia Code § 26-6303." 303 F. Supp., at 953.
The state conviction was upon two counts of assault and battery as
well as upon two counts of using opprobrious and abusive language.
Appellee was also convicted of federal offenses arising out of the
same incident, and those convictions were affirmed by the Court of
Appeals for the Fifth Circuit. Tillman v. United States, 406 F. 2d
930 ( 1969). The facts giving rise to the prosecutions are stated
in the opinion of the Supreme Court of Georgia as follows:
"The defendant was one of a group of persons who, on August 18,
1966, picketed the building in which the 12th Corps Headquarters
of the United States Army was located, carrying signs opposing the
war in Viet Nam. When the inductees arrived at the building,
these persons began to block the door so that the inductees could
not enter. They were requested by police officers to move from
the door, but refused to do so. The officers attempted to remove
them from the door, and a scuffle ensued. There was ample
evidence to show that the defendant committed assault and battery
on the two police officers named in the indictment. There was also
520 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
of that question, the District Court, in disagreement
with the Georgia Supreme Court, held that § 26-
6303, on its face, was unconstitutionally vague and
broad and set aside appe11ee's conviction. The Court
of Appeals for the Fifth Circuit affirmed. 431 F. 2d
855 ( 1970). "\Ve noted probable jurisdiction of the
State's appeal, 403 U. S. 930 (1971). We affirm.
Section 26-6303 punishes only spoken words. It can
therefore withstand appellee's attack upon its facial
constitutionality only if, as authoritatively construed by
the Georgia courts, it is not susceptible of application to
speech, although vulgar or offensive, that is protected
by the First and Fourteenth Amendments, Cohen v.
California, 403 U. S. 15, 18-22 (1971); Terminiello v.
Chicago, 337 U. S. 1, 4--5 (1949). Only the Georgia
courts can supply the requisite construction, since of
course "we lack jurisdiction authoritatively to construe
state legislation." United States v. Thirty-seven Photographs,
402 U. S. 363, 369 (1971). It matters not that
the words appellee used might have been constitutionally
prohibited under a narrowly and precisely drawn
statute. At least when statutes regulate or proscribe
sufficient evidenoe of the use of the opprobrious and abusive words
charged, and the jury was authorized to find from the circumstances
shown by the evidence that the words were spoken without
sufficient provocation, and tended to cause a breach of the peace."
223 Ga. 531, 535, 156 S. E. 2d 446, 449-450.
"Count 3 of the indictment alleged that the accused 'did without
provocation use to and of M. G. Redding and in his presence, the
following abusive language and opprobrious words, tending to cause
a breach of the peace: "White son of a bitch, I'll kill you." "You
son of a bitch, I'll choke you to death."' Count 4 alleged that
the defendant 'did without provocation use to and of T. L. Raborn;
and in his presence, the following abusive language and opprobrious
words, tending to cause a breach of the peace: "You son of a bitch,
if you ever put your hands on me again, I'll cut you all to pieces."'"
Id., at 534, 156 S. E. 2d, at 449.
GOODING v. WILSON 521
518 Opinion of the Court
speech and when "no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes
in a single prosecution," Dombrowski v. Pfister, 380 U. S.
479, 491 (1965), the transcendent value to all society
of constitutionally protected expression is deemed to
justify allowing "attacks on overly broad statutes with
no requirement that the person making the attack demonstrate
that his own conduct could not be regulated by
a statute drawn with the requisite narrow specificity,"
id., at 486; see also Baggett v. Bullitt, 377 U. S. 360, 366
(1964); Coates v. City of Cincinnati, 402 U. S. 611, 616
(1971); id., at 619-620 (WHITE, J., dissenting); United
States v. Raines, 362 U.S. 17, 21-22 (1960); NAACP v.
Button, 371 U.S. 415,433 (1963). This is deemed necessary
because persons whose expression is constitutionally
protected may well refrain from exercising their rights for
fear of criminal sanctions provided by a statute susceptible
of application to protected expression.
"Although a statute may be neither vague, overbroad,
nor otherwise invalid as applied to the conduct
charged against a particular defendant, he is
permitted to raise its vagueness or unconstitutional
overbreadth as applied to others. And if the law
is found deficient in one of these respects, it may
not be applied to him either, until and unless a
satisfactory limiting construction is placed on the
statute. The statute, in effect, is stricken down
on its face. This result is deemed justified since
the otherwise continued existence of the statute in
unnarrowed form would tend to suppress constitutionally
protected rights." Coates v. City of Cincinnati,
supra, at 619-620 (opinion of WHITE, J.)
(citation omitted).
The constitutional guarantees of freedom of speech
forbid the States to punish the use of words or
522 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
language not within "narrowly limited classes of
speech." Chaplinsky v. New Hampshire, 315 U. S. 568,
571 ( 1942). Even as to such a class, however, because
"the line between speech unconditionally guaranteed
and speech which may legitimately be regulated, suppressed,
or punished is finely drawn," Speiser v. Randall,
357 U. S. 513, 525 (1958), "(i]n every case the
power to regulate must be so exercised as not, in attaining
a permissible end, unduly to infringe the protected
freedom," Cantwell v. Connecticut, 310 U. S. 296, 304
(1940). In other words, the statute must be carefully
drawn or be authoritatively construed to punish only
unprotected speech and not be susceptible of application
to protected expression. "Because First Amendment
freedoms need breathing space to survive, government
may regulate in the area only with narrow
specificity." NAACP v. Button, supra, at 433.
Appellant does not challenge these principles but
contends that the Georgia statute is narrowly drawn to
apply only to a constitutionally unprotected class of
words-"fighting" words-"those which by their very
utterance inflict injury or tend to incite an immediate
breach of the peace." Chaplinsky v. New Hampshire,
supra, at 572. In Chaplinsky, we sustained a conviction
under Chapter 378, § 2, of the Public Laws of New
Hampshire, which provided: "No person shall address
any offensive, derisive or annoying word to any other
person who is lawfully in any street or other public
place, nor call him by any offensive or derisive
name .... " Chaplinsky was convicted for addressing
to another on a public sidewalk the words, "You are a
God damned racketeer," and "a damned Fascist and
the whole government of Rochester are Fascists or
agents of Fascists." Chaplinsky challenged the constitutionality
of the statute as inhibiting freedom of
expression because it was vague and indefinite. The
Supreme Court of New Hampshire, however, "long beGOODING
v. WILSON 523
518 Opinion of the Court
fore the words for which Chaplinsky was convicted,"
sharply limited the statutory language "offensive, derisive
or annoying word" to "fighting" words:
"[NJ o words were forbidden except such as have
a direct tendency to cause acts of violence by
the person to whom, individually, the remark is
addressed ...
"The test is what men of common intelligence
would understand would be words likely to
cause an average addressee to fight. . . . Derisive
and annoying words can be taken as coming within
the purview of the statute ... only when they have
this characteristic of plainly tending to excite the
addressee to a breach of the peace ....
"The statute, as construed, does no more than
prohibit the face-to-face words plainly likely to
cause a breach of the peace by the addressee .... "
91 N. H. 310, 313, 320-321, 18 A. 2d 754, 758, 762
(1941).
In view of that authoritative construction, this Court
held: "We are unable to say that the limited scope
of the statute as thus construed contravenes the Constitutional
right of free expression. It is a statute
narrowly drawn and limited to define and punish specific
conduct lying within the domain of state power, the use
in a public place of words likely to cause a breach of
the peace." 315 U. S., at 573. Our decisions since
Chaplinsky have continued to recognize state power constitutionally
to punish "fighting" words under carefully
drawn statutes not also susceptible of application to
protected expression, Cohen v. California, 403 U. S., at
20; Bachellar v. Maryland, 397 U.S. 564,567 (1970); see
Street v. New York, 394 U . S. 576, 592 (1969). We
reaffirm that proposition today.
524 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Appellant argues that the Georgia appellate courts
have by construction limited the proscription of§ 26-6303
to "fighting" words, as the New Hampshire Supreme
Court limited the New Hampshire statute. "A consideration
of the [Georgia] cases construing the elements of
the offense makes it clear that the opprobrious words and
abusive language which are thereby prohibited are those
which as a matter of common knowledge and under
ordinary circumstances will, when used to or of another
person, and in his presence, naturally tend to provoke violent
resentment. The statute under attack simply states
in statutory language what this Court has previously
denominated 'fighting words.' " Brief for Appellant 6.
Neither the rnstrict Court nor the Court of Appeals
so read the Georgia decisions. On the contrary, the District
Court expressly stated, "Thus, in the decisions
brought to this Court's attention, no meaningful attempt
has been made to limit or properly define these terms."
303 F. Supp., at 955. The District Judge and one member
of the unanimous Court of Appeals panel were Georgia
practitioners before they ascended the bench.2 Their
views of Georgia law necessarily are persuasive with us.
C. Wright, Law of Federal Courts § 58, pp. 240-241 (2d
ed. 1970). We have, however, made our own examination
of the Georgia cases, both those cited and others
discovered in research. That examination brings us to
the conclusion, in agreement with the courts below, that
the Georgia appellate decisions have not construed
§ 26-6303 to be limited in application, as in Chaplinsky,
to words that "have a direct tendency to cause acts of
violence by the person to whom, individually, the remark
is addressed."
2 Judge Sidney 0. Smith, Jr., of Gainesville, Georgia, was the
District Judge. Judge Lewis R. Morgan of Newnan, Georgia, a
member of the Court of Appeals panel, sat as District Judge in
Georgia before his appointment to the Court of Appeals.
GOODING v. WILSON 525
518 Opinion of the Court
The dictionary definitions of "opprobrious" and "abusive"
give them greater reach than "fighting" words.
Webster's Third New International Dictionary (1961) defined
"opprobrious" as "conveying or intended to convey
disgrace," and "abusive" as including "harsh insulting
language." Georgia appellate decisions have construed
§ 26-6303 to apply to utterances that, although within
these definitions, are not "fighting" words as Chaplinsky
defines them. In Lyons v. State, 94 Ga. App. 570, 95
S. E. 2d 478 (1956), a conviction under the statute
was sustained for awakening 10 women scout leaders on
a camp-out by shouting, "Boys, this is where we are going
to spend the night." "Get the G-- d--- bed rolls out ...
let's see how close we can come to the G-- d--- tents."
Again, in F-ish v. State, 124 Ga. 416, 52 S. E. 737 ( 1905),
the Georgia Supreme Court held that a jury question
was presented by the remark, "You swore a lie." Again,
Jackson v. State, 14 Ga. App. 19, 80 S. E. 20 (1913),
held that a jury question was presented by the words
addressed to another, "God damn you, why don't you get
out of the road?" Plainly, although "conveying ...
disgrace" or "harsh insulting language," these were not
words "which by their very utterance ... tend to incite
an immediate breach of the peace." Chaplin,Sky v. New
Hampshire, supra, at 572.
Georgia appellate decisions construing the reach of
"tending to cause a breach of the peace" underscore
that § 26-6303 is not limited, as appellant argues, to
words that "naturally tend to provoke violent resentment."
Lyons v. State, supra; F-ish v. State, supra;
and Jackson v. State, supra. Indeed, the Georgia Court
of Appeals 3 in Elmore v. State, 15 Ga. App. 461, 83 S. E.
8 We were informed in oral argument that the Court of Appeals
of Georgia is a court of statewide jurisdiction, the decisions of which
are binding upon all trial courts in the absence of a conflicting decision
of the Supreme Court of Georgia. Federal courts therefore
526 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
799 (1914), construed "tending to cause a breach of the
peace" as mere
"words of description, indicating the kind or character
of opprobrious or abusive language that
is penalized, and the use of language of this
character is a violation of the statute, even though
it be addressed to one who, on account of circumstances
or by virtue of the obligations of office, can
not actually then and there resent the same by a
breach of the peace . . . .
" ... Suppose that one, at a safe distance and
out of hearing of any other than the person
to whom he spoke, addressed such language to
one locked in a prison cell or on the opposite
bank of an impassable torrent, and hence without
power to respond immediately to such verbal insults
by physical retaliation, could it be reasonably contended
that, because no breach of the peace could
then follow, the statute would not be violated? ...
" ... [T]hough, on account of circumstances or
obligations imposed by office, one may not be able at
the time to assault and beat another on account of
such language, it might still tend to cause a breach
of the peace at some future time, when the person
to whom it was addressed might be no longer
hampered by physical inability, present conditions,
or official position." 15 Ga. App., at 461-463, 83
S. E., at 799-800.4
follow these holdings as to Georgia Jaw. Fidelity Union Trust Co.
v. Field, 311 U. S. 169 (1940); Bernhardt v. Polygraphic Co. of
America, 350 U.S. 198, 205 (1956).
" The dissents question reliance upon Georgia cases decided more
than 50 years ago. But Fish v. State, 124 Ga. 416, 52 S. E. 737
(1905), and Jackson v. State, 14 Ga. App. 19, 80 S. E. 20 (1913),
were cited by the Supreme Court of Georgia in 1967 in Wilson v.
State, 223 Ga. 531, 156 S. E. 2d 446, to support that holrling. Thus,
Fish and Jackson remain authoritative interpretations of § 26--6303
by the State's highest court.
GOODING v. WILSON 527
518 Opinion of the Court
Moreover, in Samuels v. State, 103 Ga. App. 66, 67,
118 S. E. 2d 231, 232 (1961), the Court of Appeals, in
applying another statute, adopted from a textbook the
common-law definition of "breach of the peace."
"The term 'breach of the peace' is generic, and
includes all violations of the public peace or order,
or decorum; in other words, it signifies the offense
of disturbing the public peace or tranquility enjoyed
by the citizens of a community . . . . By 'peace,'
as used in this connection, is meant the tranquility
enjoyed by the citizens of a municipality or a community
where good order reigns among its members."
This definition makes it a "breach of peace" merely
to speak words offensive to some who hear them, and so
sweeps too broadly. Street v. X ew York, 394 r. S., at
592. "[H]ow infinitely more doubtful and uncertain are
the boundaries of an offense including any 'diversion
tending to a breach of the peace' .... " Gregory v. Chicago,
394 U. S. 111, 119 (1969) (Black, J., concurring)
(emphasis supplied).
Accordingly, we agree with the District Court that our
decisions in Ashton v. Kentucky, 384 U.S. 195 (1966),
and Cox v. Louisiana, 379 U. S. 536 (1965), compel the
conclusion that § 26-6303, as construed, does not define
the standard of responsibility with requisite narrow specificity.
In Ashton we held that "to make an offense of
conduct which is 'calculated to create disturbances of the
peace' leaves wide open the standard of responsibility."
384 U. S., at 200. In Cox v. Louisiana the statute struck
down included as an element congregating with others
"with intent to provoke a breach of the peace, or under
circumstances such that a breach of the peace may be occasioned
thereby." As the District Court observed, "[a]s
construed by the Georgia courts. especially in the instant
case, the Georgia provision as to breach of the peace is
even broader than the Louisiana statute." 303 F. Supp.,
at 956.
528 OCTOBER TERM, 1971
BURGER, C. J., dissenting 405 U.S.
We conclude that "[t]he separation of legitimate
from illegitimate speech calls for more sensitive tools than
[Georgia] has supplied." Speiser v. Randall, 357 U. S.,
at 525. The most recent decision of the Georgia Supreme
Court, Wilson v. State, supra, in rejecting appellee's
attack on the constitutionality of § 26-6303, stated
that the statute "conveys a definite meaning as to the
conduct forbidden, measured by common understanding
and practice." 223 Ga., at 533, 156 S. E. 2d, at 448.
Because earlier appellate decisions applied § 26-6303 to
utterances where there was no likelihood that the person
addressed would make an immediate violent response,
it is clear that the standard allowing juries to determine
guilt "measured by common understanding and
practice" does not limit the application of § 26-6303
to "fighting" words defined by Chaplinsky. Rather, that
broad standard effectively "licenses the jury to create
its own standard in each case." Herndon v. Lowry, 301
U. S. 242, 263 (1937). Accordingly, we agree with the
conclusion of the District Court, "[t]he fault of the statute
is that it leaves wide open the standard of responsibility,
so that it is easily susceptible to improper application."
303 F. Supp., at 955-956. Unlike the
construction of the New Hampshire statute by the New
Hampshire Supreme Court, the Georgia appellate courts
have not construed § 26-6303 "so as to avoid all constitutional
difficulties." United States v. Thirty-seven
Photographs, 402 U. S., at 369.
Affirmed.
MR. JUSTICE PowELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of this case.
MR. CHIEF JUSTICE BuRGER, dissenting.
I fully join in MR. JUSTICE BLACKMUN's dissent against
the bizarre result reached by the Court. It is not merely
odd, it is nothing less than remarkable that a court can
GOODING v. WILSON 529
518 BURGER, C. J ., dissenting
find a state statut€ void on its face, not because of its
language-which is the traditional test-but because of
the way courts of that State have applied the statute in
a few isolated cases, decided as long ago as 1905 and
generally long before this Court's decision in Chaplinsky
v. New Hampshire, 315 U.S. 568 (1942). Even if all of
those cases had been decided yesterday, they do nothing
to demonstrate that the narrow language of the Georgia
statute has any significant potential for sweeping application
to suppress or deter important protected speech.
In part the Court's decision appears to stem from its
assumption that a statute should be regarded in the same
light as its most vague clause, without regard to any of its
other language. Thus, since the statute contains the
words "tending to cause a breach of the peace" the Court
finds its result "compelled" by such decisions as Ashton v.
Kentucky, 384 U.S. 195 (1966), and Cox v. Louisiana, 379
U. S. 536 (1965). The statute at bar, however, does not
prohibit language "tending to cause a breach of the
peace." Nor does it prohibit the use of "opprobrious
words or abusive language" without more. Rather, it
prohibits use "to or of another, and in his presence [of]
opprobrious words or abusive language, tending to cause
a breach of the peace." If words are to bear their
common meaning, and are to be considered in context,
rather than dissected with surgical precision using
a semantic scalpel, this statute has little potential
for application outside the realm of "fighting words"
that this Court held beyond the protection of the
First Amendment in Chaplinsky. Indeed, the language
used by the Chaplin.sky Court to describe words
properly subject to regulation bears a striking resemblance
to that of the Georgia statute, which was enacted many,
many years before Chaplinsky was decided. See 315
U. S., at 573. And if the early Georgia cases cited by
the majority establish any proposition, it is that the
statute, as its language so clearly indicates, is aimed at
530 OCTOBER TERlVI, 1971
BURGER, C. J., dissenting 405 U.S.
preventing precisely that type of personal, face-to-face,
abusive and insulting language likely to provoke a violent
retaliation-self-help, as we euphemistically call itthat
the Chaplinsky case recognized could be validly
prohibited. The facts of the case now before the Court
demonstrate that the Georgia statute is serving that
valid and entirely proper purpose. There is no persuasive
reason to wipe the statute from the books, unless
we want to encourage victims of such verbal assaults to
seek their own private redress.
The Court apparently acknowledges that the conduct
of the defendant in this case is not protected by the First
Amendment, and does not contend that the Georgia statute
is so ambiguous that he did not have fair notice that
his conduct was prohibited. Nor does the Court deny
that under normal principles of constitutional adjudication,
appellee would not be permitted to attack his own
conviction on the ground that the statute in question
might in some hypothetical situation be unconstitutionally
applied to the conduct of some party not before the
Court. United States v. Raines, 362 U. S. 17, 21 (1960)
(BRENNAN, J.). Instead, the Court relies on certain
sweeping language contained in a few opinions for the
proposition that, without regard to the nature of appellee's
conduct, the statute in question must be invalidated
on its face unless "it is not susceptible of application
to speech, ... that is protected by the First and
Fourteenth Amendments."
Such an expansive statement of the technique of invalidating
state statutes on their face because of their
substantial overbreadth finds little in policy or the actual
circumstances of the Court's past decisions to commend
it. As the Court itself recognizes, if the First Amendment
overbreadth doctrine serves any legitimate purpose,
it is to allow the Court to invalidate statutes because
their language demonstrates their potential for
GOODING v. WILSON 531
518 BURGER, C. J., dissenting
sweeping improper applications posing a significant likelihood
of deterring important First Amendment speechnot
because of some insubstantial or imagined potential
for occasional and isolated applications that go beyond
constitutional bounds. Writing in a related context,
Mr. Justice Black, only last Term, evidenced proper
regard for normal principles of adjudication when he
observed:
"Procedures for testing the constitutionality of a
statute 'on its face' ... and for then enjoining all
action to enforce the statute until the State can
obtain court approval for a modified version, are
fundamentally at odds with the function of the
federal courts in our constitutional plan. The
power and duty of the judiciary to declare laws
unconstitutional is in the final analysis derived from
its responsibility for resolving concrete disputes
brought before the courts for decision; a statute
apparently governing a dispute cannot be applied
by judges ... when such an application of the statute
would conflict with the Constitution. Marbury v.
Madison, l Cranch 137 (1803). But this vital responsibility,
broad as it is, does not amount to an
unlimited power to survey the statute books and
pass judgment on laws before the courts are called
upon to enforce them. . . . [T]he task of analyzing
a proposed statute, pinpointing its deficiencies, and
requiring correction of these deficiencies before the
statute is put into effect, is rarely if ever an appropriate
task for the judiciary. . . . " Younger v.
Harris, 401 U. S. 37, 52-53 (1971).
These observations were directed specifically to the practice
of issuing federal court injunctions against state
prosecutions, but the problem prei,ented by this case
is much the same.
532 OCTOBER TERM, 1971
BURGER, C. J., dissenting 405 U.S.
Consistent with this properly restrained approach, the
overbreadth decisions of this Court, including most of
those relied on by the majority, have up to now invalidated
state statutes on their face only when their potential
for sweeping and improper application in important
areas of First Amendment concern was far more apparent-
both from the language of the statute and the
subject matter of its coverage-than in this case. Indeed,
in many of the Court's leading cases, the statute's
improper sweep and deterrent potential were amply documented
by the very facts of the case before the Court.
Cox v. Louisiana, 379 U. S. 536 (1965), heavily relied
on by the majority, for example, involved a "breach of
the peace" conviction of a leader of black students on the
basis of his participation in a peaceful demonstration
protesting racial discrimination and a speech urging a
"sit in" at segregated lunch counters. Although the
Court held, in the alternative, that a statutory prohibition
against congregating with others on a public sidewalk
"with intent to provoke a breach of the peace, or
under circumstances such that a breach of the peace may
be occasioned thereby" was unconstitutionally vague and
overbroad, it is clear that its primary holding was that
the statute had been unconstitutionally applied to appellant's
conduct as revealed by the record before the Court.
See 379 U. S., at 545-551. In contrast to today's opinion,
which mentions the facts of the instant case only
by way of passing in a footnote, the Cox opinion contained
a careful recital and examination of the facts
involved, and took care to observe that there was not
in the record "any evidence . . . of 'fighting words.'
See Chaplinsky v. New Hampshire, 315 U. S. 568," 379
U. S., at 551. It was clear, therefore, that in Cox not
only the language of the statute, but the facts of the
very case before the Court, involving as it did protected
political speech concerning a burning issue of great social
concern, were cogent and persuasive evidence of the
GOODING v. WILSON 533
518 BURGER, C. J., dissenting
statute's potential for sweeping and improper applications.
By way of contrast, there is nothing in the
language of the Georgia statute, or even in the isolated
and ancient Georgia decisions relied on by the Court
today that indicates that the statute involved in this
case has ever been applied to suppress speech even remotely
comparable to that involved in Cox.
There is no need to consider each of the other decisions
relied on by the majority to reach its result in detail.
Suffice it to say that such cases as Ashton v. Kentucky,
384 U. S. 195 (1966); Baggett v. Bullitt, 377 U. S. 360
(1964); NAACP v. Button, 371 U. S. 415 (1963), and
Dombrowski v. Pfister, 380 U. S. 479 (1965), arose out
of factual situations and involved statutory language and
objectives so far different from the instant case in terms
of the actual and apparent danger to free expression
that their relevance to the case at hand is at best
strained and remote.*
*Even assuming that the statute, on its face, were impermissibly
overbroad, the Court does not satisfactorily explain why it must be
invalidated in its entirety. To be sure, the Court notes that "we
lack jurisdiction authoritatively to construe state legislation." But
that cryptic statement hardly resolves the matter. The State of
Georgia argues that the statute applies only to fighting words that
Chaplinsky holds may be prohibited, and the Court apparently agrees
that the statute would be valid if so limited. The Court should not
assume that the Georgia courts, and Georgia prosecutors and police,
would ignore a decision of this Court sustaining appellee's conviction
narrowly and on the explicit premise that the statute may be validly
applied only to "fighting words" as defined in Chaplinsky. See generally
Note, The First Amendment Overbreadth Doctrine, 83 Harv.
L. Rev. 844, 892, 894-896, and nn. 189, 190 (1970). Where such a
clear line defining the area of constitutional application is available,
the fact that the Court cannot authoritatively construe the state
statute to excise its unconstitutional applications should make us
more, not less, reluctant to strike it down on its face. This is
especially so when the Court, by relying on old Georgia cases to
bolster its conclusion, virtually concedes that the plain language doc8
not offend the First Amendment.
534 OCTOBER TERM, 1971
BLACKMUN, J., dissenting 405 u. s.
The Court makes a mechanical and, I suggest, insensitive
application of the overbreadth doctrine today. As
MR. JUSTICE BLACKMUN correctly points out, it is difficult
to imagine how a State could enact a statute more
clearly and narrowly aimed at regulating the type of
conduct that the unanimous holding of Chaplinsky tells
us may be regulated. It is regrettable that one consequence
of this holding may be to mislead some citizens
to believe that fighting words of this kind may be uttered
free of any legal sanctions.
MR. JUSTICE BLACKMUN, with whom THE CHIEF Jus-
TICE joins, dissenting.
It seems strange, indeed, that in this day a man may
say to a police officer, who is attempting to restore
access to a public building, "White son of a bitch, I'll
kill you" and "You son of a bitch, I'll choke you to
death," and say to an accompanying officer, "You son
of a bitch, if you ever put your hands on me again, I'll
cut you all to pieces," and yet constitutionally cannot
be prosecuted and convicted under a state statute that
makes it a misdemeanor to "use to or of another, and
in his presence ... opprobrious words or abusive language,
tending to cause a breach of the peace .... "
This, however, is precisely what the Court pronounces
as the law today.
The Supreme Court of Georgia, when the conviction
was appealed, unanimously held the other way. Wilson
v. State, 223 Ga. 531, 156 S. E. 2d 446 ( 1967). Surely
any adult who can read-and I do not exclude this
appellee-defendant from that category-should reasonably
expect no other conclusion. The words of Georgia
Code § 26-6303 are clear. They are also concise. They
are not, in my view, overbroad or incapable of being
understood. Except perhaps for the "big" word "opprobrious"-
and no point is made of its bigness-any
GOODING v. WILSON 535
518 BLACKMON, J., dissenting
Georgia schoolboy would expect that this defendant's
fighting and provocative words to the officers were covered
by § 26-6303. Common sense permits no other
conclusion. This is demonstrated by the fact that the
appellee, and this Court, attack the statute, not as it
applies to the appellee, but as it conceivably might apply
to others who might utter other words.
The Court reaches its result by saying that the Georgia
statute has been interpreted by the State's courts so as
to be applicable in practice to otherwise constitutionally
protected speech. It follows, says the Court, that the
statute is overbroad and therefore is facially unconstitutional
and to be struck down in its entirety. Thus
Georgia apparently is to be left with no valid statute
on its books to meet Wilson's bullying tactic. This
result, achieved by what is indeed a very strict construction,
will be totally incomprehensible to the State of
Georgia, to its courts, and to its citizens.
The Court would justify its conclusion by unearthing
a 66-year-old decision, Fish v. State, 124 Ga. 416,
52 S. E. 737 (1905), of the Supreme Court of Georgia,
and two intermediate appellate court cases over 55 years
old, Jackson v. State, 14 Ga. App. 19, 80 S. E. 20 (1913),
and Elmore v. State, 15 Ga. App. 461, 83 S. E. 799
( 1914), broadly applying the statute in those less permissive
days, and by additional reference to (a) a 1956
Georgia intermediate appellate court decision, Lyons v.
State, 94 Ga. App. 570, 95 S. E. 2d 478, which, were it
the first and only Georgia case, would surely not support
today's decision, and (b) another intermediate
appellate court decision, Samuels v. State, 103 Ga. App.
66, 118 S. E. 2d 231 (1961), relating. not to § 26-6303,
but to another statute.
This Court appears to have developed its overbreadth
rationale in the years since these early Georgia cases.
The State's statute, therefore, is condemned because the
536 OCTOBER TERM, 1971
BLACKMUN, J., dissenting 405 u. s.
State's courts have not had an opportunity to adjust
to this Court's modern theories of overbreadth.
I wonder, now that § 26-6303 is voided, just what
Georgia can do if it seeks to proscribe what the Court
says it still may constitutionally proscribe. The natural
thing would be to enact a new statute reading just as
§ 26-6303 reads. But it, too, presumably would be overbroad
unless the legislature would add words to the
effect that it means only what this Court says it may
mean and no more. See Criminal Code of Georgia
§ 26-2610 (1969).
I cannot join the Court in placing weight upon the
fact that Judge Smith of the United States District
Court had been a Georgia practitioner and that Judge
Morgan of the Court of Appeals had also practiced in
that State. After all, each of these Georgia federal
judges is bound by this Court's self-imposed straitjacket
of the overbreadth approach. Judge Smith's personal
attitude is clear, for he said:
"[T] his Court does not see any policy reasons for
upholding the right of a person to use the type
of language expressed by this petitioner. It strains
the concept of freedom of speech out of proportion
when it is argued that such language is and should
be protected." 303 F. Supp. 952, 955 (ND Ga.
1969).
And the Court of Appeals joined in this comment when,
on the point at issue here, it merely agreed "with the
well reasoned opinion of the district court." 431 F. 2d
855, 859 (CA5 1970).
For me, Chaplinsky v. New Hampshire, 315 U. S. 568
( 1942), was good law when it was decided and deserves
to remain as good law now. A unanimous Court, including
among its members Chief Justice Stone and Justices
Black, Reed, DouGLAS, and Murphy, obviously thought
GOODING v. WILSON 537
518 BLACKMUN, J ., dissenting
it was good law. But I feel that by decisions such as
this one and, indeed, Cohen v. Californw, 403 U. S. 15
(1971), the Court, despite its protestations to the contrary,
is merely paying lip service to Chaplinsky. As the
appellee states in a footnote to his brief, p. 14, "Although
there is no doubt that the state can punish 'fighting
words' this appears to be about all that is left of the decision
in Chaplinsky." If this is what the overbreadth
doctrine means, and if this is what it produces, it urgently
needs re-examination. The Court has painted itself into
a corner from which it, and the States, can extricate themselves
only with difficulty.
538 OCTOBER TER::l.f, 1971
Syllabus 405 U.S.
LYNCH ET AL. v. HOUSEHOLD FINANCE CORP.
ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF CONNECTICUT
:fo. 70-5058. Argued December 7, 1971-Decided March 23, 1972
Appellee Household Finance Corp. sued appellant Lynch in state
court alleging nonpayment of a promissory note, and, prior to
serving her with process, garnished her savings account under
Connecticut law authorizing summary pre-judicial garnishment.
Appellant challenged the validity of the state statutes under the
Equal Protection and Due Process Clauses of the Fourteenth
Amendment, and sought declaratory and injunctive relief under
42 U. S. C. § 1983 and its jurisdictional counterpart, 28 U. S. C.
§ 1343 (3). The District Court dismissed the complaint on the
grounds (1) that it lacked jurisdiction under § 1343 (3), as that
section applies only if "personal" rights, as opposed to "property"
rights, are impaired, and (2) that relief was barred by 28 U. S. C.
§ 2283, proscribing injunctions against state court proceedings.
Held:
1. There is no distinction between personal liberties a11d proprietary
rights with respect to jurisdiction under 28 U. S. C.
§ 1343 (3). Pp. 542-552.
(a) Neither the language nor the legislaHve history of that
section distinguishes between personal and property rights. Pp.
543-546.
(b) There is no conflict between that section and 28 U.S. C.
§ 1331, and the legislative history of § 1331 does not provide any
basis for narrowing the scope of § 1343 (3) jurisdiction. Pp. 546-
550.
(c) It would be virtually impossible to apply a "personal
liberties" limitation on § 1343 (3) as there is no real dichotomy between
personal liberties and property rights. It has long been
recognized that rights in property are basic civil rights. Pp. 550-
552.
2. Prejudgment garnishment under the Connecticut statutes is
levied and maintained without the participation of the state courts,
and thus an injunction against such action is not barred by the
provisions of 28 U. S. C. § 2283. Pp. 552-556.
318 F. Supp. 1111, reversed and remanded.
LYNCH v. HOUSEHOLD FINANCE CORP. 539
538 Opinion of the Court
STEWART, J., delivered the opinion of the Court, in which Douo-
LAS, BRE~NAN, and MARSHALL, JJ., joined. WHITE, J., filed a
dissenting opinion, in which BURGER, C. J., and BLACKMUN, J.,
joined, post, p. 556. POWELL and REHNQUIST, .JJ ., took no part in
the consideration or derision of the case.
David M. Lesser argued the cause for appellants.
With him on the briefs was William H . Clendenen, Jr.
Richard G. Bell argued the cause for appellees. With
him on the brief for appellees Household Finance Corp.
et al. were Charles A. Pulaski, Jr., and David W. Goldman.
Robert K. Killian, Attorney General of Connecticut,
and Raymond J. Cannon and Robert L. H irtle,
Jr., Assistant Attorneys General, filed a brief for Barrett,
Deputy Sheriff.
MR. JUSTICE STEWART delivered the opinion of the
Court.
In 1968, the appellant, Mrs. Dorothy Lynch, a resident
of New Haven, Connecticut, directed her employer
to deposit $10 of her $69 weekly wage in a credit
union savings account. In 1969, appellee Household
Finance Corp. sued Mrs. Lynch for $525 in a state
court, alleging nonpayment of a promissory note.
Before she was served with process, the appellee corporation
garnished her savings account under the provisions
of Connecticut law that authorize summary
pre-judicial garnishment at the behest of attorneys for
alleged creditors.1
The appellant then brought this class action in a
federal district court against Connecticut sheriffs who
levy on bank accounts and against creditors who in-
1 The garnishment was levied pursuant to Conn. Gen. Stat. Rev.
§ 52-329. For a further description of Connecticut's statutory garnishment
scheme, see Part II of this opinion, infra.
540 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
voke the garnishment statute.2 Mrs. Lynch alleged
that she had no prior notice of the garnishment and
no opportunity to be heard. She claimed that the state
statutes were invalid under the Equal Protection and
Due Process Clauses of the Fourteenth Amendment, and
sought declaratory and injunctive relief pursuant to
42 U. S. C. § 1983 3 and its jurisdictional counterpart,
28 U. S. C. § 1343 (3).4 A district court of three judges
was convened to hear the claim under 28 U. S. C. §§ 2281
and 2284.
2 The second named appellant, Norma Toro, had her checking account
garnished by her former landlord, one Eugene Composano.
Subsequently Camposano released the garnishment. An issue of
mootnesss-which was not resolved by the District Court-is thus
presented. We do not, however, reach this issue. Appellant Lynch
had a savings account garnished, appellant Toro a checking account.
The considerations applicable to one type of account seem identical
to those applicable to the other. In this opinion, therefore, we shall
only refer to the case of appellant Lynch.
An issue is also raised as to the propriety of the classes purported
to be represented by the appellants and appellees. In view of our
disposition of the case, we leave this issue for consideration by the
District Court upon remand.
3 The statute provides:
"Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory, subjects, or causes to
be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress."
4 The statute states in relevant part:
"The district courts shall have original jurisdiction of any civil
act.ion authorized by law to be commenced by any person:
"(3) To redress the deprivation, under color of any State law,
statute, ordinance, regulation, custom or usage, of any right, privilege
or immunity secured by the Constitution of the United States or
by any Act of Congress providing for equal rights of citizens or of
all persons within the jurisdiction of the United States . . .. "
LYNCH v. HOUSEHOLD FINANCE CORP. 541
538 Opinion of the Court
The District Court did not reach the merits of the
case. It dismissed the complaint without an evidentiary
hearing on the grounds that it lacked jurisdiction under
§ 1343 (3) and that relief was barred by the statute
prohibiting injunctions against state court proceedings,
28 U.S. C. § 2283. 318 F. Supp. 1111. We noted probable
jurisdiction, pursuant to 28 U. S. C. § 1253,5 to
consider the jurisdictional issues presented. 401 U. S.
935.
5 The appellees argue that we have no jurisdiction to consider this
case on direct appeal from the three-judge District Court, 28 U. S. C.
§ 1253, because the court did not reach the merits of the appellant's
claim for an injunction but dismissed for lack of subject matter
jurisdiction.
But whether a direct appeal will lie depends on "whether the
three-judge [court was] properly convened." Moody v. Flowers,
387 U. S. 97, 99. This action challenges the constitutionality
of a state statute and seeks to enjoin its enforcement. The questions
it raises are substantial. It, therefore, meets the requirements
for convening a three-judge court. 28 U. S. C. § 2281; ldlewild
Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715. This case
may, therefore, be distinguished from Perez v. Ledesma, 401 U. S.
82, upon which the appellees rely. In that case, we had no power
to consider the merits of an appeal because the ordinance in quest.
ion was neither a state statute nor of statewide application. Perez,
supra, at 89 ( concurring opinion). When a state statute is challenged
and injunctive relief sought, we have granted direct review
pursuant to § 1253 although three-judge courts dismissed for lack of
subject-matter jurisdiction, Baker v. Carr, 369 U. S. 186, Aber1U1thy
v. Carpenter, 373 U.S. 241, Doud v. Hodge, 350 U.S. 485, Flo.rida
Lime Growers v. Jacobsen, 362 U. S. 73, or because relief was thought
to be barred by 28 U. S. C. § 2283, Cameron v. Johnson, 390 U. S.
611.
The appellees also note that § 1253 permits appeals to this Court
only from orders "granting or denying . . . an interlocutory or
permanent injunction . ... " They argue that since the three-judge
court never considered whether an injunction should be granted an
appeal should lie to the Court of Appeals. The three-judge court,
however, entered a judgment "denying all relief sought by plaintiffs."
We therefore have jurisdiction to consider the claims presented.
542 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
We hold, for the reasons that follow, that neither
§ 1343 (3) nor § 2283 warranted dismissal of the appellant's
complaint. Accordingly, we remand the case to
the District Court for consideration of the remaining
issues in this litigation.
I
In dismissing the appellant's complaint, the District
Court held that § 1343 (3) applies only if "personal"
rights, as opposed to "property" rights, are allegedly
impaired. The court relied on the decision of the Court
of Appeals for the Second Circuit in Eisen v. Eastman,
421 F. 2d 560, 563, which rested, in turn, on Mr. Justice
Stone's well-known opinion a generation ago in
Hague v. CIO, 307 U. S. 496, 531. See also, e. g.,
Weddle v. Director, 436 F. 2d 342; Bussie v. Long, 383
F. 2d 766; Howard v. Higgins, 379 F. 2d 227.
This Court has never adopted the distinction between
personal liberties and proprietary rights as a guide to
the contours of § 1343 (3) jurisdiction.6 Today we expressly
reject that distinction.
6 The appellees cite three cases decided by this Court before
Hague v. CIO, 307 U. S. 496, that, they say, support the limitation
of § 1343 (3) jurisdiction to claims of deprivation of personal liberties.
Carter v. Greenhow, 114 U.S. 317; Pleasants v. Greenhow, 114 U.S.
323; Holt v. lndiana Mfg. Co., 176 U.S. 68. The appe!lees also rely
on two recent affirmances, without opinion, of decisions by threejudge
district courts dismissing § 1343 (3) suits on the ground that
the rights allegedly infringed were proprietary. Hornbeak v. Hamm,
393 U. S. 9, aff'g 283 F. Supp. 549 (MD Ala. 1968); Aberna.thy v.
Carpenter, 373 U.S. 241, aff'g 208 F. Supp. 793 (WD Mo. 1962).
All of these cases involved constitutional challenges to the collection
of state taxes. Congress has treated judicial interference with
the enforcement of state tax laws as a subject governed by unique
considerations and has restricted federal jurisdiction accordingly:
"The district courts shall not enjoin, suspend or restrain the assessment,
levy or collection of any tax under State law where a
LYNCH v. HOUSEHOLD FINANCE CORP. 543
538 Opinion of the Court
A
Neither the words of § 1343 (3) nor the legislative
history of that provision distinguishes between personal
and property rights. In fact, the Congress that enacted
the predecessor of §§ 1983 and 1343 (3) seems clearly
to have intended to provide a federal judicial forum
for the redress of wrongful deprivations of property
by persons acting under color of state law.
This Court has traced the origin of § 1983 and its
jurisdictional counterpart to the Civil Rights Act of
1866, 14 Stat. 27. Adickes v. Kress & Co., 398 U. S.
144, 162-163; Monroe v. Pape, 365 U.S. 167, 171, 183-
185.7 That Act guaranteed "broad and sweeping ... proplain,
speedy and efficient remedy may be had in the courts of such
State." 28 U. S. C. § 1341.
We have repeatedly barred anticipatory federal adjudication of the
validity of state tax laws. Dows v. City of Chicago, 11 Wall. 108;
Matthews v. Rodgers, 284 U. S. 521; Great Lakes Dredge & Dock
Co. v. Huffman, 319 U.S. 293; see also Perez v. Ledesma, 401 U.S.,
at 126-127, n. 17 (opinion of BRENNAN , J.). The decisions cited
by appellees may, therefore, be sern as consistent with congressional
restriction of federal jurisdiction in this special class of cases,
and with longstanding judicial policy.
7 Section 2 of the 1866 Act was the model for § 1 of the Civil
Rights Act of 1871, 17 Stat. 13. See n. 9, infra. Sections 1983
and 1343 (3) are direct descendants of § 1 of the Act of 1871. In
1874, Congress consolidated the various federal statutes at large
under separate titles in the Revised Statutes in order to codify
existing law. In the process, the substantive provision of § 1 of the
1871 Act became separated from its jurisdictional counterpart. RC>v.
Stat. § 1979. Although the original substantive provision had prot
ected rights, privileges, or immunities secured by the Constitution ,
the provision in the Revised Statutes was enlarged to provide protection
for rights, privileges, or immunities secured by federal law as
well.
Originally, suits under § 1 of the 1871 Act could be brought in
either circuit or district court. After codification iu 18i4 the juris544
OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
tection" to basic civil rights. Sullivan v. Little
Hunting Park, 396 U. S. 229, 237. Acquisition, enjoyment,
and alienation of property were among those
rights. Jones v. Mayer Co., 392 U. S. 409, 432.8
The Fourteenth Amendment vindicated for all persons
the rights established by the Act of 1866. Monroe,
supra, at 171 ; Hague, supra, at 509-510. "It cannot
be doubted that among the civil rights intended to be
protected from discriminatory state action by the Fourteenth
Amendment are the rights to acquire, enjoy,
own and dispose of property. Equality in the enjoyment
of property rights was regarded by the framers
of that Amendment as an essential pre-condition to the
realization of other basic civil rights and liberties which
the Amendment was intended to guarantee." Shelley
v. Kraemer, 334 U. S. 1, 10. See also, Buchanan v.
Warley, 245 U.S. 60, 74--79; H. Flack, The Adoption of
the Fourteenth Amendment 75-78, 81, 90-97 (1908);
J. tenBroek, The Antislavery Origins of the Fourteenth
Amendment (1951).
dictional grant to the district courts was identical in scope with
the expanded substantive provision, Rev. Stat. § 563 (12). Circuit
court jurisdiction was limited to claimed deprivations of rights,
privileges, or immunities secured by the Constitution or by any
Act of Congress "providing for equal rights." Rev. Stat. § 629 (16).
In 1911, when Congress abolished the circuit courts' original jurisdiction
and merged the two jurisdictional sections into whf!,t is now
§ 1343 (3), the "equal rights" limitation was retained in the revised
jurisdictional grant. Act of Mar. 3, 1911, 36 Stat. 1087. Despite
the different wording of the substantive and jurisdictional
provisions, when the § 1983 claim alleges constitutional violations,
§ 1343 (3) provides jurisdiction and both sections are construed
identically. Dougla.s v. City of Jeannette, 319 U. S. 157, 161.
8 See generally Report of C. Shurz, S. Exec. Doc. No. 2, 39th
Cong., 1st Sess. ( 1865); Cong. Globe, 39th Cong., 1st Sess., 3034--
3035 and App. 219 (1866); J. tenBroek, The Antislavery Origins of
the Fourteenth Amendment (1951); Frank & Munro, The Original
Understanding of "Equal Protection of the Laws," 50 Col. L.
Rev. 131, 144-145 (1950).
LYNCH v. HOUSEHOLD FINANCE CORP. 545
538 Opinion of the Court
The broad concept of civil rights embodied in the
1866 Act and in the Fourteenth Amendment is unmistakably
evident in the legislative history of § 1 of
the Civil Rights Act of 1871, 17 Stat. 13, the direct
lineal ancestor of §§ 1983 and 1343 (3). Not only was
§ 1 of the 1871 Act derived from § 2 of the 1866 Act,0
but the 1871 Act was passed for the express purpose
of "enforc[ing] the Provisions of the Fourteenth Amendment."
17 Stat. 13. And the rights that Congress
sought to protect in the Act of 1871 were described by
the chairman of the House Select Committee that
drafted the legislation as "the enjoyment of life and
liberty, with the right to acquire and possess property
of every kind, and to pursue and obtain happiness and
safety." Cong. Globe, 42d Cong., 1st Sess., App. 69
( 1871) (Rep. Shellabarger, quoting from Garfield v.
Coryell, 6 F. Ca.s. 546, 551-552 (No. 3230) (CCED Pa.)).
9 Section 2 of the 1866 Civil Rights Act, 14 Stat. 27, currently
codified in slightly different form as 18 U. S. C. § 242, read in
pertinent part:
"[AJny person who, under color of any law, statute, ordinance,
regulation, or custom, shall subject, or cause to be subjected, any
inhabitsnt of any State ... to the deprivation of any right secured
or protected by this act, or to different punishment, pains, or penalties
on account of such person having at any time been held in a condition
of slavery or involuntary servitude . . . shall be deemed
guilty of a misdemeanor .. . . " (Emphasis supplied.)
Section 2 provided criminal penalties for any violation of § 1 of the
1866 Act. Screws v. United States, 325 U.S. 91, 98-100. The latter
section enumerated the rights the Act protected, including, inter alia,
the right "to make and enforce contracts, to sue ... to inherit,
purchase, lease, sell, hold, and convey real and personal property .... "
Representative Shellabarger, chairman of the House Select Committee
which drafted the Civil Rights Act of 1871, stated that
"The model for [§ 1 of the 1871 Act] will be found in the second
section of the act of April 9, 1866, known as the 'civil rights act.'
That section provides a criminal proceeding in identically the same
case as this one provides a civil remedy .... " Cong. Globe, 42d
Cong., 1st Sess., App. 68 (1871).
546 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
That the protection of property as well as personal rights
was intended is also confirmed by President Grant's message
to Congress urging passage of the legislation,' 0 and
by the remarks of many members of Congress during the
legislative debates.11
B
In 1875, Congress granted the federal courts jurisdiction
of "all suits of a civil nature at common law
or in equity ... arising under the Constitution or laws
of the United States." 18 Stat. 470. Unlike § 1343 (3),
this general federal-question provision, the forerunner
of 28 U. S. C. § 1331, required that a minimum amount
in controversy be alleged and proved.12 Mr. Justice
Stone's opinion in Hague, supra, as well as the federal
court decisions that followed it, e. g., Eisen v. Eastman,
421 F. 2d 560, reflect the view that there is an apparent
10 The President, in a message dated March 23, 1871, stated:
"A condition of affairs now exists in some States of the Union
rendering life and property insecure . . . . I urgently recommend
such legislation as in the judgment of Congress shall effectually secure
life, liberty, and property, and the enforcement of law in all parts
of the United States." Cong. Globe, 42d Cong., 1st Sess., 244.
11 See, e. g., Cong. Globe, 42d Cong., 1st Sess., 332-334 (Rep.
Hoar); 369-370 (Rep. Monroe); 375-376 (Rep. Lowe); 429 (Rep.
Beatty); 448 (Rep. Butler); 459-461 (Rep. Coburn); 475-476
(Rep. Dawes); 501 (Sen. Frelinghuysen); 568 (Sen. Edmunds);
577 (Sen. Carpenter); 607 (Sen. Pool); 650--651 (Sen. Sumner);
653 (Sen. Osborn) ; 666 (Sen. Spencer).
See also S. Rep. No. 1, 42d Cong., 1st Sess. (1871). Several
months before the passage of the Civil Rights Act of 1871, a Senate
Committee was formed to investigate conditions in the Southern
States. One purpose of the investigation was to "ascertain . . .
whether persons and property are secure .... " Id., at II.
12 The jurisdictional amount was increased from $500 to $2,000
by the Act of Mar. 3, 1887, 24 Stat. 552; to $3,000 by the Act of
Mar. 3, 1911, 36 Stat. 1091; and to $10,000 by the Act of July 25,
1958, 72 Stat. 415.
LYNCH v. HOUSEHOLD FINANCE CORP. 547
538 Opinion of the Court
conflict between §§ 1343 (3) and 1331,13 i. e., that a broad
reading of § 1343 (3) to include all rights secured by
the Constitution would render § 1331, and its amountin-
controversy requirement, superfluous. These opinions
sought to harmonize the two jurisdictional provisions
by construing § 1343 (3) as conferring federal
jurisdiction of suits brought under § 1983 only when
the right asserted is personal, not proprietary.
The initial failure of this reasoning is that the supposed
conflict between §§ 1343 (3) and 1331 simply
does not exist. Section 1343 (3) applies only to alleged
infringements of rights under "color of ... State law,"
whereas § 1331 contains no such requirement. Thus,
for example, in suits against federal officials for alleged
deprivations of constitutional rights, it is necessary to
satisfy the amount-in-controversy requirement for federal
jurisdiction. See Oestereich v. Selective Service
Board, 393 U. S. 233; Bivens v. Six Unknown Named
Agents, 403 U. S. 388.
But the more fundamental point to be made is that
any such contraction of § 1343 (3) jurisdiction is not
13 The plaintiffs in Hague brought suit in a federal district court
to enjoin enforcement of city ordinances prohibiting the distribution
of printed matter and the holding of public meetings without a permit.
They alleged that the ordinances violated the union members'
right of free speech and assembly. Both the District Court and the
Court of Appeals found jurisdiction under §§ 1331 and 1343 (3).
This Court reversed as to jurisdiction under § 1331, since the plaintiffs
had failed to establish the requisite amount in controversy.
Although no opinion commanded a majority, jurisdiction under
§ 1343 (3) was upheld. Mr. Justice Roberts, writing the lead opinion,
expressed the view that the reference in § 1343 to "any right,
privilege or immunity secured by the Constitution" should be interpreted
to cover only alleged violations of the Privileges and Tmmunities
Clause of the Fourteenth Amendment. In Monroe v. Pape,
365 U. S. 167, 170-171, we rejected such a narrow reading of ~imilar
language in § 1983.
548 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
supported by the legislative history of § 1331. The
1875 Act giving the federal courts power to hear suits
arising under Art. III, § 2, of the Constitution was,
like the Act of 1871, an expansion of national authority
over matters that, before the Civil War, had been left
to the States. F. Frankfurter & J. Landis, The Business
of the Supreme Court 65 (1928); Zwu:kler v. Koota, 389
U. S. 241, 245--248; Chadbourn & Levin, Original Jurisdiction
of Federal Questions, 90 U. Pa. L. Rev. 639, 645
( 1942). The Act, therefore, is "clearly ... part of, rather
than an exception to, the trend of legislation which
preceded it." Chadbourn & Levin, mpra, at 645;
Zwickler, supra. There was very little discussion of
the measure before its enactment, in contrast to the
extensive congressional debate that attended the passage
of the Act of 1871." And there is, as a result,
no indication whatsoever that Congress, in a rather
hastily passed measure, intended to narrow the scope
of a provision passed four years earlier as part of major
civil rights legislation.15
14 "[A] study of the history of the bill as revealed by the Congressional
Record yields no reason for its enactment at that time, and
may even be said to raise a strong presumption that it was 'sneak'
legislation. It was originally introduced in the House of Representatives
in the form of a bill to amend the removal statute."
Chadbourn & Levin, Original Jurisdiction of Federal Questions, 90
U. Pa. L. Rev. 639, 642-643 (1942). Nonetheless, the passage
of the Act, despite the lack of debate, has been regarded as the
"culmination of a movement ... to strengthen the Federal Government
against the 8tates." F. Frankfurter & J. Landis, The Business
of the Supreme Court 65 n. 34 ( 1928). See also Maury, The Late
Civil War, Its Effect on Jurisdiction, and on Civil Remedies Generally,
23 Am. L. Reg. 129 (1875).
15 As noted, Congress in 1875 also enlarged tbe scope of § 1983's
predecessor to protect rights secured by federal law as well as rights
secured by the Constitution. See n. 7, supra. Moreover, when
Congress increased the amount-in-controversy requirement to $3,000
in 1911, 36 Stat. 1091, there was no indication that jurisdiction
LYNCH v. HOUSEHOLD FINANCE CORP. 549
538 Opinion of the Court
The "cardinal rule ... that repeals by implication are
not favored," Posada,s v. National City Bank, 296 U. S.
497,503; Jones v. Mayer Co., 392 U.S., at 437, thus counsels
a refusal to pare down § 1343 (3) jurisdictionand
the substantive scope of § 1983-by means of the
distinction between personal liberties and property
rights, or in any other way. The statutory descendants
of § 1 of the Civil Rights Act of 1871 must be given
the meaning and sweep that their origins and their
language dictate.16
Moreover, although the purpose of the amount-incontroversy
requirement is to reduce congestion in the
federal courts, S. Rep. No. 1830, 85th Cong., 2d Sess.
(1958), Congress has substantially lessened its importance
with respect to § 1331 by passing many statutes
that confer federal-question jurisdiction without an
amount-in-controversy requirement.11 So it was that
under what is now § 1343 (3) was to be reduced. In fact, the
legislation explicitly preserved the exemption of action brought
under § 1343 (3) 's predecessor from the amount-in-controversy
requirement.
16 In United States v. Price, 383 U. S. 787, 797, we interpreted
the phrase "rights, privileges, or immunities secured ... by the
Constitution or laws of the United States," contained in 18 U. S. C.
§ 242, to embrace "al,l of the Constitution and laws of the United
States." The similar language in §§ 1983 and 1343 (3) was originally
modeled on § 242's predecessor, § 2 of the Civil Rights Act of 1866.
See n. 9, supra. In Price, supra, we said that " [ w] e are not at liberty
to seek ingenious analytical instruments" to avoid giving a congressional
enactment the scope that its language and origins require.
Id., at 801.
11 A series of particular statutes grant jurisdiction, without regard
to the amount in controversy, in virtually all areas that otherwise
would fall under the genera.I federal-question statute. Such special
statutes cover: admiralty, maritime, and prize cases, 28 U. S. C.
§ 1333; bankruptcy matters and proceedings, 28 U. S. C. § 1334; review
of orders of the Interstate Commerce Commission, 28 U. S. C.
§ 1336; cases arising under any Act of Congress regulating commerce,
550 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
when Congress increased the jurisdictional amount from
$3,000 to $10,000, Act of July 25, 1958, 72 Stat. 415, it
made clear that its primary concern was to reduce the
federal judiciary's workload with regard to cases arising
under federal diversity jurisdiction, 28 U. S. C. § 1332,
not under § 1331.18
A final, compelling reason for rejecting a "personal
liberties" limitation upon § 1343 (3) is the virtual im-
28 U. S. C. § 1337; patent, copyright, and trademark cases, 28
U. S. C. § 1338; postal matters, 28 U. S. C. § 1339; internal revenue
and custom duties actions, 28 U.S. C. § 1340; election disputes, 28
U. S. C. § 1344; cases in which the United States is a party, 28
U. S. C. §§ 1345, 1346, 1347, 1348, 1349, 1358, and 1361; certain
tort actions by aliens, 28 U. S. C. § 1350; actions on bonds executed
under federal law, 28 U.S. C. § 1352; cases involving Indian allotments,
28 U.S. C. § 1353; and injuries under federal law, 28 U.S. C.
§ 1357.
18 "While this bill applies the $10,000 minimum limitation to cases
involving Federal questions, its effect will be greater on diversity
cases since many of the so-called Federal question cases will be exempt
from its provisions." S. Rep. No. 1830, 85th Cong., 2d Sess., 6
(1958). The Senate report was echoing the finding of the .Judicial
Conference's Committee on Jurisdiction and Venue that raising the
jurisdictional amount would "have significant effect mainly upon
diversity cases." Id., at 22.
Recent studies have demonstrated that the amount-in-controversy
requirement still has "relatively little impact on the volume of federal
question litigation." American Law Institute, Study of the Division
of Jurisdiction Between State and Federal Courts 172, 489--492
(1969). See also, Warren, Address to the American Law Institute,
1960, 25 F. R. D. 213; C. Wright, Law of Federal Courts 107 (2d ed.
1970). Information from the Administrative Office of the United
States Courts shows that a majority of private federal-question cases
involve less than $10,000. American Law Institute, supra, at 491.
Although litigation involving federal civil rights is increasing, such
actions constituted only 4.6% of the suits instituted in district courts
during the 1970 fiscal year. Administrative Office of the United
States Courts, 1970 Report, II-31.
LYNCH v. HOUSEHOLD FINANCE CORP. 551
538 Opinion of the Court
possibility of applying it.'" The federal courts have
been particularly bedeviled by "mixed" cases in which
both personal and property rights are implicated, and
the line between them has been difficult to draw with
any consistency or principled objectivity.20 The case
19 As noted above, we have never adopted the property rightspersonal
liberties test for § 1343 (3) jurisdiction. In Eisen v. Eastman,
421 F. 2d 560, the Court of Appeals for the Second Circuit
said that application of the test would bar many welfare claims.
Id., at 566 n. 10. We have, however, continually found § 1343 (3)
jurisdiction in such cases. See, e. g., California Department of Human
Resources v. Java, 402 U.S. 121; Rosado v. Wyman, 397 U. S.
397; King v. Smith, 392 U.S. 309; Goldberg v. Kelly, 397 U.S. 254;
Dandridge v. Williams, 397 U. S. 471; Damico v. California, 389
U.S. 416.
See also Rinaldi v. Yeager, 384 U. S. 305; Swarb v. Lennox, ante,
p. 191; Lindsey v. Normet, ante, p. 56. These cases, arguably,
involved only deprivations of property, but we found § 1343 (3)
jurisdiction nonetheless.
20 Difficulty in application has been one source of the cnmmPnh1.-
tors' dissatisfaction with the "personal liberties" limitation. See generally
Note, 24 Vand. L. Rev. 990 (1971); Laufer, Hague v. C. l. 0.:
Mr. Justice Stone's Test of Federal Jurisdiction-A Reappraisal,
19 Buff. L. Rev. 547 (1970); Note, 1970 Duke L. J. 819; Note, 43
N. Y. U. L. Rev. 1208 (1968); Note, 66 Harv. L. Rev. 1285 (1953).
The federal courts have produced inconsistent results regarding
§ 1343 (3) jurisdiction of welfare claims. Compare Roberts v.
Harder, 440 F. 2d 1229, with Alvarado v. Schmidt, 317 F. Supp.
1027. See also n. 19, supra. Yet, without always explaining why
such interests are "personal" rather than "proprietary," courts have
consistently found civil rights jurisdiction over suits alleging discrimination
in the issuance of business licenses. See, e. g., Barnes
v. Merritt, 376 F. 2d 8; Glicker v. Michigan Liquor Cont.rot Comm'n,
160 F. 2d 96. Similarly, claims involving discrimination in employment,
e. g.1 Birnbaum v. Trussell, 371 F. 2d 672, or termination of
leases in public housing projects, e. g., Escalera v. New York City
Hou.sing Authority, 425 F. 2d 853, are often found cognizable under
§ 1343 (3). How such "personal" interests are to be distinguished
from the "property" interest in wages deposited in a savings account,
as in this case, is not readily discernible. Compare this
case with Santiago v. McElroy, 319 F. Supp. 284.
552 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
before us presents a good example of the conceptual
difficulties created by the test. 21
Such difficulties indicate that the dichotomy between
personal liberties and property rights is a false one.
Property does not have rights. People have rights.
The right to enjoy property without unlawful deprivation,
no less than the right to speak or the right to
travel, is in truth a "personal" right, whether the "property"
in question be a welfare check, a home, or a savings
account. In fact, a fundamental interdependence exists
between the personal right to liberty and the personal
right in property. Neither could have meaning
without the other. That rights in property are basic
civil rights has long been recognized. J. Locke, Of Civil
Government 82-85 (1924); J. Adams, A Defence of the
Constitutions of Government of the United States of
America, in F. Coker, Democracy, Liberty, and Property
121-132 (1942); 1 W. Blackstone, Commentaries *138-
140. Congress recognized these rights in 1871 when it
enacted the predecessor of§§ 1983 and 1343 (3). We do
no more than reaffirm the judgment of Congress today.
II
Under 28 U. S. C. § 2283, a federal court may not
"grant an injunction to stay proceedings in a State court
except as expressly authorized by Act of Congress, or
where necessary in aid of its jurisdiction, or to protect
or effectuate its judgments." The District Court relied
upon this statute as an alternative ground for the dis-
21 The District Court found that access to funds held in a
savings account was indistinguishable from simple ownership of
money. Thus garnishment of that account did not infringe personal
rights. Mrs. Lynch, however, alleged that because of the
garnishment she was unable to pay her rent on time and encountered
difficulty maintaining her family on a minimally adequate
diet. If these allegations are true, Mrs. Lynch's personal liberty
could be profoundly affected by garnishment of her savings.
LYNCH v. HOUSEHOLD FINANCE CORP. 553
538 Opinion of the Court
missal of the appellant's complaint. The appellant contends
that § 2283 is inapplicable to this case because
prejudgment garnishment under Conn. Gen. Stat.
Rev. § 52-329 22 is not a proceeding in state court. We
agree.23
In Connecticut, garnishment is instituted without judicial
order. Ibid.; 1 E. Stephenson, Connecticut Civil
Procedure 151 (2d ed. 1970) .24 The levy of garnishment--
usually effected by a deputy sheriff-does not
confer jurisdiction on state courts and may, in fact,
22 The statute provides:
"When the effects of the defendant in any civil action in which
a judgment or decree for the payment of money may be rendered
are concealed in the hands of his agent or trustee so that they
cannot be found or attached, or when a debt is due from any
person to such defendant, or when any debt, legacy or distributive
share is or may become due to such defendant from the estate of
any deceased person or insolvent debtor, the plaintiff may insert
in his writ a direction to the officer to leave a true and attested
copy thereof and of the accompanying complaint, at least twelve
day~ in the case of the superior court or the court of common
pleas, or six days in the case of the circuit court, before the session
of the court to which it is returnable, with such agent, trustee or
debtor of the defendant, or, as the case may be, with the executor,
administrator or trustee of such estate, or at the usual place of
abode of such garnishee; and from the time of leaving such copy
all the effects of the defendant in the hands of any such garnishee,
and any debt due from any such garnishee to the defendant, and any
debt, legacy or distributive share, due or that may become due
to him from such executor, administrator or trustee in insolvency,
not exempt from execution, shall be secured in the hands of such
garnishee to pay such judgment as the plaintiff may recover."
~ 3 Cf. Roudebush v. Hartke, ante, p. 15.
24 Garnishment occurs at the beginning of the suit upon the
direction of the plaintiff's lawyer, acting as a Commissioner of
the Superior Court. Conn. Gen. Stat. Rev. §§ 51-85, 52- 89. "The
plaintiff or his attorney merely includes in his writ of summons a
direction to the sheriff to make an attachment or serve garnishment
process." 1 E. Stephen,:on, Connecticut Civil Procedure 151 (2d
ed. 1970).
554 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
occur prior to commencement of an alleged creditor's
suit. Young v. Margiotta, 136 Conn. 429, 433, 71 A. 2d
924, 926. Despite the state court's control over the
plaintiff's docketed case, garnishment is "distinct from
and independent of that action." Potter v. Appleby, 136
Conn. 641, 643, 73 A. 2d 819, 820. The garnished property
is secured, not under authority of the court, but
merely in the hands of the garnishee. Conn. Gen. Stat.
Rev. § 52-329. Prejudgment garnishment is thus levied
and maintained without the participation of the state
courts.
In this case, the appellant sought to enjoin garnishment
proceedings, not the finance company's suit on
the promissory note. The District Court noted that
"garnishment may be separated from the underlying in
personam action," but held that § 2283 was a bar because
the interference with existing creditors' suits caused
by such an injunction "probably would be substantial."
318 F. Supp., at 1115. According to the appellees,
interference would occur because garnishment is necessary
to make any eventual judgment in the pending
state suit effective. Hill v. Martin, 296 U. S. 393, 403.
This argument is not persuasive in the context of the
Connecticut prejudgment garnishment scheme. Garnishment
might serve to make a subsequent judgment
effective. Cf. Hill, supra; Manufacturers Record Publishing
Co. v. Lauer, 268 F. 2d 187, cert. denied, 361
U. S. 913; Furnish v. Board of Medical Examiners of
California, 257 F. 2d 520, cert denied, 358 U. S. 882.
But the garnishment was, in this case, an action taken
by private parties who were not proceeding under a
court's supervision 25 and who were using, as agents,
25 The fact that the plaintiffs' attorneys are, formally, officers
of the court does not convert the Connecticut garnishment process
into a state court proceeding for § 2283 purposes, since the attorneys
LYNCH v. HOUSEHOLD FINANCE CORP. 555
538 Opinion of the Court
state officials who were themselves not acting pursuant
to a court order or under a court's authority.
In Hill, supra, we said that the "proceeding" that
a federal court is forbidden to enjoin "includes all steps
taken or which may be taken in the state court or by
its officers from the institution to the close of the final
process." Id., at 403 (emphasis supplied). In this case,
the garnishment occurred before the appellee corporation
had served the appellant with process.
More important, the state court and its officers are
insulated from control over the garnishment. Connecticut
appears to be one of the few States authorizing an
attorney for an alleged creditor to garnish or attach
property without any participation by a judge or clerk
of the court. Stephenson, supra, at 230. A person whose
account has been seized can get only minimal relief at
best.26 The state courts have held that they cannot
enjoin a garnishment on the ground that it was levied
unconstitutionally. Michael's Jewelers v. Handy, 6
Conn. Cir. 103, 266 A. 2d 904; Harris v. Barone, 147
Conn. 233, 158 A. 2d 855. One assumption underlying
§ 2283 is that state courts will vindicate constitutional
claims as fairly and efficiently as federal courts. But
this assumption cannot obtain when the doors of the
have complete discretion to issue a writ. See n. 24, supra; Sharkiewicz
v. Smith, 142 Conn. 410, 114 A. 2d 691; Sachs v. Nussenbaum,
92 Conn. 682, 104 A. 393.
26 The courts have no authority to inquire into the probable
validity of the creditor's claim, or whether special circumstances
warrant provisional security for an alleged creditor. Sachs v.
Nussenbaum, 92 Conn., at 689, 104 A., at 395. Prior to the termination
of the litigation, a garnishment may be reduced or dissolved only
upon a showing that the garnishment is excessive-i. e., in excess of
the creditor's apparent claim-or upon substitution of a bond with
surety. Conn. Gen. Stat. Rrv. §§ 52-302 and 52-.'304. Black Watch
Farms v. Dick, 323 F. Supp. 100, 101-102. This involvement has
been termed "meager." Stephenson, supra, at 154.
556 OCTOBER TERM, 1971
WHITE, J., dissenting 405U.S.
state courts are effectively closed to a person seeking
to enjoin a garnishment on constitutional grounds.
Because of the extrajudicial nature of Connecticut
garnishment, an injunction against its maintenance is
not, therefore, barred by the terms of § 2283. In light
of this conclusion, we need not decide whether § 1983
is an exception to § 2283 "expressly authorized by Act
of Congress." We have explicitly left that question
open in other decisions.21 And we may put it to one
side in this case because the state act that the federal
court was asked to enjoin was not a proceeding "in
a State court" within the meaning of § 2283.
We conclude, therefore, that the District Court had
jurisdiction to entertain the appellant's suit for an injunction
under § 1983. Accordingly, the judgment before
us is reversed, and the case remanded for further
proceedings consistent with this opinion.
It i.s so ordered.
MR. JusTICE POWELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of this case.
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE
and MR. JusTICE BLACKMUN join, dissenting.
I agree with the Court that federal jurisdiction under
28 U. S. C. § 1343 is not limited to the adjudication of
personal rights and if the disposition of this case turned
solely on that issue I would without reservation join
in the majority opinion. But I cannot agree either with
the approach that the majority takes to the anti-
27 See Dombrowski v. Pfister, 380 U.S. 479,484 n. 2; Cameron v.
Johnson, 390 U.S., at 613 n. 3; Younger v. Harris, 401 U.S. 37, 54.
The circuits have divided on the question. Cf., e. g., Cooper v.
Hutchinson, 184 F. 2d 119, and Baines v. City of Danville, 337
F. 2d 579.
LYNCH v. HOUSEHOLD FINANCE CORP. 557
538 WHITE, J., dissenting
injunction statute, 28 U. S. C. § 2283, or its conclusion
that the statute does not bar this suit. I do not mean
to suggest that appellants' due process attack on the
Connecticut garnishment statute is not substantial. It
obviously is. Sniadach v. Family Finance Corp., 395
U. S. 337 (1969). Nevertheless, in my view, appellants
should be required to press their constitutional attack
in the state courts.
In Connecticut, garnishment or attachment is one
method of beginning a lawsuit. Conn. Gen. Stat. Rev.
§ 52-329; 1 E. Stephenson, Connecticut Civil Procedure
156-157, 232-237 (2d ed. 1970). Of course,
the requisite personal service upon a defendant is
necessary to obtain in personam jurisdiction, Conn.
Gen. Stat. Rev. § 52-54, as well as to secure an
effective garnishment, Stephenson, supra, at 244, but
as a matter of right in certain kinds of civil actions
a plaintiff may simultaneously garnish a defendant's
bank account and serve a summons upon the defendant,
together with a complaint stating the nature of the underlying
action. Conn. Gen. Stat. Rev.§ 52-329. A state
court obtains jurisdiction of the action and of questions
concerning the garnishment when return of process is
made to that court. Stephenson, supra, at 67. Garnishment
is "ancillary to the main action for damages and
cannot exist without such action." Id., at 143. Its
purpose, as the majority notes, is to secure property that
will thus be made available for the satisfaction of a
judgment. Ibid. A writ of garnishment may be issued
by a judge of the court of jurisdiction, Conn. Gen. Stat.
Rev. § 52-89 (Supp. 1969), but because garnishment in
Connecticut, unlike most other States, is a matter of
right and requires no prior judicial determination, the
writ may also be issued by a court clerk or licensed
attorney. Conn. Gen. Stat. Rev. § 51-85. In either
558 OCTOBER TERM, 1971
WHITE, J., dissenting 405 U.S.
case, the matter is accomplished simply by completing
a form.
Appellant Lynch brought this federal action to enjoin
the garnishment more than seven months after the writ
had been executed, the summons and complaint served,
process returned, and the case docketed in Connecticut
court. At the earliest moment that a federal injunction
could have issued the state court proceeding was
well under way. Despite this, the majority purports
to sever the garnishment from the action that underlies
it. The Court reasons that Connecticut garnishment
is not a proceeding in state court because it is
carried out by private parties not acting pursuant to
a court order. Ante, at 554-555.
If the majority means that garnishment is a severable
matter, independent of the main suit and for that
reason outside of § 2283, then I would suppose it permissible
for a federal court to enjoin any garnishment
or attachment, whether obtained at the inception of a
lawsuit, while it is in progress, or after judgment and
for the purpose of execution. This approach to the
anti-injunction statute, articulated in Simon v. Southern
R. Co., 236 U. S. 115, 124-125 ( 1915), was, I
thought, laid to rest in Hill v. Martin, 296 U. S. 393,
403 ( 1935), where the Court construed "proceedings
in any court of a State" comprehensively and as
embracing
"all steps taken or which may be taken in the state
court or by its officers from the institution to the
close of the final process. It applies to appellate as
well as to original proceedings; and is independent
of the doctrine of res judicata. It applies alike to
action by the court and by its ministerial officers;
applies not only to an execution issued on a judgment,
but to any proceeding supplemental or an538
LYNCH v. HOUSEHOLD FINANCE CORP. 559
WHITE, J., dissenting
cillary taken with a view to making the suit or
judgment effective." (Footnotes omitted.)
The Court today embarks on quite a different course
and rejects not only Hill v. Martin but also a substantial
body of federal court of appeals law to the effect
that § 2283 bars federal court interference with executions
on state court judgments. E. g., Manufacturers
Record Publishing Co. v. Lauer, 268 F. 2d 187 (CA5), cert.
denied, 361 U.S. 913 (1959); Furnish v. Board of Medical
Examiners of California, 257 F. 2d 520 ( CA9), cert.
denied, 358 U.S. 882 (1958); Norwood v. Parenteau, 228
F. 2d 148 (CA8 1955), cert. denied, 351 U.S. 955 (1956).1
The Court also suggests that § 2283 is inapplicable
here because no Connecticut court authorized the
garnishment. Its view apparently ig that a federal injunction
would therefore not interfere with state court
processes. Until now, however, it has been reasonably
clear that § 2283 cannot be avoided by the simple expedient
of enjoining parties instead of judges. Oklahoma
Packing Co. v. Oklahoma Gas & Electric Co., 309 U. S.
4, 9 ( 1940). Moreover, the Court's rationale proves
too much. Contrary to the views expressed in Hill v.
Martin, supra, state court ministerial officers could be
enjoined at any time and for any purpose in the course
of a litigation and without regard to § 2283. In addition,
parties to state court litigation could be enjoined
from performing any one or all of the tasks essential
to the orderly progress of litigation so long as the acts
in question are not carried out pursuant to court order.
Depositions of parties and witnesses, interrogatories to
parties, and subpoenas for witnesses are commonly pur-
1 Some confusion persists whether a federal court may, consistently
with § 2283, enjoin the op<'ration of a state court judgment procured
by fraud. See C. \.Vright, Law of Federal Courts 179-181 (2d ed.
1970). That question is not presented here.
560 OCTOBER TERM, 1971
WHITE, J., dissenting 405 u. s.
sued without resort to a judge. Are these and other
functions not performed under court order now subject
to attack in federal court at the option of the offended
state court litigant?
Today's decision will, I fear, create confusion by making
the applicability of § 2283 turn on rules that are
difficult to apply. The potential for conflict between
state and federal courts will increase and the price for
judicial errors will be paid by litigants and courts alike.
The common sense of the matter, it seems to me, is that
the garnishment at issue here is part and parcel of a
state court proceeding now under way. Garnishment in
Connecticut may be characterized as separate from the
underlying action, but it is nonetheless a proceeding and
derives its legitimacy from the suit it accompanies. At
the time this federal action was brought, return of process
had long since been completed and the state court had
acquired jurisdiction of a straightforward cause of action,
including questions of the legitimacy and constitutionality
of the garnishment.
It also seems to me that, quite apart from § 2283, today's
holding departs from such cases as Stefanelli v.
Minard, 342 U.S. 117 (1951), and Perez v. Ledesma, 401
U. S. 82 (1971), which counsel against atomizing state
litigation by enjoining, for example, the introduction of
illegally obtained evidence, as well as from the more general
admonitions of Younger v. Harris, 401 U. S. 37
(1971); Samuels v. Mackell, 401 U. S. 66 (1971); Boyle
v. Landry, 401 U. S. 77 (1971); and Perez v. Ledesma,
supra, against improvident exercise of a federal court's
equitable powers to frustrate or interfere with the
operations of state courts by adjudicating federal
questions that are involved in state court litigation
and which can be adjudicated there. As the Court
said in Stefanelli, if such interventions were to be
permitted, "[ e] very question of procedural due procLYNCH
v. HOUSEHOLD FINANCE CORP. 561
538 WHITE, J., dissenting
ess of law-with its far-flung and undefined rangewould
invite a flanking movement against the system of
State courts by resort to the federal forum, with review
if need be to this Court, to determine the issue." 342
U. S., at 123. Such resort, if permitted, "would provide
ready opportunities, which conscientious counsel might
be bound to employ, to subvert the orderly, effective
prosecution of local crime in local courts." Id., at 123-
124.
Appellee Barrett invokes Younger and companion cases
as a ground for affirming the judgment of the District
Court. Of course, those cases involved federal injunctions
against state criminal proceedings, but the relevant
considerations, in my view, are equally applicable where
state civil litigation is in progress, as is here the case.2
I would affirm the judgment of the court below.
2 I thus would affirm whether or not 42 U. S. C. § 1983 is an
exception to the bar of § 2283. That question is at issue in
Mitchum v. Foster, No. 70-27, now sub judice.
562 OCTOBER TERM, 1971
Syllabus 405 U.S.
FORD MOTOR co. V. UNITED STATES ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
No. 70-113. Argued November 18, 1971-
Decided March 29, 1972
In this divestiture action under § 7 of the Celler-Kefauver Antimerger
Act, the Government challenged the acquisition by appellant,
Ford, the second largest automobile manufacturer, of certain
assets of Electric Autolite Co. (Autolite), an independent manufacturer
of spark plugs and other automotive parts. The acquisition
included the Autolite trade name, Autolite's only domestic
spark plug plant, and extensive rights to its nationwide distribution
organization for spark plugs and batteries. The brand used
in the spark plug replacement market (aftermarket) has historically
been the same as the original equipment (OE) brand.
Autolite and other independents had furnished manufacturers with
OE plugs at or below cost, seeking to recoup their losses by
profitable aftermarket sales. Ford, which previously had bought
all its spark plugs from independents and was the largest purchaser
from that source, made the Autolite acquisition in 1961 for
the purpose of participating in the aftermarket. At about that
time General Motors (GM) had about 30% of the domestic spark
plug market. Autolite had 15%, and Champion, the only other
major independent, had 50% (which declined to 40% in 1964, and
33% in 1966). The District Court found that the industry's
oligopolistic structure encouraged maintenance of the OE tie and
that spark plug manufacturers, to the extent that they are not
owned by auto makers, will compete more vigorously for private
brand sales in the aftermarket. The court held that the acquisition
of Autolite violated § 7 since its effect "may be substantially
to lessen competition" in automotive spark plugs because: (1) "as
both a prime candidate to manufacture and the major customer
of the dominant member of the oligopoly," Ford's pre-acquisition
position was a moderating influence on the independent companies,
and (2) the acquisition significantly foreclosed to independent
spark plug manufacturers access to the purchaser of a substantial
share of the total industry output. After hearings, the court
ordered the divestiture of the Autolite plant and trade name
because of the industry's oligopolistic structure, which encouraged
FORD MOTOR CO. v. UNITED STATES 563
562 Syllabus
maintenance of the OE tie. The court stressed that it was in the
self-interest of the OE spark plug manufacturers to discourage
private-brand sales but noted that changes in marketing methods
indicated a substantial growth in the private-brand sector of the
spark plug market, which, if allowed to develop without unlawful
restraint, may account for 17% of the total aftermarket by 1980.
Additionally, the court enjoined Ford for 10 years from manufacturing
spark plugs; ordered it for five years to buy one-half
its annual requirements from the divested plant under the
"Autolite" name, during which time it was prohibited from using
its own name on spark plugs; and for 10 years ordered it to
continue its policy of selling to its dealers at prices no less than
its prevailing minimum suggested jobbers' selling price. In contesting
divestiture, Ford argued that under its ownership Autolite
became a more effective competitor against Champion and
GM than it had been as an independent and that other benefits
resulted from the acquisition. Held:
1. The District Court correctly held that the effect of Ford's
acquisition of the Autolite spark plug assets and trade name may
be substantially to lessen competition in the spark plug business
and thus to violate § 7 of the Geller-Kefauver Antimerger Act;
and that the alleged beneficial effects of the merger did not save
it from illegality under that provision, United States v. Philadelphia
National Bank, 374 U. S. 321. Pp. 569-571.
2. The relief ordered by the District Court was proper. Pp.
571-578.
(a) Divestiture is necessary to restore the pre-acquisition
market structure, in which Ford was the leading purchaser from
independent sources, and in which a substantial segment of the
market was open to competitive selling. After the divestiture,
with Ford again as a purchaser of spark plugs, competitive pressures
for its business will be generated and the anti-competitive
consequences of its entry as a manufacturer will be eliminated.
Pp. 573-575.
(b) The ancillary injunctive provisions are necessary to give
the divested plant an opportunity to re-establish its competitive
position and to nurture the competitive forces at work in the
marketplace. Pp. 575-578.
286 F. Supp. 407, 315 F. Supp. 372, affirmed.
DouGus, J., delivered the opinion of the Court, in which BRENNAN,
WHITE, and MARSHALL, JJ., joined and in which (as to Part I
564 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
and part of Part II) BLACKMUN, J., joined. STEWART, J., filed an
opinion concurring in the result, post, p. 579. BURGER, C. J., post,
p. 582, and BLACKMUN, J., post, p. 595, filed opinions concurring in
part and dissenting in part. POWELL and REHNQUIST, JJ., took no
part in the consideration or decision of the case.
Whitney North Seymour argued the cause for appellant.
With him on the briefs were Eleanor M. Fox,
Michael R. Goldenberg, George H. Hempstead III, and
L. Homer Surbeck.
Deputy Solicitor General Friedman argued the cause
for the United States. With him on the brief were
Solicitor General Griswold, Assistant Attorney General
McLaren, Wm. Terry Bray, Irwin A. Seibel, and Will-
iam H. McManus.
Melvin Lashner filed a brief for Zenith Vinyl Fabrics
Corp. as amicus curiae.
MR. JUSTICE DOUGLAS delivered the opinion of the
Court.
This is a direct appeal under § 2 of the Expediting Act,
32 Stat. 823, as amended, 15 U. S. C. § 29, from a judgment
of the District Court (286 F. Supp. 407, 315 F. Supp.
372), holding that Ford Motor Co. (Ford) violated § 7 of
the Celler-Kefauver Antimerger Act 1 by acquiring certain
assets from Electric Autolite Co. (Autolite). The
assets included the Autolite trade name, Autolite's only
1 Section 7 provides in part:
"No corporation engaged in commerce shall acquire, directly or
indirectly, the whole or any part of the stock or other share capital
and no corporation subject to the jurisdiction of the Federal Trade
Commission shall acquire the whole or any part of the assets of
another corporation engaged also in commerce, where in any line
of commerce in any section of the country, the effect of such
acquisition may be substantially to lessen competition, or to tend
to create a monopoly." 38 Stat. 731, as amended, 64 Stat. 1125,
15 U. S. C. § 18.
FORD MOTOR CO. v. UNITED STATES 565
562 Opinion of the Court
spark plug plant in this country (located at New Fostoria,
Ohio), a battery plant, and extensive rights to its nationwide
distribution organization for spark plugs and batteries.
The present appeal 2 is limited to that portion
of the judgment relating to spark plugs and ordering
Ford to divest the Autolite name and the spark plug
plant. The ancillary injunctive provisions are also here
for review.
I
Ford, the second-leading producer of automobiles, General
Motors, and Chrysler together account for 90% of
the automobile production in this country. Though Ford
makes a substantial portion of its parts, prior to its acquisition
of the assets of Autolite it did not make spark
plugs or batteries but purchased those parts from independent
companies.
The original equipment of new cars, insofar as spark
plugs are concerned, is conveniently referred to as the
OE tie. The replacement market is referred to as the
aftermarket. The independents, including Autolite, furnished
the auto manufacturers with OE plugs at cost or
less, about six cents a plug, and they continued to sell
at that price even when their costs increased threefold.
The independents sought to recover their losses on OE
sales by profitable sales in the af termarket where the
requirement of each vehicle during its lifetime is about
five replacement plug sets. By custom and practice
among mechanics, the af termarket plug is usually the
same brand as the OE plug. See generally Hansen &
Smith, The Champion Case: What Is Competition?, 29
Harv. Bus. Rev. 89 (1951).
Ford was anxious to participate in this af termarket
and, after various efforts not relevant to the present case,
concluded that its effective participation in the after-
2 We noted probable jurisdiction June 7, 1971. 403 U.S. 903.
566 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
market required "an established distribution system with
a recognized brand name, a full line of high volume
service parts, engineering experience in replacement designs,
low volume production facilities and experience,
and the opportunity to capitalize on an established car
population."
Ford concluded it could develop such a division of its
own but decided that course would take from five to eight
years and be more costly than an acquisition. To make
a long story short, it acquired certain assets of Autolite in
1961.
General Motors had previously entered the spark plug
manufacturing field, making the AC brand. The two
other major domestic producers were independents-
Autolite and Champion. When Ford acquired Autolite,
whose share of the domestic spark plug market was about
15%, only one major independent was left and that was
Champion, whose share of the domestic market declined
from just under 50% in 1960 to just under 40% in 1964
and to about 33% in 1966. At the time of the acquisition,
General Motors' market share was about 30%.
There were other small manufacturers of spark plugs but
they had no important share of the market.a
The District Court held that the acquisition of Autolite
violated § 7 of the Celler-Kefauver Antimerger Act
8 Autolite did not sell all of its assets to Ford and changed the
name of the parts of its business that it retained to Eltra Corp.
which in 1962 began manufacturing spark plugs in Decatur, Alabama,
under the brand name Prestolite. But in 1964 it had only 1.6%
of the domestic business. Others included Atlas, sponsored by
Stsndard Oil of New Jersey, with 1.4% of that business, and Riverside,
sponsored by Montgomery Ward, with 0.6%. As further stated
by the District Court :
"Most of the manufacturing for the private labels among these
marketers is done by ELTRA and General Battery and Ceramic
Corporation, the only producers of any stature at all after the Big
Three." 286 F. Supp. 407, 435.
FORD MOTOR CO. v. UNITED STATES 567
562 Opinion of the Court
because its effect "may be substantially to lessen competition."
4 It gave two reasons for its decision.
First, prior to 1961 when Ford acquired Autolite it had
a "pervasive impact on the aftermarket," 315 F. Supp.,
at 375, in that it was a moderating influence on Champion
and on other companies derivatively. It explained that
reason as follows:
"An interested firm on the outside has a twofold
significance. It may someday go in and set the
stage for noticeable deconcentration. While it
merely stays near the edge, it is a deterrent to current
competitors. United States v. Penn-Olin Chemical
Co., 378 U. S. 158 ... (1964). This was Ford
uniquely, as both a prime candidate to manufacture
and the major customer of the dominant member of
the oligopoly. Given the chance that Autolite would
have been doomed to oblivion by defendant's grassroots
entry, which also would have destroyed Ford's
soothing influence over replacement prices, Ford may
well have been more useful as a potential than it
4 The words were suggested by the Federal Trade Commission
which told the Congress:
"Under the Sherman Act, an acquisition is unlawful if it create.s
a monopoly or constitutes an at.tempt to monopolize. Imminent
monopoly may appear when one large concern acquires another,
but it is unlikely to be perceived in a small acquisition by a large
enterprise. As a large concern grows through a series of such
small acquisitions, its accretions of power are individually so minute
as to make it difficult to use the Sherman Act test against them. "
S. Rep. No. 1775, 81st Cong., 2d Sess., 5.
The Committee defined the words "may be" as follows:
"The concept of reasonable probability conveyed by these words
is a necessary element in any statute which seeks to arrest restraints
of trade in their incipiency and before they develop into full-fledged
restraints violative of the Sherman Act. A requirement of certainty
and actuality of injury to competition is incompatible with any effort
to supplement the Sherman Act by reaching incipient restraints."
Id., at 6.
568 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
would have been as a real producer, regardless how
it began fabrication. Had Ford taken the internalexpansion
route, there would have been no illegality;
not, however, because the result necessarily would
have been commendable, but simply because that
course has not been proscribed." 286 F. Supp., at
441.
See also FTC v. Procter & Gamble Co., 386 U. S. 568;
United States v. Penn-Olin Chemical Co., 378 U. S. 158.
Second, the District Court found that the acquisition
marked "the foreclosure of Ford as a purchaser of about
ten per cent of total industry output." 315 F. Supp., at
375. The District Court added:
"In short, Ford's entry into the spark plug market
by means of the acquisition of the factory in Fostoria
and the trade name 'Autolite' had the effect of
raising the barriers to entry into that market as
well as removing one of the existing restraints upon
the actions of those in the business of manufacturing
spark plugs.
"It will also be noted that the number of competitors
in the spark plug manufacturing industry closely
parallels the number of competitors in the automobile
manufacturing industry and the barriers to
entry into the auto industry are virtually insurmountable
at present and will remain so for the
foreseeable future. Ford's acquisition of the Autolite
assets, particularly when viewed in the context
of the original equipment (OE) tie and of GM's
ownership of AC, has the result of transmitting the
rigidity of the oligopolistic structure of the automobile
industry to the spark plug industry, thus
reducing the chances of future deconcentration of
the spark plug market by forces at work within that
market." Ibid.
FORD MOTOR CO. v. UNITED STATES 569
562 Opinion of the Court
See also FTC v. Comolidated Foods Corp., 380 U. S.
592; Brown Shoe Co. v. United States, 370 U. S. 294;
United States v. Du Pont & Co., 353 U. S. 586.
We see no answer to that conclusion if the letter and
spirit of the Celler-Kefauver Antimerger Act 5 are to
be honored. See United States v. Philadelphia National
Bank, 374 U. S. 321, 362-363; United States v. Penn-
Olin Chemical Co., 378 U. S., at 170-171; Brown Shoe
Co. v. United States, 370 U. S., at 311-323.
It is argued, however, that the acquisition had some
beneficial effect in making Autolite a more vigorous and
5 Congressman Celler in testifying for the Celler-Kefauver bill
that was the 1950 amendment to § 7 of the Clayton Act said:
"[T] he worth of the individual is the worth of the Nat ion; no
more and no less. That which strengthens the individual bolsters
the Nation; that which dwarfs the individual belittles the Nation."
Hearing on H. R. 988 et seq. before Subcommittee No. 3 of the House
Committee on the Judiciary, 81st Cong., 1st Sess., ser. 10, pp. 14-15
(1949).
Senator Kefauver spoke in the same vein:
"[I]f our democracy is going to survive in this country we must
keep competition, and we must see to it tha.t the basic materials
and resources of the country are available to any litt.le fellow who
wants to go into business.
"Charts and statistics will show that every year there is more
and more concentration, with more and more corporations purchasing
out their competitors, so that unless this trend is halted we are
going to come to a place where the basie industries and business of
America are controlled by a very, very small group of a small
number of corporations.
"We have already reached that point in a great many of our
basic industries. The evil of that course is quite apparent. When
people lose their economic freedom, they lose their political freedom.
"When the destiny of people over the land is dependent upon
the decision of two or three people in a central office somewhere,
then the people are going to demand that the Government do something
about it.
"When it reaches that stage, it is going to result in statism of one
sort or another; and whichever sort it may be, one is equally as
bad as another, as I see it." Id., at 12.
570 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
effective competitor against Champion and General
Motors than Autolite had been as an independent. But
what we said in United States v. Philadelphia National
Bank, supra, disposes of that argument. A merger is
not saved from illegality under § 7, we said,
"because, on some ultimate reckoning of social or
economic debits and credits, it may be deemed beneficial.
A value choice of such magnitude is beyond
the ordinary limits of judicial competence, and in
any event has been made for us already, by Congress
when it enacted the amended § 7. Congress determined
to preserve our traditionally competitive
economy. It therefore proscribed anticompetitive
mergers, the benign and the malignant alike, fuUy
aware, we must assume, that some price might have
to be paid." 374 U. S., at 371.
Ford argues that the acquisition left the marketplace
with a greater number of competitors. To be sure, after
Autolite sold its New Fostoria plant to Ford, it constructed
another in Decatur, Alabama, which by 1964
had 1.6% of the domestic business. Prior to the acquisition,
however, there were only two major independent
producers and only two significant purchasers of original
equipment spark plugs. The acquisition thus aggravated
an already oligopolistic market.
As we indicated in Brown Shoe Co. v. United States,
370 U. S., at 323-324:
"The primary vice of a vertical merger or other
arrangement tying a customer to a supplier is that,
by foreclosing the competitors of either party from a
segment of the market otherwise open to them, the
arrangement may act as a 'clog on competition,'
Standard Oil Co. of California v. United States, 337
U. S. 293, 314, which 'deprive[s] ... rivals of a
fair opportunity to compete.' H. R. Rep. No. 1191,
562
FORD MOTOR CO. v. UNITED STATES 571
Opinion of the Court
81st Cong., 1st Sess. 8. Every extended vertical
arrangement by its very nature, for at least a time,
denies to competitors of the supplier the opportunity
to compete for part or all of the trade of the customer-
party to the vertical arrangement."
Moreover, Ford made the acquisition in order to obtain
a foothold in the aftermarket. Once established, it would
have every incentive to perpetuate the OE tie and thus
maintain the virtually insurmountable barriers to entry
to the aftermarket.
II
The main controversy here has been over the nature
and degree of the relief to be afforded.
During the year following the District Court's finding
of a § 7 violation, the parties were unable to agree upon
appropriate relief. The District Court then held nine
days of hearings on the remedy and, after full consideration,
concluded that divestiture and other relief were
necessary.
The OE tie, it held, was in many respects the key to
the solution since the propensity of the mechanic in a
service station or independent garage is to select as a
replacement the spark plug brand that the manufacturer
installed in the car. The oligopolistic structure of the
spark plug manufacturing industry encourages the continuance
of that system. Neither GM nor Autolite sells
private-label plugs. It is obviously in the self-interest
of OE plug manufacturers to discourage private-brand
sales and to encourage the OE tie. There are findings
that the private-brand sector of the spark plug market
will grow substantially in the next decade because mass
merchandisers are entering this market in force. They
not only sell all brands over the counter but also have
service bays where many carry only spark plugs of their
own proprietary brand. It is anticipated that by 1980
572 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
the total private brand portion of the spark plug market
may then represent 17% of the total aftermarket. The
District Court added:
"To the extent that the spark [plug] manufacturers
are not owned by the auto makers, it seems clear
that they will be more favorably disposed toward
private brand sales and will compete more vigorously
for such sales. Also, the potential entrant continues
to have the chance to sell not only the private brand
customer but the auto maker as well." 315 F.
Supp., at 378.
Accordingly the decree
(1) enjoined Ford for 10 years from manufacturing
spark plugs,
(2) ordered Ford for five years to purchase one-half
of its total annual requirement of spark plugs from the
divested plant under the "Autolite" name,
(3) prohibited Ford for the same period from using
its own trade names on plugs,
( 4) protected New Fostoria, the town where the Autolite
plant is located, by requiring Ford to continue for
10 years its policy of selling spark plugs to its dealers at
prices no less than its prevailing minimum suggested
jobbers' selling price,6
(5) protected employees of the New Fostoria plant by
ordering Ford to condition its divestiture sale on the
purchaser's assuming the existing wage and pension obligations
and to offer employment to any employee displaced
by a transfer of nonplug operations from the divested
plant.1
6 The District Court found this provision necessary in order to
assemble an adequate distribution system for the aftermarket. Without
it, service stations and independent jobbers would be unable to
compete with franchised car dealers for the replacement business.
Ford does not challenge this provision in this Court.
7 Ford does not challenge this ancillary portion of the District
Court decree protecting the employees of the New Fostoria plant.
FORD MOTOR CO. v. UNITED STATES 573
562 Opinion of the Court
The relief m an antitrust case must be "effective to
redress the violations" and "to restore competition." 8
United States v. Du Pont & Co., 366 U. S. 316, 326. The
District Court is clothed with "large discretion" to fit
the decree to the special needs of the individual case.
International Salt Co. v. United States, 332 U. S. 392
401; United States v. Du Pont & Co., 353 U. S., at 608;
United States v. Crescent Amusement Co., 323 U. S.
173, 185.
Complete divestiture is particularly appropriate where
asset or stock acquisitions violate the antitrust laws.
United States v. Du Pont & Co., supra, at 328-335;
United States v. Crescent Amusement Co., supra, at 189;
Schine Chain Theatres v. United States, 334 U. S. 110,
128; United States v. El Paso Gas Co., 376 U. S. 651.
Divestiture is a start toward restoring the pre-acquisition
situation. Ford once again will then stand as a
large industry customer at the edge of the market with
8 The suggestion that antitrust "violators may not be required to
do more than return the market to the status quo ante," post, at 590,
is not a correct statement of the law. In United States v. Paramount
Pictures, Inc., 334 U. S. 131, we sustained broad injunctions regulating
motion picture licenses and clearances which were not related
to the status quo ante. Reynold8 Metals Co. v. FTC, 114 U. S.
App. D. C. 2, 309 F. 2d 223 (1962), concerned the enforcement
powers of the Federal Trade Commission, not the equitable powers
of the District Court.
Section 4 of the Sherman Act, 15 U. S. C. § 4, and § 15 of the
Clayton Act, 15 U. S. C. § 25, empower "the Attorney General, to
institute proceedings in equity to prevent and restrain . . . violations"
of the antitrust laws. The relief which can be afforded under
these statutes is not limited to the restoration of the status quo ante.
There is no power to turn back the clock. Rather, the relief must
be directed to that which is "necessary and appropriate in the public
interest to eliminate the effects of the acquisition offensive to the
statute," United States v. Du Pont & Co., 353 U. S. 586, 607
(emphasis added), or which will "cure the ill effects of the illegal
conduct, and assure the public freedom from its continuance."
United States v. United States Gypsum Co., 340 U. S. 76, 88 (emphasis
added).
574 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
a renewed interest in securing favorable terms for its
substantial plug purchases. Since Ford will again be a
purchaser, it is expected that the competitive pressures
that existed among other spark plug producers to sell to
Ford will be re-created. The divestiture should also eliminate
the anticompetitive consequences in the aftermarket
flowing from the second largest automobile manufacturer's
entry through acquisition into the spark plug
manufacturing business.
The divested plant is given an incentive to provide
Ford with terms which will not only satisfy the 50%
requirement provided for five years by the decree but
which even after that period may keep at least some of
Ford's ongoing purchases. The divested plant is awarded
at least a foothold in the lucrative aftermarket and is
provided an incentive to compete aggressively for that
market.
As a result of the acquisition of Autolite, the structure
of the spark plug industry changed drastically, as already
noted. Ford, which before the acquisition was the largest
purchaser of spark plugs from the independent manufacturers,
became a major manufacturer. The result was
to foreclose to the remaining independent spark plug
manufacturers the substantial segment of the market
previously open to competitive selling and to remove the
significant procompetitive effects in the concentrated
spark plug market that resulted from Ford's position
on the edge of the market as a potential entrant.
To permit Ford to retain the Autolite plant and name
and to continue manufacturing spark plugs would perpetuate
the anticompetitive effects of the acquisition.9
9 "[I]t would be a novel, not to say absurd, interpretation of the
Anti-Trust Act to hold that after an unlawful combination is formed
and has acquired the power which it has no right to acquire, namely,
to restrain commerce by 8uppressing competition, and is proceeding
to use it and execute the purpose for which the combination was
formed, it must be left in possession of the power that it has acquired,
FORD MOTOR CO. v. UNITED STATES 575
562 Opinion of the Court
The District Court rightly concluded that only divestiture
would correct the condition caused by the unlawful
acquisition.
A word should be said about the other injunctive
provisions. They are designed to give the divested plant
an opportunity to establish its competitive position.
The divested company needs time so it can obtain a foothold
in the industry. The relief ordered should "cure
the ill effects of the illegal conduct, and assure the public
freedom from its continuance," United States v. United
States Gypsum Co., 340 U. S. 76, 88, and it necessarily
must "fit the exigencies of the particular case." International
Salt Co. v. United States, 332 U. S., at 401.
Moreover, "it is well settled that once the Government
has successfully borne the considerable burden of establishing
a violation of law, all doubts as to the remedy
are to be resolved in its favor." United States v. Du
Pont & Co., 366 U. S., at 334.
Ford concedes that "[i]f New Fostoria is to survive, it
must for the foreseeable future become and remain the
OE supplier to Ford and secure and retain the benefits
of such OE status in sales of replacement plugs." The
ancillary measures ordered by the District Court are designed
to allow Autolite to re-establish itself in the OE
and replacement markets and to maintain it as a viable
competitor until such time as forces already at work
within the marketplace weaken the OE tie. Thus Ford
is prohibited for 10 years from manufacturing its own
plugs.10 But in five years it can buy its plugs from any
source and use its name on OE plugs.
with full freedom to exercise it." Northern Securities Co. v. United
States, 193 U. S. 197, 357.
1° Ford argues that the 10-year prohibition on its manufacture of
spark plugs will lessen competition because it will remove a potential
competitor from the marketplace. This prohibition, however, is
merely a step toward the restoration of the statw; quo ante, and is,
moreover, necessary for Autolite to re-establish itself.
576 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
But pnor to that time Ford cannot use or market
plugs bearing the Ford trade name. In view of the
importance of the OE tie, if Ford were permitted to use
its own brand name during the initial five-year period,
there would be a tendency to impose the oligopolistic
structure of the automotive industry on the replacement
parts market and the divested enterprise might well be
unable to become a strong competitor. Ford argues that
any prohibition against the use of its name is permissible
only where the name deceives or confuses the public.11
But this is not an unfair competition case. The temporary
ban on the use of the Ford name is designed to
restore the pre-acquisition competitive structure of the
market.
The requirement that, for five years, Ford purchase at
11 Ford also argues that the right to its own trade name is a constitutionally
protected property right (cf. Howe ScaJ,e Co. v. Wyckoff,
Seamans & Benedict, 198 U. S. 118; Brown Chemical, Co. v. Meyer,
139 U. S. 540; United States v. Tropiano, 418 F. 2d 1069, 1076 (CA2
1969)), and that the remedial provision of § 15 of the Clayton Act
should not be construed to limit the use of this right. Even on that
assumption, we could not accept the conclusion advanced by Ford.
Even constitutionally protected property rights such as patents
may not be used as levers for obtaining objectives proscribed by the
antitrust Jaws. E. g., Besser Mfg. Co. v. United States, 343 U. S.
444, 448-449; Morton Sal,t Co. v. Suppiger Co., 314 U.S. 488. Here,
the use by Ford of its trade name would perpetuate the OE tie and
would have the prohibited effect of hindering the re-entry of Autolite
to the spark plug market as a viable competitor.
"The trade mark may become a detrimental weapon if it is used
to serve a harmful or injurious purpose. If it becomes a tool to
circumvent free enterprise and unbridled competition, public policy
dictates that the rights enjoyed by its ownership be kept within
their proper bounds. If a trade mark may be the legal basis for
allocating world markets, fixing of prices, restricting competition, the
unfailing device has been found to destroy every vestige of inhihition
set up by the Sherman Act." United States v. Timken Roller
Bearing Co., 83 F. Supp. 284, 316 (ND Ohio 1949), aff'd, 341 U.S.
593 (1951).
FORD MOTOR CO. v. UNITED STATES 577
562 Opinion of the Court
least half of its spark plug requirements from the divested
company under the Autolite label is to give the divested
enterprise an assured customer while it struggles to be
re-established as an effective, independent competitor.
It is suggested, however, that "the District Court's
orders assured that Ford could not begin to have brand
name success in the replacement market for at least
10 to 13 years." Post, at 591. This conclusion distorts
the effect of the District Court decree and the nature
of the spark plug industry. Ford's own studies indicate
that it would take five to eight years for it to develop
a spark plug division internally. A major portion of this
period would be devoted to the development of a viable
position in the aftermarket. The five-year prohibition
on the use of its own name and the 10-year limitation
on its own manufacturing mesh neatly to allow Ford to
establish itself in the af termarket prior to becoming a
manufacturer while, at the same time, giving Autolite
the opportunity to re-establish itself by providing a market
for its production. Thus, the District Court's decree
delays for only two to five years the date on which Ford
may become a manufacturer with an established share
of the aftermarket. Given the normal five-to-eight-year
lead time on entry through internal expansion, the District
Court's decree does not significantly lessen Ford's
moderating influence as a potential entrant on the edge
of the market. Moreover, in light of the interim benefits
this ancillary relief will have on the re-establishment of
Autolite as a viable competitor and of Ford as a major
purchaser, we cannot agree with the characterization of
the relief as "harshly restrictive," post, at 595, or the
assertion that the decree, in any practical and significant
sense, "prohibit[s] Ford from entering the market through
internal expansion." Post, at 592.
Antitrust relief should unfetter a market from anticompetitive
conduct and "pry open to competition a
578 OCTOBER TERM, 1971
Opinion of the Court 405 us.
market that has been closed by defendants' illegal restraints."
International Salt Co. v. United States, 332
U. S., at 401. The temporary elimination of Ford as a
manufacturer of spark plugs lowers a major barrier to
entry to this industry. See C. Kaysen & D. Turner, Antitrust
Policy-An Economic and Legal Analysis 116
( 1959). Forces now at work in the marketplace may
bring about a deconcentrated market structure and may
weaken the onerous OE tie. The District Court concluded
that the forces of competition must be nurtured
to correct for Ford's illegal acquisition. We view its
decree as a means to that end.12
The thorough and thoughtful way the District Court
considered all aspects of this case, including the nature
of the relief, is commendable. The drafting of such a
decree involves predictions and assumptions concerning
future economic and business events. Both public and
private interests are involved; and we conclude that the
District Court with a single eye to the requirements of
§ 7 and the violation that was clearly established made
a reasonable judgment on the means needed to restore
and encourage the competition adversely affected by the
acquisition.
Affirmed.
MR. JusTICE POWELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of this case.
12 The District Court decree thus implements the congressional
judgment in favor of atomized markets reflected in the Celler-
Kefauver Antimerger Act:
"But we cannot fail to recognize Congress' desire to promote
competition through the protection of viable, small, locally owned
businesses. Congress appreciated that occasional higher costs and
prices might result from the maintenance of fragmented industries
and markets. It resolved these competing considerations in favor
of decentralization. We must give effect to that decision." Brown
Shoe Co. v. United States, 370 U. S. 294, 344.
FORD MOTOR CO. v. UNITED STATES 579
562 STEW ART, J ., concurring in result
MR. JUSTICE STEWART, concurring in the result.
The spark plug industry as it stood prior to Ford's
acquisition of Autolite was hardly characterized by vigorous
competition. For 25 years, the industry had consisted
of AC, owned by and supplying original equipment
(OE) plugs to General Motors; Champion, independent
and supplying Ford; Autolite, independent and supplying
Chrysler; and a number of small producers who had
no OE sales and only a minuscule share of the aftermarket.
1 The habit among mechanics of installing replacement
plugs carrying the same brand as the automobile's
original plugs, reinforced by the unwillingness
of service stations to stock more than two or three
brands; made possible the "OE tie," which rendered any
large-scale entry into the aftermarket virtually impossible
without first obtaining a large OE customer. Moreover,
price competition was minimal, both in the OE market
( where any reduction in the six-cent price would immediately
be matched by rivals), and in the aftermarket
( where spark plugs accounted for such a small percentage
of the normal tuneup charge that price differentials did
not have a significant impact upon consumer choice).
The District Court found that the acquisition of Autolite's
spark plug assets by Ford further lessened competition
in the industry in two ways: it foreclosed Ford as
a potential purchaser of spark plugs from independent
producers, and it eliminated what the District Court
found to have been Ford's "moderating effect" upon
Champion's pricing policies in the af termarket. These
1 Both Champion and Autolite supplied OE plugs to American
Motors, which in 1961 had roughly 5% of the domestic automobile
market.
2 According to a 1966 survey, only 11 % of all metropolitan area
service stations stocked any brand of spark plug other than Champion,
AC, or Autolite, and only 30% stocked all three of the leading
brands.
580 OCTOBER TERM, 1971
STEWART, J., concurring in result 405 U.S.
findings standing alone might provide a basis for concluding
that the acquisition violated § 7, but, as THE CHIEF
JusTICE demonstrates in his dissenting opinion, post, at
591-592, the remedy ordered will not restore the preacquisition
market forces upon which the District Court
focused. For, under the court's injunctions, Ford will
be neither a potential market entrant, nor a potential
purchaser of half its OE requirements from producers
other than Autolite, for a substantial period of time after
the divestiture takes place.
In my judgment, both the finding of a § 7 violation
and the remedy ordered may be better rationalized in
terms of probable future trends in the spark plug market,
visible at the time of the acquisition. The District Court
observed that "a court cannot shut its eyes to contemporary
or predictable factors conducive to change in
the competitive structure." 286 F. Supp. 407, 442. This
was a proper inquiry because we have held that § 7 "requires
not merely an appraisal of the immediate impact
of the merger upon competition, but a prediction of its
impact upon competitive conditions in the future."
United States v. Philadelphia National Bank, 374 U. S.
321, 362.3
8 Ford argues that the acquisition allowed Autolite to compete
more effectively against the two larger brands, Champion and AC.
Since this argument is addressed to the effect of the acquisition upon
competition, the Court obviously provides no answer to the argument
when it quotes Philadelphia National. Bank for the proposition
that arguments unrelated to the merger's effect upon competition
are irrelevant in a § 7 case. But Ford's arguments that Autolite was
a more effective competitor after the acquisition rests principally
on the fact that Autolite's market share increased after 1961 while
Champion's decreased. This development, however, can be attributed
for the most part to the fact that Autolite now provides OE plugs
to Ford, rather than to the smaller Chrysler. Autolite's increased
market share, therefore, is more likely attributable to the OE tie
than to any increase in its competitive vigor.
FORD MOTOR CO. v. UNITED STATES 581
562 STEWART, J., concurring in result
The District Court found that the growth of servicecenters
operated by mass merchandisers carrying private
label brands might eventually loosen the OE tie and the
tight oligopoly in the spark plug market that it had
fostered. Had Ford entered the market through internal
expansion, either Champion or Autolite would have been
left without an OE entry, but would nevertheless have
owned an established brand name with an existing distribution
system, together with a large production capacity.
Even the threat of being so stranded, not to
mention its realization, would have given both Champion
and Autolite an incentive to compete as suppliers to
private label sellers, as these sellers began to represent
a significant share of the market, and to undermine the
OE tie. Ford's acquisition of Autolite did more than
foreclose it as a potential OE customer, or eliminate its
"moderating effect" upon Champion's pricing policies:
it eliminated one of the only two independent producers
with a sufficient share of the aftermarket to give it a
chance to compete effectively without an OE tie. Thus,
the acquisition had the probable effect of indefinitely
postponing the day when existing market forces could
produce a measurable deconcentration in the market.
While the District Court did not justify the divestiture
in precisely these terms, I think its prediction of future
trends in the spark plug industry is an adequate basis to
support the remedy ordered. THE CHIEF JusTrcE's
opinion, post, at 591-592, is correct in its assertion
that the ancillary injunctions are anticompetitive in
the short run, and that the District Court took extraordinary
measures to mother the divested producer
for the next decade. But I cannot sa.y that
these injunctions are not reasonably calculated to establish
the new Autolite producer as a viable firm and thus
to restore the pre-acquisition market structure, insofar
as it is now possible to do so . A divestiture decree
582 OCTOBER TERM, um
Opinion of BURGER, C. J. 405 U.S.
without ancillary injunctions would not automatically restore
the status quo ante, as THE CHIEF JusTrcE's opinion
seems to assume. The Electric Autolite Company, from
which Ford acquired the assets in question here, will not
be recreated by the divestiture, and it is reasonable to
assume that a new owner of the Autolite trade name and
the New Fostoria plant will require a period of time to
become as effective a competitor as was Electric Autolite
prior to the acquisition.
Though the economics of the market are such that
the divestiture cannot be assured of success, it does at
least have a chance of bringing increased competition to
the spark plug industry. And while divestiture remedies
in § 7 cases have not enjoyed spectacular success in the
past, remedies short of divestiture have been uniformly
unsuccessful in meeting the goals of the Act. See Elzinga,
The Antimerger Law: Pyrrhic Victories, 12 J. Law
& Econ. 43 ( 1969).
MR. CHIEF JUSTICE BURGER, concurnng m part and
dissenting in part.
In addition to requiring divestiture of Autolite, the
District Court made ancillary injunctive provisions that
go far beyond any that have been cited to the Court.
Ford is forbidden to manufacture spark plugs for 10
years; Ford is ordered to purchase one-half of its total
annual requirement of spark plugs from the divested
company under the "Autolite" name, and Ford is forbidden
for the same period to use its own trade
name on any spark plugs. These provisions are directed
to prevent Ford from making an independent entry into
the spark plug market and, in effect, to require it to
subsidize Autolite for a period of time. Despite the
Draconian quality of this restriction on Ford, I can find
no justification in the District Court's findings for this
FORD MOTOR CO. v. UNITED STATES 583
562 Opinion of BURGER, C. J.
remedy. I dissent from the broad sweep of the District
Court's remedial decree. I would remand for further
consideration of the remedial aspects of this case.
An understanding of the District Court's findings as
to the spark plug market shows three reasons why it
was in error in requiring Ford to support Autolite. First,
the court did not find that the weakness of an independent
Autolite's competitive position resulted from
Ford's acquisition. Rather, a reading of its findings
makes apparent that the precariousness of Autolite's expected
post-divestment position results from pre-existing
forces in the market. Therefore, the drastic measures
employed to strengthen Autolite's position at Ford's
expense cannot be justified as a remedy for any wrong
done by Ford. Second, the remedy will perpetuate for
a time the very evils upon which the District Court
based a finding of an antitrust violation. Third, the
court's own findings indicate that the remedy is not
likely to secure Autolite's competitive position beyond
the termination of the restrictions. Therefore, there is
no assurance that the judicial remedy will have the desired
impact on long-run competition in the spark plug
market.
The Court makes two critical errors in order to avoid
the effect of this reasoning. It rejects the f actfinding
by the District Court in order to uphold its remedial
order; and it repeats that court's error by discussing the
assistance necessary to restore Autolite to the status quo
ante without ever delineating that prior state of affairs
or indicating how Ford, by acquiring Autolite and holding
it for a number of years, had undermined its ability
to reassume its former independent competitive position.
The District Court made extensive findings on the
nature of the spark plug market. Some of these findings
appear in the Court's opinion, but some factors that
584 OCTOBER TERM, 1971
Opinion of BURGER, C. J. 405 U.S.
seem crucial to me are either omitted or not adequately
set forth. Therefore I will sketch these findings at some
risk of repetition.
Beyond doubt, the spark plug market has been overwhelmingly
dominated by three manufacturers for a long
period: AC, owned by General Motors, which had about
30% of the market in 1961; Champion, which had supplied
Ford since 1910 and had approximately 50% of
the market in 1961; and Autolite, which had supplied
Chrysler since 1941 and had 15% of the market in 1961.
Together these three companies had over 95% of the
total market in 1961.
The reason for the continued domination of the market
by the three big plug manufacturers is the pervasive
feature of the plug market known as the "OE ( original
equipment) tie." This denominates the phenomenon
that mechanics who replace spark plugs in a car engine
have tended, almost exclusively, to use the brand of plug
installed by the auto builder as original equipment.
Though not required by spark plug technology, mechanics
have followed this practice because of a strong desire
to avoid any chance of injuring an engine by putting
a mismatched plug into it. Further, because plugs are
low-profit items, those who install them tend to carry
an inventory of a small number of brands. Most carry
only two and some carry three brands, and they choose
the brands installed by the big auto manufacturers as
original equipment. Thus, it takes a position as supplier
to a large auto maker to gain recognition in the spark
plug replacement market. The Government conceded
in the District Court, for instance, that American
Motors, with 5% of the auto market, would not be able
to create market acceptance for an independent brand
of plug by installing it as original equipment in its cars.
Because of the competitive importance of having their
plugs installed as original equipment by one of the three
FORD MOTOR CO. v. UNITED STATES 585
562 Opinion of BuRGER, C. J.
auto companies, plug manufacturers have over a long
period been willing to sell OE plugs for initial installation
by auto manufacturers at a price below their production
cost. The longstanding price for OE plugs,
about 6 cents, is now approximately one-third of the
cost of producing these plugs. Such below-cost selling
is profitable for the plug companies because of the foothold
it gives them in competing for the normal five or
six sets of replacement plugs necessary in the lifespan
of an automobile. This pricing policy has been partially
responsible for the semipermanent relations between the
plug manufacturers and the auto manufacturers: it is
only those plug companies that profit from the OE tie
over the long run that can afford this below-cost sale to
the auto companies.
The strength of the OE tie is demonstrated by the
inability of well-known auto supply manufacturers to
gain a significant share of the spark plug market in the
absence of an OE tie. As the District Court found, no
company without the OE tie
"ever surpassed the 2% level. Several have come
and gone. Firestone Tire and Rubber Company
merchandised 'Firestone' replacements for 35 years
before it gave up in 1964. Although it owned
some 800 accessory stores and successfully wholesaled
other items to more than 50,000 shops and
filling stations, it could not surmount the patent
discrimination against brands not blessed with Detroit's
approbation. Goodyear Tire and Rubber
Company quit in only three years. Globe Union,
a fabricator which had barely 1 % of the nation's
shipments, withdrew in 1960." 286 F. Supp. 407,
434-435.
Two small manufacturers survive, producing plugs for
private-label brands. Thus "Atlas" plugs, sponsored by
586 OCTOBER TERM, 1971
Opinion of BURGER, C. J. 405 u. s.
the Standard Oil companies, has 1.4% of the replacement
market; "Prestolite" and Sears, Roebuck's "Allstate"
each have 1.2%; and Montgomery Ward's
"Riverside" label has 0.6% of the replacement market.
An independent entry into the plug market by Ford,
with the expected substitution of its own plugs as original
equipment in its cars, would have necessarily deprived
one of the two significant independent plug producers
of its OE status. The District Court found that,
because of the importance of the OE tie, the plug producer
deprived of this support would most likely have
lost any significant position in the market.1 Autolite,
with only 15% of the market before the acquisition,
would certainly have lost any significant position in the
market if an independent entry by Ford had led Chrysler
to shift its patronage from Autolite to Champion. The
District Court asserted that a Champion without OE
status would have had some chance of maintaining a
significant market position because of its size, although
it gave no reason for thinking Champion's size immunized
it from dependence on OE status. Before 1961,
Champion had just under 50% of the market. As a
result of Champion's move to Chrysler in 1961, its position
in the market dropped to 33% by 1966. The District
Court found no basis for predicting which of the
two big independents would have won such a competition
for continued OE status.
Thus, an independent entry by Ford would not likely
have increased the number of significant competitors
in the spark plug market. Rather, it would simply have
substituted Ford for one of the two significant independent
manufacturers. The result of this expectation
1 Of course, the decline would take a number of years, since it
would be spread over the life of the cars on the road bearing the
producer's plugs as original equipment-probably five to eight
years.
FORD MOTOR CO. v. UNITED STATES 587
562 Opinion of BURGER, C. J.
is that the District Court did not base its finding of
illegality on the ground typically present when a potential
entrant enters an oligopolistic market by acquisition
rather than internal expansion, i. e., that such a move
has deprived the market of the pro-competitive effect of
an increase in the number of competitors. Here an independent
entry would not have increased the number of
competitors but simply would have exchanged one competitor
for another. In noting this paradoxical fact, the
District Court concluded that "Ford may well have been
more useful as a potential than it would have been as
a real producer, regardless how it began fabrication." 2
286 F. Supp., at 441.
Not finding that Ford's entry by acquisition had deprived
the spark plug market of any pro-competitive
effect of an independent entry, the District Court relied
on two other grounds for finding a violation of the antitrust
laws. First, it concluded that as a potential entrant
on the edge of the market which was also a major purchaser
in the market, Ford exercised a "moderating"
influence on the market; the second basis for determining
the acquisition illegal was the finding that the acqui-
2 MR. JUSTICE STEWART, concurring in the result, relies on factual
assumptions that seem to me directly contrary to findings made by
the District Court. While that court found future developments
might arise in the plug market that would enable an independent
Autolite without OE status to survive, it also found that an independent
entry by Ford in 1960, or even as of the date of the projected
divestiture, would have left Autolite doomed because the market
would not yet be ready to offer it an independent niche. By
slighting these findings, MR. JUSTICE STEWART is able to avoid the
question whether Ford should have to bear the burden of maintaining
Autolite's life until a time when market changes might support
it when it is clear that an earlier independent entry by Ford
would have left it moribund. He further overlooks the problems discussed
below as to the unlikelihood of Autolite's success, its fixedproduction
needs versus the small size of the market free of the OE
tie.
588 OCTOBER TERM, 1971
Opinion of BURGER, C. J. 405 U.S.
sition "foreclosed" other companies from competing for
the business of supplying Ford with spark plugs.
With respect to Autolite itself, the District Court
made several relevant findings. First, it found that
Autolite is a fixed-production plant. In other words, it
can be profitable only turning out approximately the
number of plugs it now manufactures. It could not, for
instance, reduce its production by half and sell that at
a profit. Second, it made extensive findings with respect
to Autolite's distribution system:
"Ford received six regional offices, personnel and a
list of Electric Autolite's warehousers and jobbers.
All of these have been and still are at liberty to deal
with anyone they wish. Each old direct account
had to be visited individually and, if it consented,
be re-signed by defendant [Ford]. Within a few
months, 52 did enter into new ignition contracts.
However, 50 of these for the previous year had
also been . . . [ distributors of other Ford products J.
By mid-1966, direct accounts totaled 156, of which
104 in 1960 had been pledged to neither Ford nor
Autolite. The same bloc of 50 had been committed
to both. The net increase traceable with any
semblance of accuracy to the acquisition is two firstlayer
middlemen .... " 286 F. Supp., at 422.
As to difficulties that a divested Autolite might have in
establishing an independent distribution system, the District
Court mentioned only one: 3 if Ford were to offer
its own plugs to its car dealers at a fairly low price, one
which independent jobbers could not meet, Autolite
3 The District Court made no mention of whether a divested
Autolite would have the six regional offices and personnel that it had
in 1960. Given the District Court's solicitude for Autolite's health,
I can only assume that it expected Autolite to be sent out with
whatever it had brought in.
FORD MOTOR CO. v. UNITED STATES 589
562 Opinion of BURGER, C. J.
would have difficulty independently establishing its distribution
system. The jobbers would be less interested
in handling Autolite's line since the Ford dealers would
not want Autolite at the jobbers' price and, with this
demand cut out, the jobbers would be less interested in
pushing Autolite generally.
There is another set of relevant facts found by the
District Court. The District Judge found that "there
is a rising wind of new forces in the spark plug market
which may profoundly change it." 315 F. Supp. 372,
377. On the basis of the testimony of an executive
of one of the producers of plugs for private
labels, the court found that the private-brand sector
would grow during the next 10 years. This highly speculative
observation of the District Court was based on a
finding that the mass merchandisers are beginning to enter
the plug marketing field in force. Not only do the mass
merchandisers market private-brand plugs over the counter,
but they are also building service bays. And in these
bays many carry only their own proprietary brand of
spark plugs. TMs witness predicted that the mass merchandisers
would increase their share of the af termarket
from 4.4% to 10% by 1980. He further predicted that
oil companies would enter the replacement market, resulting
in a total of 17% of the replacement market being
supplied by private-label plugs by 1980. The court concluded
that these forces "may well lead to [the market's]
eventual deconcentration by increasing the number of
potential customers for a new entrant into the plug manufacturing
business and reducing the need for original
equipment identification." 315 F. Supp., at 378.
In its separate opinion on remedies, the District Court
correctly stated the relevant law; the purpose, and limit
of antitrust remedies, is to
"free these forces [ within the market] from the
unlawful restraint imposed upon them so that they
590 OCTOBER TERM, 1971
Opinion of BURGER, C. J. 405 U.S.
may run their natural course." 315 F. Supp., at
377.
The violators may not be required to do more than return
the market to the status quo ante. See United
States v. Paramount Pictures, Inc., 334 U. S. 131, 152--
153 (1948); Reynoids Metais Co. v. FTC, 114 U. S.
App. D. C. 2, 309 F. 2d 223 (1962) (Burger, J.). Applying
this general provision to the instant situation, the
District Court correctly stated:
"The court wishes to note here that although it
finds that divestiture is the only effective remedy, it
does not agree with the Government that the remedy
should be affirmatively designed to 'break the OE
tie.' The remedy is designed to correct the violations
of Section 7 found by the court. The OE tie,
as such, does not violate Section 7." 315 F. Supp.,
at 378.
The District Court then concluded that, in addition to
divestiture of the Autolite plant and trade name, certain
injunctive provisions were required "to give [Autolite] an
opportunity to establish its competitive position." Ibid.
It therefore ordered that Ford be prohibited from manufacturing
spark plugs for a period of 10 years. It further
ordered that for a period of five years Ford would be
required to purchase one-half of its total annual needs
of spark plugs from Autolite, bearing the Autolite
label. For this five-year period Ford was also ordered
not to use or market a spark plug under a trade name
owned by or licensed to it. The effect of these orders was
twofold. They assured Autolite of a purchaser for a large
part of its production for five years. And they prevented
Ford from immediately entering the competition for a
share of the af termarket with a plug under its own name;
it could not even label a plug under its own name for five
years and could not manufacture its own plug for 10 years.
FORD MOTOR CO. v. UNITED STATES 591
562 Opinion of BURGER, C. J.
Given the findings of the court that even with the status
of supplier of original equipment ( with the company's
own brand name on plugs) to a major auto manufacturer
it would take a new entrant into the spark plug market
five to eight years to establish a position for its brand
in the replacement market, the District Court's orders
assured that Ford could not begin to have brand-name
success in the replacement market for at least 10 to 13
years.4
In my view these drastic remedial provisions are not
warranted by the court's findings as to the grounds on
which Ford's acquisition violated the antitrust laws.
Further, in light of the District Court's own factfindings,
these remedies will have short run anticompetitive impact
and they give no assurance that they will succeed
in allowing Autolite to establish its competitive position.
The remedial provisions are unrelated to restoring the
status quo ante with respect to the two violations found
by the District Court, the ending of Ford's status as a
potential entrant with a moderating influence on the
market and the foreclosure of a significant part of the
plug market. Indeed, the remedies may well be anticompetitive
in both respects. First, the District Court's
order actually undercuts the moderating influence of
Ford's position on the edge of the market. It is the
4 The majority opinion errs in its evaluation, ante, at 577, of the
effect of the restrictions on Ford's ability to establish itself in the
aftermarket. The District Court opinion makes clear that gaining a
position in the replacement market takes five to eight years after the
brand of plugs is first installed as original equipment: 18 months to
three years before the first cars need plug replacements plus several
annual car populations requiring this brand before service centers
would be motivated to stock it. Thus, the prohibition against Ford's
using its own name for five years delays the beginning of an independent
Ford entry and results in assuring that Ford could not gain
a position in the aftermarket for 10 to 13 years after the effective
date of the divestiture.
592 OCTOBER TERM, 1971
Opinion of BURGER, C. J. 405 U.S.
possibility that a company on the sidelines will enter a
market through internal expansion that has a moderating
influence on the market. By prohibiting Ford from entering
the market through internal expansion, therefore, the
remedy order wipes out, for the duration of the restriction,
the pro-competitive influence Ford had on the market
prior to its acquisition of Autolite. Second, the
Court's order does not fully undo the foreclosure effect
of the acquisition. Divestment alone would return the
parties to the status quo ante. Ford would then be free
to deal with Autolite or another plug producer or to enter
the market through internal expansion. Yet the Court
has ordered Ford to buy at least half its requirements
from Autolite for five years. Thus, the order itself forecloses
part of Ford's needs from the forces of competition.
The above problems might be minor if the District
Court's remedy were justifiable in terms of returning
Autolite to the status quo ante by overcoming some harm
to its ability to compete accomplished by Ford's acquisition.
But on this issue the District Court opinion and
the majority of this Court are confused. Although the
District Court asserted that Autolite needed the aid of
its injunctive remedies to establish its competitive position,
the court made no findings in its remedy opinion
as to the source of Autolite's competitive weakness.
Therefore it never reached the issue whether the source
of weakness had anything to do with the violations attributed
to Ford. Instead, the court's opinion proceeded
from the recognition of competitive problems immediately
to the prescription of a remedy.
In fact, a fair reading of the findings of the District
Court shows that the acquisition did not injure Autolite's
competitive position. Autolite's OE status was
continued and its share of the aftermarket was increased
from 12.5% to 19%. Thus, its trademark is at least as
strong now as when Ford acquired the company. Nor
FORD MOTOR CO. v. UNITED STATES 593
562 Opinion of BURGER, C. J.
did the acquisition and holding of Autolite m.1ure its
distribution system. The District Court found that
Autolite did not own a distribution system. It merely
had short-term contracts with jobbers who distributed its
plugs to those who install them in cars or sell them to
the public. Almost all of these jobbers had concurrent
distribution relations with Ford. In fact, between 1961
and 1966 Ford tripled the number of jobbers handling
Autolite plugs. From the opinion below, it appears that
Ford has done nothing that will prevent an independent
Autolite from seeking to maintain these distribution channels.
The only possible finding of injury to be squeezed
out of the acquisition relates to the fact that Autolite
has been shorn of its status as OE supplier of Chrysler.
But this is inconclusive. Autolite had nothing more in
its position as OE supplier to Chrysler than it would
if Ford voluntarily chose to use Autolite plugs after the
divestment: a relationship based on short-term contracts
the auto manufacturer could refuse to renew at any time.
The findings of the District Court indicate that Autolite's
precarious position did not result from its acquisition
by Ford. Prior to the acquisition both Champion and
Autolite were in a continually precarious position in that
their continued large share of the market was totally
dependent on their positions as OE suppliers to auto
manufacturers. The very factor that assured that they
faced no serious competition in the short run also assured
that in the long run their own position was dependent
on their relationship with a large auto manufacturer.
Thus, the threat to Autolite posed by a simple
divestiture is the same threat it had lived with between
1941 and 1961 as an independent entity: it might be
left without any OE supply relationship with a major
auto manufacturer, and therefore its market position
based on this relationship might decline drastically.
594 OCTOBER TERM, 1971
Opinion of BURGER, C. J. 405 U.S.
Today's opinion errs when it states, ante, at 571, that
the District Judge found the OE tie the "key to the
solution" of this problem. Although the court indeed
found this tie a pervasive factor in the market, it also
found that the phenomenon was not created by Ford
and that it did not constitute a § 7 violation. Therefore
the Court errs in justifying the ancillary remedies as
necessary to overcome the OE tie. Even if such a remedy
might overcome the OE tie, which I question, there is
no justification for burdening Ford with the restrictive
order.
Further, the only conclusion to be drawn from the trial
findings is that the remedy is unlikely to result in a
secure market position for Autolite at the end of the
restricted period. Once again it will be dependent for
its survival on whether it can maintain an OE supply
status. The District Court's suggestion that Autolite can
find a niche supplying private-brand labels is unpersuasive.
It cannot be predicted with any certainty that
these sales outlets will grow to the extent predicted by
one person in that line of the business. Further, even
if they do, this is no assurance of Autolite's survival.
There are already several companies in the business of
producing plugs for private labels. Autolite will have
to compete with them. The results will not be helpful.
One possibility is that Autolite would completely monopolize
the private-brand market to the extent of about
17% of the replacement market. This is as uncompetitive
as it is unlikely. The more reasonable likelihood is
that Autolite might be able to gain a position producing,
for instance, 5% of the replacement market plugs. But
this would be useless because the District Court's findings
make clear that Autolite's fixed-production plant cannot
supply such a small share of the market at a profit.
In the final analysis it appears to me that the District
Court, seeing the immediate precariousness of Autolite's
FORD MOTOR CO. v. UNITED STATES 595
562 Opinion of BLACKMUN, J.
position as a divested entity, designed remedies to support
Autolite without contemplating whether it was
equitable to restrict Ford's freedom of action for these
purposes or whether there was any real chance of Autolite's
eventual survival. I fear that this is a situation
where the form of preserving competition has taken
precedence over an understanding of the realities of the
particular market. Therefore I dissent from today's
affirmance of the District Court's harshly restrictive remedial
provisions. 5
MR. JUSTICE BLACKMUN, concurring in part and dissenting
in part.
I concur in Part I of the Court's opinion and in that
portion of Part II that approves divestiture as part of
the remedy. I cannot agree, however, that prohibiting
Ford from using its own name or its trade name on any
spark plugs for five years and enjoining it entirely from
manufacturing plugs for 10 years is just, equitable, or necessary.
Instead, the stringency of those remedial provisions
strikes me as confiscatory and punitive. The
Court's opinion, ante, at 566, recognizes that Ford could
develop its own spark plug division internally and place
itself in the same position General Motors has occupied
for so long, but that this would take from five to eight
years. The restraint on Ford's entering the spark plug
area is thus for a period longer than it would take Ford
to achieve a position in the market through internal
development. And to deny it the use of its own name
is to deny it a property right that has little to do with
this litigation.
5 This case illustrates the unsoundness of the direct appeal permitted
in cases of this kind under 15 U. S. C. § 29. In a factually
complicated case like this, we would be immeasurably aided by the
screening process provided by a Court of Appeals review. Limited
expediting of such cases, under the discretion of this Court, would
satisfy all needs justifying direct review in this Court.
596 OCTOBER TERM, 1971
Syllabus 405 U.S.
UNITED STATES v. TOPCO ASSOCIATES, INC.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
No. 70-82. Argued November 16, 1971-Decided March 29, 1972
The United States brought this injunction action charging a violation
of § 1 of the Sherman Act by appellee, Topco, a cooperative association
of about 25 small and medium-sized independent regional
supermarket chains operating in 33 States. As its members' purchasing
agent appellee procures more than 1,000 different items,
most of which have brand names owned by Topco. The members'
combined retail sales in 1967 were $2.3 billion, exceeded by only
three national grocery chains. A member's average market share
in its area is about 6% and its competitive position is frequently as
strong as that of any other chain. The members own equal
amounts of Topco's common stock (the voting stock), choose its
directors, and completely control the association's operations.
Topco's bylaws establish an "exclusive" category of territorial
licenses, under which most members' licenses are issued and the two
other membership categories have proved to be de facto exclusi,·e.
Since no member under this system may sell Topco-brand products
outside the territory in which it is licensed, expansion into another
member's territory is in practice permitted only with the other
member's consent, and since a member in effect has a veto power
over admission of a new member, members can control actual or
potential competition in the territorial areas in which they are
concerned. Topco members are prohibited from selling any products
supplied by the association at wholesale, whether trademarked
or not, without securing special permission, which is not
granted without the consent of other interested licensees (usually
retailers) and then the member must agree to restrict Topco product
sales to a specific area and under certain conditions. The
Government charged that Topco's scheme of dividing markP.t.R
violates the Sherman Act because it operates to prohibit competition
in Topco-brand products among retail grocery chains, and
also challenged Topco's restrictions on wholesaling. Topco contended
that it needs territorial divisions to maintain its privatelabel
program and to enable it to compete with the larger chains;
that the association could not exist if the territorial divisions were
not exclusive; and that the restrictions on competition in Topcobrand
sales enable members to meet larger chain competition.
UNITED STATES v. TOPCO ASSOCIATES 597
596 Opinion of the Court
The District Court, agreeing with Topco, upheld the restrictive
practices as reasonable and pro-competitive. Held: The Topco
scheme of allocating territories to minimize competition at the
retail level is a horizontal restraint constituting a per se violation
of § 1 of the Sherman Act, and the District Court erred in applying
a rule of reason to the restrictive practices here involved.
United States v. Sealy, Inc., 388 U. S. 350. Topco's limitations
upon reselling at wholesale are for the same reason per se invalid
under § 1. Pp. 606-612.
319 F. Supp. 1031, reversed and remanded.
MARSHALL, J., delivered the opinion of the Court, in which Douo-
LAS, BRENNAN, STEWART, and WHITE, JJ., joined. BLACKMUN, J.,
filed an opinion concurring in the result, post, p. 612. BURGER,
C. J., filed a dissenting opinion, post, p. 613. PowELL and REHNQUIST,
JJ., took no part in the consideration or decision of the case.
Howard E. Shapiro argued the cause for the United
States. With him on the briefs were Solicitor General
Griswold and De'f)Uty Assistant Attorney General
Comegys.
Victor E. Grimm argued the cause for appellee. With
him on the brief were John T. Loughlin and William R.
Carney.
MR. JusTICE MARSHALL delivered the opinion of the
Court.
The United States brought this action for injunctive
relief against alleged violation by Topco Associates, Inc.
(Topco), of § 1 of the Sherman Act, 26 Stat. 209, as
amended, 15 U. S. C. § 1. Jurisdiction was grounded in
§ 4 of the Act, 15 U. S. C. § 4. Following a trial on the
merits, the United States District Court for the Northern
District of Illinois entered judgment for Topco, 319 F.
Supp. 1031, and the United States appealed directly to
this Court pursuant to § 2 of the Expediting Act, 32 Stat.
823, as amended, 15 U. S. C. § 29. We noted probable
jurisdiction, 402 U.S. 905 (1971), and we now reverse the
judgment of the District Court.
598 OCTOBER TERM, 1971
Opinion of the Court 405U.S.
I
Topco is a cooperative association of approximately
25 small and medium-sized regional supermarket chains
that operate stores in some 33 States.1 Each of the
member chains operates independently; there is no pooling
of earnings, profits, capital, management, or advertising
resources. No grocery business is conducted under
the Topco name. Its basic function is to serve as a
purchasing agent for its members.2 In this capacity, it
procures and distributes to the members more than 1,000
different food and related nonfood items, most of which
are distributed under brand names owned by Topco.
The association does not itself own any manufacturing,
processing, or warehousing facilities, and the items that
it procures for members are usually shipped directly
from the packer or manufacturer to the members. Payment
is made either to Topco or directly to the manufacturer
at a cost that is virtually the same for the
members as for Topco itself.
All of the stock in Topco is owned by the members,
with the common stock, the only stock having voting
rights, being equally distributed. The board of directors,
which controls the operation of the association, is
drawn from the members and is normally composed of
high-ranking executive officers of member chains. It
is the board that elects the association's officers and ap-
1 Topco, which is referred to at times in this opinion as the
''association," is actually composed of 23 chains of supermarket
retailers and two retailer-owned cooperative wholesalers.
2 In addition to purchasing various items for its members, Topco
performs other related functions: e. g.1 it insures that there is
adequate quality control on the products that it purchases; it
assists members in developing specifications on certain types of
products (e. g., equipment and supplies); and it also aids the
members in purchasing goods through other sources.
UNITED STATES v. TOPCO ASSOCIAT~ 599
596 Opinion of the Court
points committee members, and it is from the board that
the principal executive officers of Topco must be drawn.
Restrictions on the alienation of stock and the procedure
for selecting all important officials of the association
from within the ranks of its members give the members
complete and unfettered control over the operations of
the association.
Topco was founded in the 1940's by a group of small,
local grocery chains, independently owned and operated,
that desired to cooperate to obtain high quality merchandise
under private labels in order to compete more
effectively with larger national and regional chains.3
With a line of canned, dairy, and other products, the
3 The founding members of Topco were having difficulty competing
with larger chains. This difficulty was attributable in some
degree to the fact that the larger chains were capable of developing
their own private-label programs.
Private-label products differ from other braP.d-name produrts in
that they are sold at a limited number of easily ascertainable stores.
A&P, for example, was a pioneer in developing a series of products
that were sold under an A&P label and that were only available
in A&P stores. It is obvious that by using private-label products,
a chain can achieve significant cost economies in purchasing, transportation,
warehousing, promotion, and advertising. These economies
may afford the chain opportunities for offering private-label
products at lower prices than other brand-name products. This,
in turn, provides many advantages of which some of the more
important are: a store can offer national-brand products at the
same price as other stores, while simultaneously offering a desirable,
lower priced alternative; or, if the profit margin is sufficiently high
on private-brand goods, national-brand products may be sold at
reduced price. Other advantages include: enabling a chain to
bargain more favorably with national-brand manufacturers by
creating a broader supply base of manufacturers, thereby decreasing
dependence on a few, large national-brand manufacturers; enabling
a chain to create a "price-mix" whereby prices on special items can
be lowered to attract customers while profits are maintained on
other items; and creation of general goodwill by offering lower
priced, higher quality goods.
600 OCTOBER TERM, 1971
Opinion of the Court 405U.S.
association began. It added frozen foods in 1950, fresh
produce in 1958, more general merchandise equipment
and supplies in 1960, and a branded bacon and carcass
beef selection program in 1966. By 1964, Topco's members
had combined retail sales of more than $2 billion ;
by 1967, their sales totaled more than $2.3 billion, a
figure exceeded by only three national grocery chains!
Members of the association vary in the degree of
market share that they possess in their respective
areas. The range is from 1.5% to 16%, with the average
being approximately 6%. While it is difficult to compare
these figures with the market shares of larger regional
and national chains because of the absence in
the record of accurate statistics for these chains, there
is much evidence in the record that Topco members are
frequently in as strong a competitive position in their
respective areas as any other chain. The strength of
this competitive position is due, in some measure, to
the success of Topco-brand products. Although only
10% of the total goods sold by Topco members bear
the association's brand names, the profit on these goods
is substantial and their very existence has improved the
competitive potential of Topco members with respect
to other large and powerful chains.
It is apparent that from meager beginnings approximately
a quarter of a century ago, Topco has developed
into a purchasing association wholly owned and operated
by member chains, which possess much economic muscle,
individually as well as cooperatively.
II
Section 1 of the Sherman Act provides, in relevant
part:
"Every contract, combination in the form of
trust or otherwise, or conspiracy, in restraint of
• The three largest chains are A&P, Safeway, and Kroger.
596
UNITED STATES v. TOPCO ASSOCIATES 601
Opinion of the Court
trade or commerce among the several States, or with
foreign nations, is declared to be illegal .... "
The United States charged that, beginning at least as
early as 1960 and continuing up to the time that the
complaint was filed, Topco had combined and conspired
with its members to violate § 1 5 in two respects. First,
the Government alleged that there existed:
"a continuing agreement, understanding and concert
of action among the co-conspirator member firms
acting through Topco, the substantial terms of which
have been and are that each co-conspirator member
firm will sell Topco-controlled brands only
within the marketing territory allocated to it, and
will refrain from selling Topco-controlled brands
outside such marketing territory."
The division of marketing territories to which the complaint
refers consists of a number of practices by the
association.
Article IX, § 2, of the Topco bylaws establishes three
categories of territorial licenses that members may
secure from the association:
"(a) Exclusive-An exclusive territory is one in
which the member is licensed to sell all products
bearing specified trademarks of the Association, to
the exclusion of all other persons.
"(b) Non-exclusive-A non-exclusive territory is
one in which a member is licensed to sell all products
bearing specified trademarks of the Association, but
not to the exclusion of others who may also be
licensed to sell products bearing the same trademarks
of the Association in the same territory.
" ( c) Coextensive-A coextensive territory is one
5 Topco was named in the complaint as the sole defendant, but
the complaint clearly charged that its members, while not defendants,
were coconspirators in Topco's violation of the Sherman Act.
602 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
in which two (2) or more members are licensed to
sell all products bearing specified trademarks of the
Association to the exclusion of all other persons .... "
When applying for membership, a chain must designate
the type of license that it desires. Membership must
first be approved by the board of directors, and thereafter
by an affirmative vote of 75% of the association's
members. If, however, the member whose operations
are closest to those of the applicant, or any member
whose operations are located within 100 miles of the
applicant, votes against approval, an affirmative vote of
85% of the members is required for approval. Bylaws,
Art. I, § 5. Because, as indicated by the record, members
cooperate in accommodating each other's wishes,
the procedure for approval provides, in essence, that
members have a veto of sorts over actual or potential
competition in the territorial areas in which they are
concerned.
Following approval, each new member signs an agreement
with Topco designating the territory in which
that member may sell Topco-brand products. No member
may sell these products outside the territory in
which it is licensed. Most licenses are exclusive, and
even those denominated "coextensive" or "non-exclusive"
prove to be de facto exclusive. Exclusive territorial
areas are of ten allocated to members who do no
actual business in those areas on the theory that they
may wish to expand at some indefinite future time and
that expansion would likely be in the direction of the
allocated territory. When combined with each member's
veto power over new members, provisions for exclusivity
work effectively to insulate members from competition
in Topco-brand goods. Should a member violate
its license agreement and sell in areas other than those
in which it is licensed, its membership can be terminated
under Art. IV, §§ 2 (a) and 2 (b) of the
UNITED STATES v. TOPCO ASSOCIATES 603
596 Opinion of the Court
bylaws. Once a territory is classified as exclusive, either
formally or de facto, it is extremely unlikely that the
classification will ever be changed. See Bylaws, Art. IX.
The Government maintains that this scheme of dividing
markets violates the Sherman Act because it
operates to prohibit competition in Topco-brand products
among grocery chains engaged in retail operations.
The Government also makes a subsidiary challenge to
Topco's practices regarding licensing members to sell
at wholesale. Under the bylaws, members are not
permitted to sell any products supplied by the association
at wholesale, whether trademarked or not, without
first applying for and receiving special permission
from the association to do so.6 Before permission is
granted, other licensees (usually retailers), whose interests
may potentially be affected by wholesale operations,
are consulted as to their wishes in the matter. If permission
is obtained, the member must agree to restrict
6 Article IX, § 8, of the bylaws provides, in relevant part:
"Unless a member's membership and licensing agreement provides
that such member may sell at wholesale, a member may not wholesale
products supplied by the Association. If a membership and
licensing agreement permits a member to sell at wholesale, such
member shall control the resale of products bearing trademarks of
the Association so that such sales are confined to the territories
granted to the member, and the method of selling shall conform in
all respects with the Association's policies."
Shortly before trial, Topco amended this bylaw with an addition
that permitted any member to wholesale in the exclusive territories
in which it retailed. But the restriction remained the same in all
other cases.
It is apparent that this bylaw on its face applies whether or not
the products sold are trademarked by Topco. Despite the fact
that Topco's general manager testified at trial that, in practice,
the restriction is confined to Topco-branded products, the District
Court found that the bylaw is applied as written. We find nothing
clearly erroneous in this finding. Assuming, arguendo, however, that
the restriction is confined to products trademarked by Topco, the
result in this case would not change.
604 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
the sale of Topco products to a specific geographic area
and to sell under any conditions imposed by the association.
Permission to wholesale has often been sought by
members, only to be denied by the association. The
Government contends that this amounts not only to a
territorial restriction violative of the Sherman Act, but
also to a restriction on customers that in itself is violative
of the Act.1
From the inception of this lawsuit, Topco accepted aE
true most of the Government's allegations regarding
territorial divisions and restrictions on wholesaling, although
it differed greatly with the Government on the
conclusions, both factual and legal, to be drawn from
these facts.
Topco's answer to the complaint is illustrative of its
posture in the District Court and before this Court:
"Private label merchandising is a way of economic
life in the food retailing industry, and exclusivity is
the essence of a private label program; without exclusivity,
a private label would not be private. Each
national and large regional chain has its own exclusive
private label products in addition to the nationally
advertised brands which all chains sell.
Each such chain relies upon the exclusivity of its
own private label line to differentiate its private
7 When the Government first raised this point in the District
Court, Topco objected on the ground that it was at variance with
the charge in the complaint, The District Court apparently agreed
with Topco that the complaint did not cover customer limitations,
but permitted the Government to pursue this line on the basis that
if the limitations were proved, the complaint could later be
amended. App. 141. Topco acquiesced in this procedure, and
both sides dealt with customer limitations in examining witnesses.
The District Court made specific findings and conclusions with
respect to the totality of the restraints on wholesaling. In light
of these facts, the additional fact that the complaint was never
formally amended should not bar our consideration of the issue.
596
UNITED STATES v. TOPCO ASSOCIATES 605
Opinion of the Court
label products from those of its competitors and to
attract and retain the repeat business and loyalty
of consumers. Smaller retail grocery stores and
chains are unable to compete effectively with the
national and large regional chains without also
offering their own exclusive private label products.
"The only feasible method by which Topco can
procure private label products and assure the exclusivity
thereof is through trademark licenses specifying
the territory in which each member may sell
such trademarked products." Answer, App. 11.
Topco essentially maintains that it needs territorial divisions
to compete with larger chains; that the association
could not exist if the territorial divisions were
anything but exclusive; and that by restricting competition
in the sale of Topco-brand goods, the association
actually increases competition by enabling its members
to compete successfully with larger regional and national
chains.
The District Court, considering all these things relevant
to its decision, agreed with Topco. It recognized
that the panoply of restraints that Topco imposed on
its members worked to prevent competition in Topcobrand
products,8 but concluded that
" [ w] hatever anti-competitive effect these practices
may have on competition in the sale of Topco pri-
8 The District Court recognized that "[t)he government has introduced
evidence indicating that some applications by Topco members
to expand into territories assigned to other members have been
denied," 319 F. Supp. 1031, 1042, but concluded that these decisions
by Topco did not have an appreciable influence on the decision of
members as to whether or not to expand. Topco expands on this
conclusion in its brief by asserting that "the evidence is uncontradicted
that a member has never failed to build a new store because
it was unable to obtain a license." Brief for Appellee 18 n. 18.
The problem with the conclusion of the District Court and the
606 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
vate label brands is far outweighed by the increased
ability of Topco members to compete both with
the national chains and other supermarkets operating
in their respective territories." 319 F. Supp.
1031, 1043 (1970).
The court held that Topco's practices were procompetitive
and, therefore, consistent with the purposes of the
antitrust laws. But we conclude that the District Court
used an improper analysis in reaching its result.
III
On its face, § 1 of the Sherman Act appears to bar
any combination of entrepreneurs so long as it is "in
restraint of trade." Theoretically, all manufacturers,
distributors, merchants, sellers, and buyers could be considered
as potential competitors of each other. Were
§ 1 to be read in the narrowest possible way, any commercial
contract could be deemed to violate it. Chicago
Board of Trade v. United States, 246 U.S. 231,238 (1918)
(Brandeis, J.). The history underlying the formulation
of the antitrust laws led this Court to conclude, however,
that Congress did not intend to prohibit all contracts, nor
even all contracts that might in some insignificant degree
or attenuated sense restrain trade or competition. In
lieu of the narrowest possible reading of § 1, the Court
adopted a "rule of reason" analysis for determining
assertion by Topco is that they are wholly inconsistent with the
notion that territorial divisions are crucial to the existence of
Topco, as urged by the association and found by the District Court.
From the filing of its answer to the argument before this Court,
Topco has maintained that without a guarantee of an exclusive territory,
prospective licensees would not join Topco and present
licensees would leave the association. It is difficult to understand
how Topco can make this argument and simultaneously urge that
territorial restrictions are an unimportant factor in the decision
of a member on whether to expand its business.
UNITED STATES v. TOPCO ASSOCIATES 607
596 Opinion of the Court
whether most business combinations or contracts violate
the prohibitions of the Sherman Act. Standard Oil Co.
v. United States, 221 U. S. 1 (1911). An analysis of
the reasonableness of particular restraints includes consideration
of the facts peculiar to the business in which
the restraint is applied, the nature of the restraint and
its effects, and the history of the restraint and the reasons
for its adoption. Chicago Board of Trade v. United
States, supra, at 238.
While the Court has utilized the "rule of reason" in
evaluating the legality of most restraints alleged to be
violative of the Sherman Act, it has also developed the
doctrine that certain business relationships are per se
violations of the Act without regard to a consideration
of their reasonableness. In Northern Pacific R. Co. v.
United States, 356 U. S. 1, 5 (1958), Mr. Justice Black
explained the appropriateness of, and the need for, per se
rules:
"[TJhere are certain agreements or practices which
because of their pernicious effect on competition
and lack of any redeeming virtue are conclusively
presumed to be unreasonable and therefore illegal
without elaborate inquiry as to the precise harm
they have caused or the business excuse for their
use. This principle of per se unreasonableness not
only makes the type of restraints which are proscribed
by the Sherman Act more certain to the
benefit of everyone concerned, but it also avoids the
necessity for an incredibly complicated and prolonged
economic investigation into the entire history of
the industry involved, as well as related industries,
in an effort to determine at large whether a particular
restraint has been unreasonable-an inquiry
so often wholly fruitless when undertaken."
It is only after considerable experience with certain
business relationships that courts classify them as per se
608 OCTOBER TERM, 1971
Opinion of the Court 405U.S.
violations of the Sherman Act. See generally Van Cise,
The Future of Per Se in Antitrust Law, 50 Va. L. Rev.
1165 ( 1964). One of the classic examples of a per se
violation of § 1 is an agreement between competitors at
the same level of the market structure to allocate territories
in order to minimize competition. Such concerted
action is usually termed a "horizontal'' restraint, in contradistinction
to combinations of persons at different
levels of the market structure, e. g., manufacturers and
distributors, which are termed "vertical" restraints. This
Court has reiterated time and time again that "[h]orizontal
territorial limitations ... are naked restraints of
trade with no purpose except stifling of competition."
White Motor Co. v. United States, 372 U. S. 253, 263
( 1963). Such limitations are per se violations of the
Sherman Act. See Addyston Pipe & Steel Co. v. United
States, 175 U.S. 211 (1899), a:ff'g 85 F. 271 (CA6 1898)
(Taft, J.); United States v. National Lead Co., 332
U. S. 319 (1947); Timken Roller Bearing Co. v. United
States, 341 U. S. 593 (1951); Northern Pacific R. Co.
v. United States, supra; Citizen Publi,shing Co. v. United
States, 394 U.S. 131 (1969); United States v. Sealy, Inc.,
388 U. S. 350 (1967); United States v. Arnold, Schwinn
& Co., 388 U. S. 365, 390 (1967) (STEWART, J., concurring
in part and dissenting in part); Serta Associates,
Inc. v. United States, 393 U. S. 534 (1969), aff'g 296 F.
Supp. 1121, 1128 (ND Ill. 1968).
We think that it is clear that the restraint in this case is
a horizontal one, and, therefore, a per se violation of § 1.
The District Court failed to make any determination as
to whether there were per se horizontal territorial restraints
in this case and simply applied a rule of reason
in reaching its conclusions that the restraints were not
illegal. See, e. g., Comment, Horizontal Territorial Restraints
and the Per Se Rule, 28 Wash. & Lee L. Rev.
457, 469 (1971). In so doing, the District Court erred.
UNITED STATES v. TOPCO ASSOCIATES 609
596 Opinion of the Court
United States v. Sealy, Inc., supra, is, in fact, on all
fours with this case. Sealy licensed manufacturers of
mattresses and bedding to make and sell products using
the Sealy trademark. Like Topco, Sealy was a corporation
owned almost entirely by its licensees, who elected
the Board of Directors and controlled the bm,iness. Just
as in this case, Sealy agreed with the licensees not to license
other manufacturers or sellers to sell Sealy-brand
products in a designated territory in exchange for the
promise of the licensee who sold in that territory not to
expand its sales beyond the area demarcated by Sealy.
The Court held that this was a horizontal territorial restraint,
which was per se violative of the Sherman Act.9
Whether or not we would decide this case the same
way under the rule of reason used by the District Court
is irrelevant to the issue before us. The fact is that
courts are of limited utility in examining difficult economic
problems.10 Our inability to weigh, in any mean-
9 It is true that in Sealy the Court dealt with price fixing as well
a& territorial restrictions. To the extent that Sealy casts doubt on
whether horizontal territorial limitations, unaccompanied by prire
fixing, are per se violations of the Sherman Act, we remove that
doubt today.
10 There has been much recent commentary on the wisdom of
per se rules. See, e. g., Comment, Horizontal Territorial Restraints
and the Per Se Rule, 28 Wash. & Lee L. Rev. 457 (1971); Averill,
Sealy, Schwinn and Sherman One: An Analysis and Prognosis, 15
N. Y. L. F. 39 (1969); Note, Selected Antitrust Problems of the
Franchisor: Exclusive Arrangements, Territorial Restrictions, and
Franchise Termination, 22 U. Fla. L. Rev. 260, 286 (1969); Sadd,
Antitrust Symposium: Territorial and Customer Restrictions After
Sealy and Schwinn, 38 U. Cin. L. Rev. 249, 252-253 (1969); Bork,
The Rule of Reason and the Per Se Concept, pt. 1, Price Fixing
and Market Division, 74 Yale L. J. 775 (1965).
Without the per se rules, businessmen would be left with little
to aid them in predicting in any particular case what courts will
find to be legal and illegal under the Sherman Act. Should Congress
ultimately determine that predictability is unimportant in this
610 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
ingful sense, destruction of competition in one sector of
the economy against promotion of competition in another
sector is one important reason we have formulated per
se rules.
In applying these rigid rules, the Court has consistently
rejected the notion that naked restraints of trade are to
be tolerated because they are well intended or because
they are allegedly developed to increase competition.
E. g., United States v. General Motors Corp., 384 U. S.
127, 146-147 (1966); United States v. Masonite Corp.,
316 U. S. 265 (1942); Fashion Originators' Guild v. FTC,
312 U. S. 457 (1941).
Antitrust laws in general, and the Sherman Act in particular,
are the Magna Carta of free enterprise. They
are as important to the preservation of economic freedom
and our free-enterprise system as the Bin of Rights
is to the protection of our fundamental personal freedoms.
And the freedom guaranteed each and every business,
no matter how small, is the freedom to competeto
assert with vigor, imagination, devotion, and ingenuity
whatever economic muscle it can muster. Implicit in
such freedom is the notion that it cannot be foreclosed
with respect to one sector of the economy because certain
private citizens or groups believe that such foreclosure
might promote greater competition in a more important
sector of the economy. Cf. United States v. Philadelphia
National Bank, 374 U. S. 321, 371 (1963).
The District Court determined that by limiting the
freedom of its individual members to compete with each
other, Topco was doing a greater good by fostering competition
between members and other large supermarket
chains. But, the fallacy in this is that Topco has no
authority under the Sherman Act to determine the
area of the law, it can, of course, make per se rules inapplicable
in some or all cases, and leave courts free to ramble through the
wilds of economic theory in order to maintain a flexible approach.
UNITED STATES v. TOPCO ASSOCIATES 611
596 Opinion of the Court
respective values of competition in various sectors of
the economy. On the contrary, the Sherman Act gives
to each Topco member and to each prospective member
the right to ascertain for itself whether or not competition
with other supermarket chains is more desirable than
competition in the sale of Topco-brand products. Without
territorial restrictions, Topco members may indeed
"[cut] each other's throats.'' Cf. White Motor Co.,
supra, at 278 (Clark, J., dissenting). But, we have
never found this possibility sufficient to warrant condoning
horizontal restraints of trade.
The Court has previously noted with respect to price
fixing, another per se violation of the Sherman Act, that:
"The reasonable price fixed today may through
economic and business changes become the unreasonable
price of tomorrow. Once established, it may be
maintained unchanged because of the absence of
competition secured by the agreement for a price
reasonable when fixed." United States v. Trenton
Potteries Co., 273 U. S. 392, 397 (1927).
A similar observation can be made with regard to territorial
limitations. White Motor Co., supra, at 265 n. 2
(BRENNAN, J., concurring).
There have been tremendous departures from the notion
of a free-enterprise system as it was originally conceived
in this country. These departures have been the
product of congressional action and the will of the people.
If a decision is to be made to sacrifice competition in one
portion of the economy for greater competition in another
portion, this too is a decision that must be made by
Congress and not by private forces or by the courts.
Private forces are too keenly aware of their own interests
in making such decisions and courts are ill-equipped and
ill-situated for such decisionmaking. To analyze, interpret,
and evaluate the myriad of competing interests
and the endless data that would surely be brought 'to
612 OCTOBER TERM, 1971
BLACKMUN, J., concurring in result 405 U.S.
bear on such decisions, and to make the delicate judgment
on the relative values to society of competitive
areas of the economy, the judgment of the elected representatives
of the people is required.
Just as the territorial restrictions on retailing Topcobrand
products must fall, so must the territorial restrictions
on wholesaling. The considerations are the same,
and the Sherman Act requires identical results.
We also strike down Topco's other restrictions on the
right of its members to wholesale goods. These restrictions
amount to regulation of the customers to whom
members of Topco may sell Topco-brand goods. Like
territorial restrictions, limitations on customers are intended
to limit intra-brand competition and to promote
inter-brand competition. For the reasons previously discussed,
the arena in which Topco members compete must
be left to their unfettered choice absent a contrary congressional
determination. United States v. General
Motors Corp., supra; cf. United States v. Arnold, Schwinn
& Co., supra; United States v. Masonite Corp., supra;
United States v. Trenton Potteries, supra. See also,
White Motor Co., supra, at 281-283 (Clark, J., dissenting).
We reverse the judgment of the District Court and
remand the case for entry of an appropriate decree.
It is so ordered.
MR. JusTICE POWELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of this case.
MR. JUSTICE BLACKMUN, concurring in the result.
The conclusion the Court reaches has its anomalous
aspects, for surely, as the District Court's findings make
clear, today's decision in the Government's favor will
tend to stultify Topco members' competition with the
great and larger chains. The bigs, therefore, should find
it easier to get bigger and, as a consequence, reality
UNITED STATES v. TOPCO ASSOCIATES 613
596 BURGER, C. J., dissenting
seems at odds with the public interest. The per se rule,
however, now appears to be so firmly established by the
Court that, at this late date, I could not oppose it. Relief,
if any is to be forthcoming, apparently must be by
way of legislation.
MR. CHIEF JusTICE BuRGER, dissenting.
This case does not involve restraints on interbrand
competition or an allocation of markets by an association
with monopoly or near-monopoly control of the sources
of supply of one or more varieties of staple goods.
Rather, we have here an agreement among several small
grocery chains to join in a cooperative endeavor that,
in my view, has an unquestionably lawful principal
purpose; in pursuit of that purpose they have mutually
agreed to certain minimal ancillary restraints that are
fully reasonable in view of the principal purpose and
that have never before today been held by this Court
to be per se violations of the Sherman Act.
In joining in this cooperative endeavor, these small
chains did not agree to the restraints here at issue in
order to make it possible for them to exploit an already
established line of products through noncompetitive
pricing. There was no such thing as a Topco line of
products until this cooperative was formed. The restraints
to which the cooperative's members have agreed
deal only with the marketing of the products in the Topco
line, and the only function of those restraints is to permit
each member chain to establish, within its own geographical
area and through its own local advertising and
marketing efforts, a local consumer awareness of the
trademarked family of products as that member's "private
label" line. The goal sought was the enhancement
of the individual members' abilities to compete, albeit
to a modest degree, with the large national chains which
had been successfully marketing private-label lines for
614 OCTOBER TERM, 1971
BURGER, C. J., dissenting 405 U.S.
several years. The sole reason for a cooperative endeavor
was to make economically feasible such things as
quality control, large quantity purchases at bulk prices,
the development of attractively printed labels, and the
ability to offer a number of different lines of trademarked
products. All these things, of course, are feasible for
the large national chains operating individually, but they
are beyond the reach of the small operators proceeding
alone.1
After a careful review of the economic considerations
bearing upon this case, the District Court determined
that "the relief which the government here seeks would
not increase competition in Topco private label brands";
on the contrary, such relief "would substantially diminish
competition in the supermarket field." 319 F. Supp.
1031, 1043. This Court has not today determined, on
the basis of an examination of the underlying economic
realities, that the District Court's conclusions are incorrect.
Rather, the majority holds that the District
Court had no business examining Topco's practices under
the "rule of reason"; it should not have sought to determine
whether Topco's practices did in fact restrain trade
or commerce within the meaning of § 1 of the Sherman
Act; it should have found no more than that those practices
involve a "horizontal division of markets" and are,
by that very fact, per se violations of the Act.
I do not believe that our prior decisions justify the
result reached by the majority. Nor do I believe that
a new per se rule should be established in disposing of
this case, for the judicial convenience and ready pre-
1 The District Court's findings of fact include the following:
"33. A competitively effective private label program to be independently
undertaken by a single retailer or chain would require an
annual sales volume of $250 million or more and in order to achieve
optimum efficiency, the volume required would probably have to be
twice that amount." 319 F. Supp. 1031, 1036.
UNITED STATES v. TOPCO ASSOCIATES 615
596 BURGER, C. J., dissenting
dictability that are made possible by per se rules are
not such overriding considerations in antitrust law as
to justify their promulgation without careful prior consideration
of the relevant economic realities in the light
of the basic policy and goals of the Sherman Act.
I
I deal first with the cases upon which the majority relies
in stating that " [ t] his Court has reiterated time and
time again that '[h]orizontal territorial limitations ...
are naked restraints of trade with no purpose except
stifling of competition.' White Motor Co. v. United
States, 372 U. S. 253, 263 (1963)." White Motor, of
course, laid down no per se rule; nor were any horizontal
territorial limitations involved in that case. Indeed,
it was in White Motor that this Court reversed
the District Court's holding that vertically imposed territorial
limitations were per se violations, explaining
that "[w]e need to know more than we do about the
actual impact of these arrangements on competition to
decide whether they . . . should be classified as per se
violations of the Sherman Act." 372 U. S., at 263. The
statement from the White Motor opinion quoted by
the majority today was made without citation of authority
and was apparently intended primarily to make clear
that the facts then before the Court were not to be
confused with horizontally imposed territorial limitations.
To treat dictum in that case as controlling here
would, of course, be unjustified.
Having quoted this dictum from White Motor, the
Court then cites eight cases for the proposition that
horizontal territorial limitations are per se violations of
the Sherman Act. One of these cases, Northern Pacific
R. Co. v. United States, 356 U. S. 1 ( 1958), dealt exclusively
with a prohibited tying arrangement and is improperly
cited as a case concerned with a division of
616 OCTOBER TERM, 1971
BURGER, C. J., dissenting 405 u. s.
markets.2 Of the remaining seven cases, four involved
an aggregation of trade restraints that included pricefixing
agreements. Timken Roller Bearing Co. v. United
States, 341 U.S. 593 (1951); United States v. Sealy, Inc.,
388 U. S. 350 (1967); 3 Serta Associates, Inc. v. United
States, 393 U. S. 534 (1969), aff'g 296 F. Supp. 1121
(ND Ill. 1968). Price fixing is, of course, not a factor
in the instant case.
Another of the cases relied upon by the Court, United
States v. National Lead Co., 332 U. S. 319 (1947), involved
a world-wide arrangement• for dividing territo-
2 There is dictum in the case to the effect that United States v.
Addyston Pipe & Steel Co., 85 F. 271 (CA6 1898), aff'd, 175 U.S.
211 (1899), established a "division of markets" as unlawful in and
of itself. 356 U. S., at 5. As I will show, however, Addyston Pipe
established no such thing; it was primarily a price-fixing case.
3 I cannot agree with the Court's description of Seal,y as being "on
all fours with this case." Ante, at 609. Seal,y does support the
proposition that the restraints on the Topco licensees are horizontally
imposed. Beyond that, however, Sealy is hardly controlling here.
The territorial restrictions in Sealy were found by this Court to be
so intimately a part of an unlawful price-fixing and policing scheme
that the two arrangements fell together:
"[T]his unlawful resale price-fixing activity refutes appellee's claim
that the territorial restraints were mere incidents of a lawful program
of trademark licensing. Cf. Timken Roller Bearing Co. v.
United States, [341 U. S. 593 (1951)]. The territorial restraints
were a part of the unlawful price-fixing and policing." 388 U. S.,
at 356.
4 In summarizing its findings, the District Court made the following
statements:
"When the story is seen as a whole, there is no blinking the fact
that there is no free commerce in titanium. Every pound of it is
trammelled by privately imposed regulation. The channels of this
commerce have not been formed by the winds and currents of
competition. They are, in large measure, artificial canals privately
constructed ....
" ... No titanium pigments enter the United States except with
the consent of NL [defendant National Lead]. No foreign titanium
UNITED STATES v. TOPCO ASSOCIATES 617
596 BURGER, C. J., dissenting
nes, pooling patents, and exchanging technological information.
The arrangement was found illegal by the
District Court without any reliance on a per se rule; 5
this Court, in affirming, was concerned almost exclusively
with the remedies ordered by the District Court and
made no attempt to declare a per se rule to govern the
merits of the case.
In still another case on which the majority relies,
United States v. Arnold, Schwinn & Co., 388 U. S. 365
( 1967), the District Court had, indeed, held that the
agreements between the manufacturer and certain of its
distributors, providing the latter with exclusive territories,
were horizontal in nature and that they were, as
such, per se violations of the Act. 237 F. Supp. 323,
342-343. Since no appeal was taken from this part of
the District Court's order,6 that issue was not before this
Court in its review of the case. Indeed, in dealing
with the issues that were before it, this Court followed
an approach markedly different from that of the District
Court. First, in reviewing the case here, the Court
made it clear that it was proceeding under the "rule of
pigments move in interstate commerce except with like approval.
No titanium pigment produced by NL may leave the ports of the
United States for points outside the Western Hemisphere." 63 F.
Supp. 513, 521-522.
The District Court clearly decided the case under the "rule of
reason." It found that there was "a combination and conspiracy
in restraint of trade; and the restraint is unreasonable. As such it
is outlawed by Section 1 of the Sherman Act." 63 F. Supp., at 523
( emphasis added). The court rejected the argument made by the
defense that the basic agreement on which the arrangement was
founded was permissible under "the doctrine which validates covenants
in restraint of trade when reasonably ancillary to a lawful
principal purpose . . . . [T]he world-wide territorial allocation was
unreasonable in scope when measured against the business actuaHties."
Id., at 524 ( emphasis added).
6 "The appellees did not appeal from the findings and order invalidating
[territorial] restraints on resale by distributors . ..."
388 U. S., at 368.
618 OCTOBER TERM, 1971
BURGER, C. J., dissenting 405 U.S.
reason," and not by per se rule; 7 second, the Court saw
the issues presented as involving vertical, not horizontal,
restraints.8 It can hardly be contended, therefore, that
this Court's decision in Schwinn is controlling precedent
for the application in the instant case of a per se rule
that prohibits horizontal restraints without regard to
their market effects.
Finally, there remains the eighth of the cases relied
upon by the Court-actually, the first in its list of
"authorities" for the purported per se rule. Circuit
Judge (later Chief Justice) Taft's opinion for the court
in United States v. Addyston Pipe & Steel Co., 85 F.
271 (CA6 1898), aff'd, 175 U.S. 211 (1899), has generally
been recognized-and properly so- as a fully authoritative
exposition of antitrust law. But neither he,
nor this Court in affirming, made any pretense of establishing
a per se rule against all agreements involving
horizontal territorial limitations. The defendants in that
case were manufacturers and vendors of cast-iron pipe
who had "entered into a combination to raise the prices
for pipe" throughout a number of States "constituting
considerably more than three-quarters of the territory of
the United States, and significantly called ... 'pay territory.'"
85 F., at 291. The associated defendants in
7 "The Government does not contend that a per se violation of the
Sherman Act is presented by the practices which are involved in this
appeal . . . . Accordingly, we are remitted to an appraisal of the
market impact of these practices.
" ... [W]e must look to the specifics of the challenged practices
and their impact upon the marketplace in order to make a judgment
as to whether the restraint is or is not 'reasonable' in the special
sense in which § I of the Sherman Act must be read for purposes of
this type of inquiry." 388 U. S., at 373-374.
8 "We are here confronted with challenged vertical restrictions as
to territory and dealers. . . . These are not horizontal restraints,
in which the actors are distributors with or without the manufacturer's
participation." 388 U. S., at 372.
l l l
UNITED STATES v. TOPCO ASSOCIATES 619
596 BURGER, C. J., dissenting
combination controlled two-thirds of the manufactured
output of such pipe in this "pay territory"; certain
cities ("reserved" cities) within the territory were assigned
to particular individual defendants who sold pipe
in those cities at prices fixed by the association, the
other defendants submitting fictitious bids and the selling
defendants paying a fixed "bonus" to the association
for each sale. Outside the "reserved" cities, all sales
by the defendants to customers in the "pay territory"
were, again, at prices determined by the association and
were allocated to the association member who offered,
in a secret auction, to pay the largest "bonus" to the
association itself. The effect was, of course, that the
buying public lost all benefit of competitive pricing.
Although the case has frequently-and quite properlybeen
cited as a horizontal allocation-of-markets case,
the sole purpose of the secret customer allocations was
to enable the members of the association to fix prices
charged to the public at noncompetitive levels. Judge
Taft rejected the defendants' argument that the prices
actually charged were "reasonable"; he held that it
was sufficient for a finding of a Sherman Act violation
that the combination and agreement of the defendants
gave them such monopoly power that they, rather than
market forces, fixed the prices of all cast-iron pipe in
three-fourths of the Nation's territory. The case unquestionably
laid important groundwork for the subsequent
establishment of the per se rule against price
fixing. It did not, however, establish that a horizontal
division of markets is, without more, a per se violation
of the Sherman Act.
II
The foregoing analysis of the cases relied upon by
the majority indicates to me that the Court is not merely
following prior holdings; on the contrary, it is estab620
OCTOBER TERM, 1971
BURGER, C. J., dissenting 405 U.S.
lishing a new per se rule. In the face of the District
Court's well supported findings that the effects of such
a rule in this case will be adverse to the public welf are,9
the Court lays down that rule without regard to the
impact that the condemned practices may have on
competition. In doing so, the Court virtually invites
Congress to undertake to determine that impact. Ante,
at 611-612. I question whether the Court is fulfilling the
role assigned to it under the statute when it declines
to make this determination; in any event, if the Court
is unwilling on this record to assess the economic impact,
it surely should not proceed to make a new rule
to govern the economic activity. White Motor Co. v.
United States, 372 U. S., at 263.
When one of his versions of the proposed Act was
before the Senate for consideration in 1890, Senator
Sherman, in a lengthy, and obviously carefully prepared,
address to that body, said that the bill sought
"only to prevent and control combinations made
with a view to prevent competition, or for the restraint
of trade, or to increase the profits of the
producer at the cost of the consumer. It is the
unlawful combination, tested by the rules of common
law and human experience, that is aimed at
9 Among the facts found by the District Court are the following:
private-label brand merchandising, which is beyond the reach of the
small chains acting independently and which by definition depends
upon local exclusivity, permits the merchandiser to offer the public
"lower consumer prices on products of high quality" and "to bargain
more favorably with national brand manufacturers"; such merchandising
fosters "the establishment of a broader supply base of manufacturers,
thereby decreasing dependence upon a relatively few, large
national brand manufacturers"; it also enables "[sJmaller manufacturers,
the most common source of private label products, who
are generally unable to develop national brand name recognition for
their products, [to] benefit . . by the assurance of a substantial
market for their products .... " 319 F. Supp., at 1035.
596
UNITED STATES v. TOPCO ASSOCIATES 621
BURGER, C. J., dissenting
by this bill, and not the lawful and useful
combination.
"I admit that it is difficult to define in legal
language the precise line between lawful and unlawful
combinations. This must be left for the courts
to determine in each particular case. All that we,
as lawmakers, can do is to declare general principles,
and we can be assured that the courts will apply
them so as to carry out the meaning of the
law .... " 21 Cong. Rec. 2457, 2460.
In "carry[ing] out the meaning of the law" by making
its "determin[ations] in each particular case," this Court
early concluded that it was Congress' intent that a "rule
of reason" be applied in making such case-by-case determinations.
Standard Oil Co. v. United States, 221 U.S.
1, 60 (1911). And that rule of reason was to be applied
in light of the Act's policy to protect the "public interests."
United States v. American Tobacco Co., 221 U. S.
106, 179 (1911). The per se rules that have been developed
are similarly directed to the protection of the public
welfare; they are complementary to, and in no way
inconsistent with, the rule of reason. The principal
advantages that flow from their use are, first, that enforcement
and predictability are enhanced and, second,
that unnecessary judicial investigation is avoided in
those cases where practices falling within the scope of
such rules are found. As the Court explained in Northern
Pacific R. Co. v. United States, supra, at 5,
"[T] here are certain agreements or practices which
because of their pernicious effect on competition and
lack of any redeeming virtue are conclusively presumed
to be unreasonable and therefore illegal without
elaborate inquiry as to the precise harm they
have caused or the business excuse for their use."
622 OCTOBER TERM, 1971
BURGER, C. J., dissenting 405 u. s.
In formulating a new per se rule today, the Court does
not tell us what "pernicious effect on competition" the
practices here outlawed are perceived to have; nor does
it attempt to show that those practices "lack ... any redeeming
virtue." Rather, it emphasizes only the importance
of predictability, asserting that "courts are of
limited utility in examining difficult economic problems"
and have not yet been left free by Congress to "ramble
through the wilds of economic theory in order to maintain
a flexible approach." 10
With all respect, I believe that there are two basic
fallacies in the Court's approach here. First, while I
would not characterize our role under the Sherman
Act as one of "rambl[ing] through the wilds," it is indeed
one that requires our "examin [ation of] difficult
economic problems." We can undoubtedly ease our task,
but we should not abdicate that role by formulation of
per se rules with no justification other than the enhancement
of predictability and the reduction of judicial investigation.
Second, from the general proposition that
per se rules play a necessary role in antitrust law, it does
not follow that the particular per se rule promulgated
today is an appropriate one. Although it might well be
desirable in a proper case for this Court to formulate a
per se rule dealing with horizontal territorial limitations,
it would not necessarily be appropriate for such a rule to
amount to a blanket prohibition against all such limitations.
More specifically, it is far from clear to me why
such a rule should cover those division-of-market agreements
that involve no price fixing and which are con-
10 It seems ironical to me that in another antitrust case decided
today, Ford Motor Co. v. United States, ante, p. 562, the Court, in
contrast to its handling of the instant case, goes out of its way to
commend another District Court for its treatment of a problem involving
"predictions and assumptions concerning future economic and
business events." Id., at 578.
UNITED STATES v. TOPCO ASSOCIATES 623
596 BURGER, C. J ., dissenting
cerned only with trademarked products that are not in a
monopoly or near-monopoly position with respect to
competing brands. The instant case presents such an
agreement; I would not decide it upon the basis of a per
se rule.11
The District Court specifically found that the horizontal
restraints involved here tend positively to promote
competition in the supermarket field and to produce lower
costs for the consumer. The Court seems implicitly to
accept this determination, but says that the Sherman
Act does not give Topco the authority to determine for
itself "whether or not competition with other supermarket
chains is more desirable than competition in the sale of
Topco-brand products." Ante, at 611. But the majority
overlooks a further specific determination of the District
Court, namely, that the invalidation of the restraints
here at issue "would not increase competition in Topco
private label brands." 319 F. Supp., at 1043. Indeed,
the District Court seemed to believe that it would, on
the contrary, lead to the likely demise of those brands in
time. And the evidence before the District Court would
appear to justify that conclusion.
11 The national chains market their own private-label products,
and these products are available nowhere else than in the stores of
those chains. The stores of any one chain, of course, do not engage
in price competition with each other with respect to their chain's
private-label brands, and no serious suggestion could be made that
the Sherman Act requires otherwise. I fail to see any difference
whatsoever in the economic effect of the Topco arrangement for the
marketing of Topco-brand products and the methods used by the
national chains in marketing their private-label brands. True,. the
Topco arrangement involves a "combination," while each of the
national chains is a single integrated corporation. The controlling
consideration, however, should be that in neither case is the policy
of the Sherman Act offended, for the practices in both cases work
to the benefit, and not to the detriment, of the ronsnming public.
624 OCTOBER TERM, 1971
BURGER, C. J., dissenting 405 U.S.
There is no national demand for Topco brands, nor
has there ever been any national advertising of those
brands. It would be impracticable for Topco, with its
limited financial resources, to convert itself into a national
brand distributor in competition with distributors
of existing national brands. Furthermore, without the
right to grant exclusive licenses, it could not attract and
hold new members as replacements for those of its present
members who, following the pattern of the past, eventually
grow sufficiently in size to be able to leave the
cooperative organization and develop their own individual
private-label brands. Moreover, Topco's present
members, once today's decision has had its full impact
over the course of time, will have no more reason to
promote Topco products through local advertising and
merchandising efforts than they will have such reason
to promote any other generally available brands.
The issues presented by the antitrust cases reaching this
Court are rarely simple to resolve under the rule of reason;
they do indeed frequently require us to make difficult
economic determinations. We should not for that
reason alone, however, be overly zealous in formulating
new per se rules, for an excess of zeal in that regard is
both contrary to the policy of the Sherman Act and detrimental
to the welfare of consumers generally. Indeed,
the economic effect of the new rule laid down by the
Court today seems clear: unless Congress intervenes,
grocery staples marketed under private-label brands with
their lower consumer prices will soon be available only
to those who patronize the large national chains.
,
ALEXANDER v. LOUISIANA
Syllabus
ALEXANDER v. LOUISIANA
CERTIORARI TO THE SUPREME COURT OF LOUISIANA
No. 70-5026. Argued December 6-7, 1971-
Decided April 3, 1972
625
Petitioner, a Negro, attacks his rape conviction in Lafayette Parish,
which was affirmed by the Louisiana Supreme Court, contending
that the grand jury selection procedures followed in his case were
invidiously discriminatory against Negroes and, because of a statutory
exemption provision, against women. The jury commissioners
(all white) sent out questionnaires (including a space for
racial designation) to those on a list compiled from nonracial
sources. Of the 7,000-odd returns, 1,015 (14%) were from Negroes,
though Negroes constituted 21 % of the parish population
presumptively eligible for grand jury service. By means of two
culling-out procedures, when racial identifications that the commissioners
had attached to the forms were plainly visible, the pool
was reduced to 400, of whom 27 (7%) were Negro, from which
group the 20-man grand jury venires were drawn. Petitioner's
venire included one Negro ( 5%), and the grand jury that indicted
him had none. There was no evidence of conscious ra.cial selection
and one commissioner testified that race was no consideration.
Held:
1. Petitioner made out a prima facie case of invidious racial discrimination
in the selection of the grand jury that indicted himnot
only on a statistical basis but by a showing that the selection
procedures were not racially neutral-and the State, which did not
adequately explain the disproportionately low number of Negroes
throughout the selection process, did not meet the burden of rebutting
the presumption of unconstitutionality in the procedures
used. Cf. Avery v. Georgia, 345 U. S. 559; Whitus v. Georgia,
385 U. S. 545. Pp. 628--632.
2. Petitioner's contentions regarding discrimination against
women in the selection of grand jurors are not reached. Pp. 633-
634.
255 La. 941, 233 So. 2d 891, reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C. J., and BRENNAN, STEWART, MARSHALL, and BLACKMUN, JJ.,
joined, and in Part I of which DOUGLAS, J., joined. DouaLAs, J.,
filed a concurring opinion, post, p. 634. PowELL and REHNQUIST,
JJ., took no part in the consideration or decision of the case.
626 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Charles Stephen Ralston argued the cause for petitioner.
With him on the brief were Jack Greenberg,
James M. Nabrit Ill, Margrett Ford, and Charles Finley.
Bertrand DeBlanc argued the cause for respondent.
With him on the brief were Jack P. F. Gremillion, Attorney
General of Louisiana, Harry Howard, Assistant
Attorney General, and Charles R. Sonnier.
Birch Bayh filed a brief for the National Federation
of Business and Professional Women's Clubs, Inc., as
amicus curiae urging reversal.
MR. JUSTICE WHITE delivered the opinion of the Court.
After a jury trial in the District Court for the Fifteenth
Judicial District of Lafayette Parish, Louisiana,
petitioner, a Negro, was convicted of rape and sentenced
to life imprisonment. His conviction was affirmed on
appeal by the Louisiana Supreme Court,1 and this Court
granted certiorari! Prior to trial, petitioner had moved
to quash the indictment because (1) Negro citizens were
included on the grand jury list and venire in only token
numbers, and (2) female citizens were systematically
excluded from the grand jury list, venire, and impaneled
grand jury.3 Petitioner therefore argued that the indictment
against him was invalid because it was returned
by a grand jury impaneled from a venire made up con-
1 255 La. 941, 233 So. 2d 891 (1970). Petitioner was indicted for
aggravated rape, and a 12-member jury unanimously returned a
verdict of "Guilty without Capital Punishment."
2 401 u. s. 936 (1971).
3 Petitioner does not here challenge the composition of the petit
jury that convicted him. The principles that apply to the systematic
exclusion of potential jurors on the ground of race are essentially
the same for grand juries and for petit juries, however.
Pierre v. Louisiana, 306 U.S. 354,358 (1939). See generally Neal
v. Delaware, 103 U.S. 370 (1881).
l I
ALEXANDER v. LOUISIANA 627
625 Opinion of the Court
trary to the requirements of the Equal Protection Clause
and the Due Process Clause of the Fourteenth Amendment.
Petitioner's motions were denied.
According to 1960 U. S. census figures admitted into
evidence below, Lafayette Parish contained 44,986 persons
over 21 years of age and therefore presumptively
eligible for grand jury service; • of this total, 9,473
persons (21.06%) were Negro.5 At the hearing on petitioner's
motions to quash the indictment, the evidence
revealed that the Lafayette Parish jury commission consisted
of five members, all of whom were white, who had
been appointed by the court. The commission compiled
a list of names from various sources ( telephone directory,
city directory, voter registration rolls, lists prepared by
the school board, and by the jury commissioners themselves)
and sent questionnaires to the persons on this list
to determine those qualified for grand jury service. The
questionnaire included a space to indicate the race
of the recipient. Through this process, 7,374 questionnaires
were returned, 1,015 of which (13.76%.) were from
Negroes,6 and the jury commissioners attached to each
4 The general qualifications for · jurors set by Louisiana law are
that a person must be a citizen of the United States and of Louisiana
who has resided in the parish for at least a year prior to jury service,
be at least 21 years old, be able to read, write, and speak the
English language, "[nJot be under interdiction, or incapable of serving
as a juror because of a mental or physical infirmity," and "[n]ot be
under indictment for a felony, nor have been convicted of a felony
for which he has not been pardoned." La. Code Crim. Proc.,. Art.
401 (1967).
5 Testimony at the hearing on the motion to quash the indictment
also revealed that there were 40,896 registered voters in the
parish. Of this total, 17,803 were whire males, and 16,483 were
white females; 3,573 were Negro males, and 3,037 were Negro females.
App. 38.
6 One hundred and eighty-nine questionnaires had no racial designation.
App. 15.
628 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
questionnaire an information card designating, among
other things, the race of the person, and a white slip
indicating simply the name and address of the person.
The commissioners then culled out about 5,000 questionnaires,
ostensibly on the ground that these persons were
not qualified for grand jury service or were exempted
under state law. The remaining 2,000 sets of papers
were placed on a table, and the papers of 400 persons
were selected, purportedly at random, and placed in a
box from which the grand jury panels of 20 for Lafayette
Parish were drawn. Twenty-seven of the persons thus
selected were Negro (6.75%).1 On petitioner's grand
jury venire, one of the 20 persons drawn was Negro
( 5%), but none of the 12 persons on the grand jury
that indicted him, drawn from this 20, was Negro.
I
For over 90 years, it has been established that a criminal
conviction of a Negro cannot stand under the Equal
Protection Clause of the Fourteenth Amendment if it is
based on an indictment of a grand jury from which
Negroes were excluded by reason of their race. Strauder
v. West Virginia, 100 U. S. 303 (1880); Neal v. Delaware,
103 U.S. 370 (1881). Although a defendant has no
right to demand that members of his race be included on
the grand jury that indicts him, Virginia v. Rives, 100
U. S. 313 (1880), he is entitled to require that the State
not deliberately and systematically deny to members of
his race the right to participate as jurors in the admin-
1 There are some inconsistencies in the record as to the total number
of Negroes in this group. The State introduced a certification
by the clerk of the court stating that there were 25 Negroes and four
persons with no race shown. App. 15. A count of the actual
list of jurors, however, shows 27 Negroes and five persons with no
race shown. App. 16-24.
ALEXANDER v. LOUISIANA 629
625 Opinion of the Court
istration of justice.8 Ex parte Virginia, 100 U. S. 339
(1880); Gibson v. Mississippi, 162 U.S. 565 (1896). Cf.
Hernandez v. Texas, 347 U. S. 475 (1954). It is only
the application of these settled principles that is at
issue here.
This is not a case where it is claimed that there have
been no Negroes called for service within the last 30
years, Patton v. Mississippi, 332 U. S. 463, 464 (1947);
only one Negro chosen within the last 40 years, Pierre
v. Louisiana, 306 U. S. 354, 359 (1939); or no Negroes
selected "within the memory of witnesses who had lived
[in the area] all their lives," Norris v. Alabama, 294
U. S. 587, 591 ( 1935). Rather, petitioner argues that,
in his case, there has been a consistent process of progressive
and disproportionate reduction of the number of
Negroes eligible to serve on the grand jury at each stage
of the selection process until ultimately an all-white
grand jury was selected to indict him.
In Lafayette Parish, 21 % of the population was Negro
and 21 or over, therefore presumptively eligible for grand
jury service. Use of questionnaires by the jury commissioners
created a pool of possible grand jurors which
was 14% Negro, a reduction by one-third of possible
black grand jurors. The commissioners then twice culled
this group to create a list of 400 prospective jurors, 7%
of whom were Negro-a further reduction by one-half.
8 Section 4 of the 1875 Civil Rights Act, 18 Stat. 336, now
codified as 18 U. S. C. § 243, affinns and reinforces this constitutional
right: "No citizen possessing all other qualifications which
are or may be prescribed by I.aw shall be disqualified for service as
grand or pet.it juror in any court of the United States, or of any
State on account of race, color, or previous condition of servitude;
and whoever, being an officer or other person charged with any duty
in the selection or summoning of jurors, excludes or fails to summon
any citizen for such cause, shall be fined not more than $5,000."
630 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
The percentage dropped to 5% on petitioner's grand jury
venire and to zero on the grand jury that actually
indicted him. Against this background, petitioner argues
that the substantial disparity between the proportion of
blacks chosen for jury duty and the proportion of blacks
in the eligible population raises a strong inference that
racial discrimination and not chance has produced this
result because elementary principles of probability make
it extremely unlikely that a random selection process
would, at each stage, have so consistently reduced the
number of Negroes.9
This Court has never announced mathematical standards
for the demonstration of "systematic" exclusion of
blacks but has, rather, emphasized that a factual inquiry
is necessary in each case that takes into account all
possible explanatory factors. The progressive decimation
of potential Negro grand jurors is indeed striking
here, but we do not rest our conclusion that petitioner
has demonstrated a prima facie case of invidious racial
discrimination on statistical improbability alone, for the
selection procedures themselves were not racially neutral.
The racial designation on both the questionnaire and the
information card provided a clear and easy opportunity
for racial discrimination. At two crucial steps in the
selection process, when the number of returned questionnaires
was reduced to 2,000 and when the final selection
of the 400 names was made, these racial identifications
were visible on the forms used by the jury
commissioners, although there is no evidence that the
commissioners consciously selected by race. The situa-
9 We take note, as we did in Whitu.s v. Georgia, 385 U.S. 545, 552
n. 2 (1967), of petitioner's demonstration that under one statistical
technique of calculating probability, the chances that 27 Negroes
would have been selected at random for the 400-member final jury
list, when 1,015 out of the 7,374 questionnaires returned were from
Negroes, are one in 20,000. Brief for Petitioner 18 n. 18.
ALEXANDER v. LOUISIANA 631
625 Opinion of t.he Court
tion here is thus similar to A very v. Georgia, 345 U. S.
559 (1953), where the Court sustained a challenge to
an array of petit jurors in which the names of prospective
jurors had been selected from segregated tax lists.
Juror cards were prepared from these lists, yellow cards
being used for Negro citizens and white cards for whites.
Cards were drawn by a judge, and there was no evidence
of specific discrimination. The Court held that such
evidence was unnecessary, however, given the fact that
no Negroes had appeared on the final jury: "Obviously
that practice makes it easier for those to discriminate
who are of a mind to discriminate." 345 U. S., at 562.
Again, in Whitus v. Georgia, 385 U. S. 545 (1967), the
Court reversed the conviction of a defendant who had
been tried before an all-white petit jury. Jurors had
been selected from a one-volume tax digest divided into
separate sections of Negroes and whites; black taxpayers
also had a " ( c)" after their names as required by Georgia
law at the time. The jury commissioners testified that
they were not aware of the " ( c)" appearing after the
names of the Negro taxpayers; that they had never included
or excluded anyone because of race; that they had
placed on the jury list only those persons whom they
knew personally; and that the jury list they compiled
had had no designation of race on it. The county from
which jury selection was made was 42% Negro, and
27% of the county's taxpayers were Negro. Of the 33
persons drawn for the grand jury panel, three (9%)
were Negro, while on the 19-member grand jury only
one was Negro; on the 90-man venire from which the
petit jury was selected, there were seven Negroes (8% ),
but no Negroes appeared on the actual jury that tried
petitioner. The Court held that this combination of
factors constituted a prima facie case of discrimination,
and a similar conclusion is mandated in the present case.
Once a prima f acie case of invidious discrimination is
632 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
established, the burden of proof shifts to the State to
rebut the presumption of unconstitutional action by
showing that permissible racially neutral selection criteria
and procedures have produced the monochromatic
result. Turner v. Fouche, 396 U. S. 346, 361 (1970);
Eubanks v. Louuriana, 356 U. S. 584, 587 (1958). The
State has not carried this burden in this case; it has not
adequately explained the elimination of Negroes during
the process of selecting the grand jury that indicted
petitioner. As in Whitus v. Georgia, supra, the clerk
of the court, who was also a member of the jury commission,
testified that no consideration was given to race
during the selection procedure. App. 34. The Court
has squarely held, however, that affirmations of good faith
in making individual selections are insufficient to dispel
a prima facie case of systematic exclusion. Turner v.
Fouche, supra, at 361; Jones v. Georgia, 389 U. S. 24,
25 ( 1967) ; Sims v. Georgia, 389 U. S. 404, 407 ( 1967).
"The result bespeaks discrimination, whether or not it
was a conscious decision on the part of any individual
jury commissioner." Hernandez v. Texas, 347 U. S., at
482. See also Norris v. Alabama, 294 U.S., at 598. The
clerk's testimony that the mailing list for questionnaires
was compiled from nonracial sources is not, in itself,
adequate to meet the State's burden of proof, for the
opportunity to discriminate was presented at later stages
in the process. The commissioners, in any event, had
a duty "not to pursue a course of conduct in the administration
of their office which would operate to discriminate
in the selection of jurors on racial grounds." Hill
v. Texas, 316 U. S. 400, 404 (1942). See also Smith v.
Texas, 311 U. S. 128, 130 (1940). Cf. Carter v. Jury
Commission, 396 U. S. 320, 330 (1970). We conclude,
therefore, that "the opportunity for discrimination was
present and [that it cannot be said] on this record that
it was not resorted to by the commissioners." Whitus
v. Georgia, supra, at 552.
I
ALEXANDER v. LOUISIANA 633
625 Opinion of the Court
II
Petitioner also challenges the Louisiana statutory
exemption of women who do not volunteer for grand
jury service. Article 402, La. Code Crim. Proc. This
claim is novel in this Court and, when urged by a
male, finds no support in our past cases. The strong
constitutional and statutory policy against racial discrimination
has permitted Negro defendants in criminal
cases to challenge the systematic exclusion of Negroes
from the grand juries that indicted them. Also, those
groups arbitrarily excluded from grand or petit jury
service are themselves afforded an appropriate remedy.
Cf. Carter v. Jury Commission, supra. But there is
nothing in past adjudications suggesting that petitioner
himself has been denied equal protection by
the alleged exclusion of women from grand jury
service. Although the Due Process Clause guarantees
petitioner a fair trial, it does not require the States
to observe the Fifth Amendment's provision for presentment
or indictment by a grand jury. In Duncan v.
Louisiana, 391 U. S. 145 (1968), the Court held that
because trial by jury in criminal cases under the Sixth
Amendment is "fundamental to the American scheme of
justice," id., at 149, such a right was guaranteed to defendants
in state courts by the Fourteenth Amendment,
but the Court has never held that federal concepts of a
"grand jury," binding on the federal courts under the
Fifth Amendment, are obligatory for the States. Hurtado
v. California, 110 U. S. 516, 538 (1884).
Against this background and because petitioner's conviction
has been set aside on other grounds, we follow
our usual custom of avoiding decision of constitutional
issues unnecessary to the decision of the case before us.
Burton v. United States, 196 U. S. 283, 295 (1905).
See Ashivander v. Tennessee Valley Authority, 297 U.S.
288, 346~348 (1936) (Brandeis, J., concurring). The
634 OCTOBER TERM, 1971
DouGLAS, J.1 concurring 405 U.S.
State may or may not recharge petitioner, a properly
constituted grand jury may or may not return another
indictment, and petitioner may or may not be convicted
again. See Ballard v. United States, 329 U. S. 187, 196
(1946).
Reversed.
MR. JUSTICE POWELL and MR. JusTICE REHNQUIST
took no part in the consideration or decision of this case.
MR. JusTICE DOUGLAS, concurring.
While I join Part I of the Court's opinion, I am convinced
we should also reach the constitutionality of
Louisiana's exclusion of women from jury service. The
issue is squarely presented, it hrui been thoroughly briefed
and argued, and it is of recurring importance. The Court
purports to follow "our usual custom" of avoiding unnecessary
constitutional issues. But that cannot be the
sole rationale, for both questions are of constitutional
dimension. We could just as well say that deciding
the constitutionality of excluding women from juries
renders it unnecessary to reach the question of racial
exclusion.
It can be argued that the racial exclusion admits of the
"easier" analysis. But this Court does not sit to decide
only "easy" questions. And even when faced with
"hard" constitutional questions, we have often decided
cases on alternate grounds where a decision on only one
would have been dispositive. See, e. g., Dunn v. Blumstein,
ante, p. 330.
Petitioner complains of the exclusion of blacks and
"'.Omen from the grand jury which indicted him. Conceivably,
he could have also complained of the exclusion
of several other minority groups. Would he then be relegated
to suffer repetitive re-indictment and re-conviction
while this court considered the exclusion of each group
in a separate lawsuit?
ALEXANDER v. LOUISIANA 635
625 Douous, J., concurring
I believe the time has come to reject the dictum in
Strauder v. West Virginia, 100 U. S. 303, 310, that a
State "may confine" jury service "to males." I would
here reach the question we reserved in Hoyt v. Florida,
368 U. S. 57, 60, and hold that Art. 402, La. Code Crim.
Proc.,1 as applied to exclude women as a class from
Lafayette Parish jury rolls, violated petitioner Alexander's
constitutional right to an impartial jury drawn
from a group representative of a cross-section of the
community.2
It is irrelevant to our analysis that Alexander attacks
the composition of the grand jury that indicted him, not
the petit jury which convicted him, for it is clear that a
State which has a grand jury procedure must administer
that system consonantly with the Federal Constitution.
The Court asserts, however, that "federal concepts" of
a grand jury do not obligate the States, and cites Hurtado
v. California, 110 U. S. 516, 538. Ante, at 633. But
Hurtado supports no such proposition. That case
merely held that the Fifth Amendment grand jury requirement
was not binding on the States. It said nothing
as to the constitutional requirements which obtain once
a State chooses to provide a grand jury, and we are
directed to no other case which does speak to the subject.
But this Court has said time and again, regardless of a
State's freedom to reject the federal grand jury, and to
reject even the petit jury for offenses punishable by less
than six months' imprisonment, Baldwin v. New York,
399 U. S. 66, "Once the State chooses to provide grand
1 Article 402, La. Code Crim. Proc.: ''A woman shall not be selected
for jury service unless she has previously filed with the clerk of court
of the parish in which she resides a written declaration of her desire
to be subject to jury service."
2 The fact that Alexander is a male challenging the exclusion of
females from the jury rolls is not of significance, for his claim rests,
not on equal protection principles, but on the right of any defendant
to an impartial jury, no matter what his sex or race.
636 OCTOBER TERM, 1971
DoUGLAS, J., concurring 405U.S.
and petit juries, whether or not constitutionally required
to do so, it must hew to federal constitutional criteria
.... " Carter v. Jury Commission, 396 U. S. 320,
330.3
It is furthermore clear that just such a "federal constitutional
criteri[on]" is that the grand jury, just as
the petit jury, must be drawn from a representative
cross-section of the community. The Court was speaking
of both grand and petit juries in Carter v. Jury Commission,
supra, when, quoting Smith v. Texas, 311 U. S.
128, 130, it defined the jury as "a body truly representative
of the community." 396 U. S., at 330. The Court
was speaking of grand and petit juries when it said in
Brown v. Allen, 344 U.S. 443,474: "Our duty to protect
the federal constitutional rights of all does not mean we
must or should impose on states our conception of the
proper source of jury lists, so long as the source reasonably
reflects a cross-section of the population suitable
in character and intelligence for that civic duty." (Emphasis
supplied.) As Mr. Justice Black said, speaking
for the Court in Pierre v. Louisiana, 306 U. S. 354, 358:
"Indictment by Grand Jury and trial by jury cease to
harmonize with our traditional concepts of justice at the
very moment particular groups, classes or races ... are
excluded as such from jury service." (Footnote
omitted.)
The requirement that a jury reflect a cross-section of the
community occurs throughout our jurisprudence: "The
American tradition of trial by jury, considered in connection
with either criminal or civil proceedings, necess
While Carter arose under the Equal Protection Clause, and concerned
the right of prospective jurors excluded from the venire solely
by reason of their race, the analysis is the same in the instant case,
where the question is the accused's right to an impartial jury.
Turner v. Loui.siana, 379 U. S. 466.
ALEXANDER v. LOUISIANA 637
625 Doum..As, J., concurring
sarily contemplates an impartial jury drawn from a crosssection
of the community. Smith v. Texas, 311 U. S.
128, 130; Glasser v. United States, 315 U. S. 60, 85."
Thiel v. Southern Pacific Co., 328 U. S. 217, 220. Accord,
Williams v. Florida, 399 U. S. 78, 100; Witherspoon v.
Illinois, 391 U.S. 510, 520; Ballard v. United States, 329
U. S. 187, 192-193; Labat v. Bennett, 365 F. 2d 698,
722-724.4
This is precisely the constitutional infirmity of the
Louisiana statute. For a jury list from which women
have been systematically excluded is not representative
of the community.
"It is said, however, that an all male panel drawn
from the various groups within a community will
be as truly representative as if women were included.
The thought is that the factors which tend
to influence the action of women are the same as
those which influence the action of men-personality,
background, economic status-and not sex.
Yet it is not enough to say that women when
sitting as jurors neither act nor tend to act as a
class. Men likewise do not act as a class. But, if
the shoe were on the other foot, who would claim
4 The cases most precisely articulating the requirement tha.t a
jury reflect a cross section of the community arose under our
supervisory power over the federal courts. See, e. g., Ballard
v. United States, 329 U. S. 187; Thiel v. Southern Pacific Co., 328
U. S. 217; Glasser v. United States, 315 U. S. 60. The detail
with which these cases were written, however, simply reflects
our obligation to provide guidelines for the federal system. It.
is consistent with our principle of federalism that the States be
permitted greater latitude in fashioning their jury-selection procedures,
but to avoid constitutional infirmity the result must be designed
to produce a representative cross section of the community.
Br<YWn v. Allen, 344 U . S. 443, 474; Carter v. Jury Commission, 396
U. S. 320, 322, 333.
638 OCTOBER TERM, 1971
DouGLAs, J., concurring 405 u. s.
that a jury was truly representative of the community
if all men were intentionally and systematically
excluded from the panel? The truth is that
the two sexes are not fungible; a community made
up exclusively of one is different from a community
composed of both; the subtle interplay of influence
one on the other is among the imponderables. To
insulate the courtroom from either may not in a
given case make an iota of difference. Yet a flavor,
a distinct quality is lost if either sex is excluded.
The exclusion of one may indeed make the jury
less representative of the community than would be
true if an economic or racial group were excluded."
Ballard v. United States, supra, at 193-194. (Emphasis
supplied; footnotes omitted.)
The record before us, moreover, indisputably reveals
that such a systematic exclusion operated with respect
to the Lafayette Parish jury lists. There were no women
on the grand jury that indicted petitioner, and there
were no women on the venire from which the jury was
chosen. While the venire was selected from returns to
questionnaires sent to parish residents, not a single one
of the some 11,000 questionnaires was even sent to a
woman. This was done deliberately.~
5 Mr. LeBlanc, clerk of the court in Lafayette Parish, and a member
of the parish jury commission, testified as to the process by which
the venire was chosen at the hearing on the motion to quash
Alexander's indictment:
"A. The slips or list that are put in the general venire box are
made from questionnaires that I mailed out.
"Q. Now, who is this questionnaire sent to? How is that
determined?
"A. To the different people in the Parish by the registrar of voter's
list and the telephone book, city directory, different lists that are
ALEXANDER v. LOUISIANA 639
625 DoUGLAs, J., concurring
The State relies on the fact that the automatic ex€mption
it grants to women is the same as the one upheld
in Hoyt v. Florida, 368 U.S. 57. In Hoyt, however,
there were women on the jury rolls, and the jury commissioners
had made good-faith efforts to include women
on the jury lists despite the fact that they had an automatic
exemption unless they volunteered for service.
Id., at 69 (Warren, C. J., concurring). Here, on the other
hand, only the feeblest efforts were made to interest
women in service,6 and there was testimony that only a
single woman had filled out a jury service questionnaire.1
This, out of a parish population of 45,000 adults, 52%
of whom were female.
The absolute exemption provided by Louisiana, and
no other State,8 betrays a view of a woman's role which
submitted by school board or any list that we can find that we think
we got address [sic] for the mixed race one way or the other.
"Q. Was the questionnaire mailed to any women at all?
"A. We have received some that was filled in by some ladies. I
think one.
"Q. Did you mail any to any women intentionally or did you
intentionally exclude women when you mailed them?
"A. We didn't mail any to the women." App. 35, 53.
6 The only evidence in the record that any effort whatsoever was
expended to encourage women to volunteer for jury service was a
statement by Mr. LeBlanc that he had "discussed that with the Assistant
District Attorney," and that he had "sent her at [sic] different
women's clubs to explain to the women the possibility of being
on the jury." App. 54. He also averred that "we're working
on the women to submit names and intention to serve." Ibid.
As indicated in n. 5, supra, however, these efforts produced but
a single questionnaire from a woman. The 11,000 questionnaires sent
to men, on the other hand, resulted in over 7,000 responses.
App. 15.
7 Testimony of Mr. LeBlanc. See nn. 5--6, supra.
8 No State now prohibits women from service on juries altogether,
Alabama's prohibition having been found unconstitutional in White
640 OCTOBER TERM, 1971
DOUGLAS, J ., concurring 405 U.S.
cannot withstand scrutiny under modern standards.
We once upheld the constitutionality of a state law denying
to women the right to practice law, solely on grounds
of sex. Bradwell v. State, 16 Wall. 130. The rationale
underlying Art. 402 of the Louisiana Code is the same
as that which was articulated by Justice Bradley in
Bradwell:
"Man is, or should be, woman's protector and defender.
The natural and proper timidity and delicacy
which belongs to the female sex evidently
unfits it for many of the occupations of civil life.
The constitution of the family organization, which
is founded in the divine ordinance, as well as in
the nature of things, indicates the domestic sphere
as that which properly belongs to the domain and
functions of womanhood. The harmony, not to say
identity, of interests and views which belong, or
should belong, to the family institution is repugnant
to the idea of a woman adopting a distinct
and independent career from that of her husband
... .
" . . . The paramount destiny and mission of
woman are to fulfil the noble and benign offices
of wife and mother. This is the law of the Creator.
And the rules of civil society must be adapted to
the general constitution of things, and cannot be
based upon exceptional cases." Id., at 141-142.
v. Crook, 251 F. Supp. 401 (MD Ala. 1966). Most States afford
equal treatment to men and women, although exemptions are frequently
provided for women who are pregnant or who have children
under 18 at home. Five States now allow women an absolute exemption,
based solely on their sex, but they must affirmatively request
it. Ga. Code Ann. § 59-124 (1965); Mo. Const., Art. I, § 22 (b);
N. Y. Judiciary Law § 507 (7) (1968); R. I. Gen. Laws Ann. § 9-9-
11 (1970); Tenn. Code Ann. § 22-101, § 22-108 (1955).
ALEXANDER v. LOUISIANA 641
625 DOUGLAS, J., concurring
Classifications based on sex are no longer insulated
from judicial scrutiny by a legislative judgment that
"woman's place is in the home," or that woman is by
her "nature" ill-suited for a particular task. See, e. g.,
Reed v. Reed, 404 U. S. 71. But such a judgment is
precisely that which underpins the absolute exemption
from jury service at issue.9 Insofar as Hoyt, supra,
9 Perhaps the purest articulation of the objection to woman jury
service is that of Judge Turner, dissenting in Rosencrantz v. Territory,
2 Wash. Ter. 267, 5 P. 305 (1884), a case in which a female
defendant challenged the grand jury which indicted her on the
ground that it included married women living with their husbands.
The challenge was rejected over Judge Turner's dissent:
"It is said that the rights of the weaker sex, if I may now call them
so, are more regarded than in the days of Blackstone; and that the
theory of that day, that women were unfitted by physical constitution
and mental characteristics to assume and perform the civil
and political duties and obligations of citizenship, has been exploded
by the advanced ideas of the nineteenth century. This may be true.
No man honors the sex more than I. None has witnessed more
cheerfully the improvement in the laws of the States, and particularly
in the laws of this Territory, whereby many of the disabilities of
that day are removed from them, and their just personal and property
rights put upon an equal footing with those of men. I cannot
say, however, that I wish to see them perform the duties of jurors.
The liability to perform jury duty is an obligation, not a right. In
the case of woman, it is not necessary that she should accept the
obligation to secure or maintain her rights. If it were, I should
stifle all expression of the repugnance that I feel at seeing her introduced
into associations and exposed to influences which, however
others regard it, must, in my opinion, shock and blunt those fine
sensibilities, the possession of which is her chiefest charm, and
the protection of which, under the religion and laws of all countries,
civilized or semi-civilized, is her most sacred right.
"If one woman is competent as a juror, all women having the
same qualifications are competent. If women may try one case, they
may try all cases. It is unnecessary to say more, to suggest the
shocking possibilities to which our wives, mothers, sisters, and
642 OCTOBER TERM, 1971
DouGLAS, J., concurring 405 U.S.
embodies this discredited stereotype, it should be firmly
disapproved.10 See Johnston & Knapp, Sex Discrimination
by Law: A Study in Judicial Perspective, 46
N. Y. U. L. Rev. 675, 708-721 (1971).
daughters may be exposed . . . . These observations, however, are
not pertinent here. The question is, What is the law?
"I say, that the laws now concerning the important incidents of a
jury trial are, by express constitutional provision, what they were
at the common law, and that under that law a jury was no jury
unless it was composed of men." Id., at 278-279, 5 P., at 309-310.
10 In Fay v. New York, 332 U. S, 261, there is also a dictum approving
the constitutionality of excluding women from jury service. Relying
solely on the proposition that: "Until recently, and for nearly
a half-century after the Fourteenth Amendment was adopted, it was
universal practice in the United States to allow only men to sit on
juries," the Court opined that "woman jury service has not so become
a part of the textual or customary law of the land that one
convicted of crime must be set free by this Court if his state has
lagged behind what we personally may regard as the most desirable
practice in recognizing the rights and obligations of womanhood."
Id., at 289-290. This dictum was totally irrelevant to the holding
in Fay, approving New York's special "blue-ribbon" jury system, for
the Court stated flatly that: "The evidence does not show that women
are excluded from the special jury." Id., at 278. Indeed, there
were women on the very jury which was at issue in the case. Ibid.
The "nose-counting" approach which led to the Fay Court's refusal
to recognize woman jury service as "part of the textual or
customary law of the land" has, of course, been thoroughly undP-rmined
by subsequent events. See n. 8, supra. It has been suggested
that the decision itself was overruled by Duncan v. Loui,.sia=,
391 U. S. 145. Id., at 185 n. 25, and text following (Harlan, J.,
dissenting). And what little there may be left after Duncan, is,
like Strauder v. West Virginia, 100 U. S. 303, and Hoyt v. Florida,
368 U. S. 57, based on an obsolete view of woman's role which
does not square with reality. "[The Fay] dictum . . . calls to
mind-in its total reliance on historical practice as justification for
sex discrimination-the . . . observation . . . that attitudes can
be more formidable than arguments." Johnston & Knapp, Sex
ALEXANDER v. LOUISIANA 643
625 DoUGLAS, J., concurring
Louisiana says, however, that women are not totally
excluded from service; they may volunteer. The State
asserts it is impractical to require women affirmatively
to claim the statutory exemption because of the large
numbers who would do so. This argument misses the
point. Neither man nor woman can be expected to
volunteer for jury service. Hoyt, supra, at 64-65. See
L. Kanowitz, Women and the Law 30 (1969). Thus, the
automatic exemption, coupled with the failure even to
apprise parish women of their right to volunteer, results
in as total an exclusion as would obtain if women were
not permitted to serve at all.
Some violations of due process of law may be excused
in the context of a criminal trial, if the error cannot be
shown to have had an effect on the outcome. See, e. g.,
Giglio v. United States, ante, p. 150; Napue v. /Uinois,
360 U. S. 264, 272. But the right to a representative
jury is one which would be trivialized were a similar
requirement imposed:
"We can never measure accurately the prejudice
that results from the exclusion of certain types of
qualified people from a jury panel. Such prejudice
is so subtle, so intangible, that it escapes the
ordinary methods of proof. It may be absent in
one case and present in another; it may gradually
and silently erode the jury system before it becomes
evident. But it is no less real or meaningful
for our purposes. If the constitutional right to a
jury impartially drawn from a cross-section of the
community has been violated, we should vindicate
Discrimination by Law: A Study in Judicial Perspective, 46 N. Y.
U. L. Rev. 675, 715 (1971). See State v. Emery, 224 N. C. 581,
601, 31 S. E. 2d 858, 871 (1944) (Seawell, J., dissenting). See also
Rosencrantz v. Territory, supra (Turner, J., dissenting).
644 OCTOBER TERM, 1971
DoUGLAS, J., concurring 405 U.S.
that right even though the effect of the violation
has not yet put in a tangible appearance. Otherwise
that right may be irretrievably lost in a welter
of evidentiary rules." Fay v. New York, 332 U. S.
261, 300 (Murphy, J., dissenting).
A statutory procedure which has the effect of excluding
all women does not produce a representative jury,
and is therefore repugnant to our constitutional scheme.
Cf. White v. Crook, 251 F. Supp. 401, 408--409 (MD Ala.
1966). For these reasons, I would hold Art. 402, La.
Code Crim. Proc., to be unconstitutional.
STANLEY v. ILLINOIS 645
Syllabus
STANLEY v. ILLINOIS
CERTIORARI TO THE SUPREME COURT OF ILLINOIS
No. 70-5014. Argued October 19, 1971-Decided April 3, 1972
Petitioner, an unwed father whose children, on the mother's death,
were declared state wards and placed in guardianship, attacked
the Illinois statutory scheme as violative of equal protection.
Under that scheme the children of unmarried fathers, upon the
death of the mother, are declared dependents without any hearing
on parental fitness and without proof of neglect, though such
hearing and proof are required before the State assumes custody
of children of married or divorced parents and unmarried mothers.
The Illinois Supreme Court, holding that petitioner could properly
be separated from his children upon mere proof that he and the
dead mother had not been married and that petitioner's fitness
as a father was irrelevant, rejected petitioner's claim. Held:
1. Under the Due Process Clause of the Fourteenth Amendment
petitioner was entitled to a hearing on his fitness as a parent
before his children were taken from him. Pp. 647-658.
(a) The fact that petitioner can apply for adoption or for
custody and control of his children does not bar his attack on the
dependency proceeding. Pp. 647-649.
(b) The State cannot, consistently with due process requirements,
merely presume that unmarried fathers in general and
petitioner in particular are unsuitable and neglectful parents.
Parental unfitness must be established on the basis of individualized
proof. See Bell v. Burson, 402 U. S. 535. Pp. 649-658.
2. The denial to unwed fathers of the hearing on fitness accorded
to all other parents whose custody of their children is challenged
by the State constitutes a denial of equal protection of the laws.
P. 658.
45 Ill. 2d 132, 256 N. E. 2d 814, reversed and rpm,in<led.
WHITE, J., delivered the opinion of the Court, in which BRENNAN,
STEWART, and MARSHALL, JJ., joined, and in Parts I and II of
which DouGLAS, J., joined. BURGER, C. J., filed a dissenting opinion,
in which BLACKMUN, J., joined, post, p. 659. PowELL and
REHNQUIST, JJ., took no part in the consideration or decision of
the case.
646 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Patrick T. Murphy argued the cause and filed a brief
for petitioner.
Morton E. Friedman, Assistant Attorney General of
Illinois, argued the cause for respondent. With him on
the brief were William J. Scott, Attorney General, and
Joel M. Flaum, First Assistant Attorney General.
Jonathan Weiss and E. Judson Jennings filed a brief
for the Center on Social Welfare Policy and Law as
amicus curiae urging reversal.
Calvin Sawyier and Richard L. Mandel filed a brief
for the Child Care Association of Illinois, Inc., as amicus
curiae.
MR. JusTrcE WHITE delivered the opinion of the Court.
Joan Stanley lived with Peter Stanley intermittently
for 18 years, during which time they had three children.1
When Joan Stanley died, Peter Stanley lost not only her
but also his children. Under Illinois law, the children of
unwed fathers become wards of the State upon the death
of the mother. Accordingly, upon Joan Stanley's death,
in a dependency proceeding instituted by the State of
Illinois, Stanley's children 2 were declared wards of the
State and placed with court-appointed guardians. Stanley
appealed, claiming that he had never been shown to
be an unfit parent and that since married fathers and unwed
mothers could not be deprived of their children without
such a showing, he had been deprived of the equal
protection of the laws guaranteed him by the Fourteenth
Amendment. The Illinois Supreme Court accepted the
fact that Stanley's own unfitness had not been established
but rejected the equal protection claim, holding that
Stanley could properly be separated from his children
upon proof of the single fact that he and the dead mother
1 Uncontradicted testimony of Peter Stanley, App. 22.
2 Only two children are involved in this litigation.
STANLEY v. ILLINOIS 647
645 Opinion of the Court
had not been married. Stanley's actual fitness as a father
was irrelevant. In re Stanley, 45 Ill. 2d 132, 256 N. E.
2d 814 (1970).
Stanley presses his equal protection claim here. The
State continues to respond that unwed fathers are presumed
unfit to raise their children and that it is unnecessary
to hold individualized hearings to determine
whether particular fathers are in fact unfit parents before
they are separated from their children. We granted
certiorari, 400 U. S. 1020 (1971), to determine whether
this method of procedure by presumption could be allowed
to stand in light of the fact that Illinois allows
married fathers-whether divorced, widowed, or separated-
and mothers-even if unwed-the benefit of the
presumption that they are fit to raise their children.
I
At the outset we reject any suggestion that we need
not consider the propriety of the dependency proceeding
that separat€d the Stanleys because Stanley might
be able to regain custody of his children as a guardian or
through adoption proceedings. The suggestion is that
if Stanley has been treated differently from other parents,
the difference is immaterial and not legally cognizable
for the purposes of the Fourteenth Amendment. This
Court has not, however, embraced the general proposition
that a wrong may be done if it can be undone. Cf.
Sn-iadach v. Family Finance Corp., 395 U. S. 337
( 1969). Surely, in the case before us, if there is delay
between the doing and the undoing petitioner suffers from
the deprivation of his children, and the children suffer
from uncertainty and dislocation.
It is clear, moreover, that Stanley does not have the
means at hand promptly to erase the adverse consequences
of the proceeding in the course of which his
children were declared wards of the State. It is first
648 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
urged that Stanley could act to adopt his children. But
under Illinois law, Stanley is treated not as a parent but
as a stranger to his children, and the dependency proceeding
has gone forward on the presumption that he is
unfit to exercise parental rights. Insofar as we are
informed, Illinois law affords him no priority in adoption
proceedings. It would be his burden to establish not
only that he would be a suitable parent but also that he
would be the most suitable of all who might want custody
of the children. Neither can we ignore that in the proceedings
from which this action developed, the "probation
officer," see App. 17, the assistant state's attorney,
see id., at 29-30, and the judge charged with the case,
see id., at 16-18, 23, made it apparent that Stanley, unmarried
and impecunious as he is, could not now expect
to profit from adoption proceedings.3 The Illinois Supreme
Court apparently recognized some or all of these
considerations, because it did not suggest that Stanley's
case was undercut by his failure to petition for adoption.
Before us, the State focuses on Stanley's failure to petition
for "custody and control"-the second route by
which, it is urged, he might regain authority for his
children. Passing the obvious issue whether it would
be futile or burdensome for an unmarried father-without
funds and already once presumed unfit-to petition
for custody, this suggestion overlooks the fact that
legal custody is not parenthood or adoption. A person
appointed guardian in an action for custody and
control is subject to removal at any time without such
3 The Illinois Supreme Court's opinion is not at all contrary to
this conclusion. That court said: "[T]he trial court's comments
clearly indicate the court's willingness to consider a future request by
the father for custody and guardianship." 45 Ill. 2d 132, 135, 256
N. E. 2d 814, 816. (Italics added.) See also the comment of Stanley's
counsel on oral argument: "If Peter Stanley could have adopted
his children, we would not be here today." Tr. of Oral Arg. 7.
STANLEY v. ILLINOIS 649
645 Opinion of the Court
cause as must be shown in a neglect proceeding against
a parent. Ill. Rev. Stat., c. 37, § 705-8. He may not
take the children out of the jurisdiction without the
court's approval. He may be required to report to the
court as to his disposition of the children's affairs. Ill.
Rev. Stat., c. 37, § 705--8. Obviously then, even if
Stanley were a mere step away from "custody and control,''
to give an unwed father only "custody and control"
would still be to leave him seriously prejudiced by
reason of his status.
We must therefore examine the question that Illinois
would have us avoid: Is a presumption that distinguishes
and burdens all unwed fathers constitutionally
repugnant? We conclude that, as a matter of due process
of law, Stanley was entitled to a hearing on his fitness
as a parent before his children were taken from him and
that, by denying him a hearing and extending it to all
other parents whose custody of their children is challenged,
the State denied Stanley the equal protection of
the laws guaranteed by the Fourteenth Amendment.
II
Illinois has two principal methods of removing nondelinquent
children from the homes of their parents.
In a dependency proceeding it may demonstrate that the
children are wards of the State because they have no
surviving parent or guardian. Ill. Rev. Stat., c. 37,
§§ 702-1, 702-5. In a neglect proceeding it may show
that children should be wards of the State because the
present parent(s) or guardian does not provide suitable
care. Ill. Rev. Stat., c. 37, §§ 702-1, 702-4.
The State's right--indeed, duty-to protect minor
children through a judicial determination of their interests
in a neglect proceeding is not challenged here.
Rather, we are faced with a dependency statute that
empowers state officials to circumvent neglect proceedings
650 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
on the theory that an unwed father is not a "parent"
whose existing relationship with his children must be
considered.' "Parents," says the State, "means the
father and mother of a legitimate child, or the survivor
of them, or the natural mother of an illegitimate child,
and includes any adoptive parent," Ill. Rev. Stat., c. 37,
§ 701-14, but the term does not include unwed fathers.
Under Illinois law, therefore, while the children of all
parents can be taken from them in neglect proceedings,
that is only after notice, hearing, and proof of such unfitness
as a parent as amounts to neglect, an unwed
father is uniquely subject to the more simplistic dependency
proceeding. By use of this proceeding, the
State, on showing that the father was not married to the
mother, need not prove unfitness in fact, because it is
presumed at law. Thus, the unwed father's claim of
parental qualification is avoided as "irrelevant."
In considering this procedure under the Due Process
Clause, we recognize, as we have in other cases, that due
process of law does not require a hearing "in every conceivable
case of government impairment of private
interest." Cafeteria Workers v. M cElroy, 367 U. S. 886,
894 (1961). That case explained that "[t]he very nature
of due process negates any concept of inflexible procedures
universally applicable to every imaginable situation"
and firmly established that "what procedures due
process may require under any given set of circumstances
must begin with a determination of the precise nature of
the government function involved as well as of the
private interest that has been affected by governmental
• Even while refusing to label him a "legal parent," the State
does not deny that Stanley has a special interest in the outcome of
these proceedings. It is undisputed that he is the father of these
children, that he lived with the two children whose custody is challenged
all their lives, and that he has supported them.
STANLEY v. ILLINOIS 651
645 Opinion of the Court
action." Id., at 895; Goldberg v. Kelly, 397 U. S. 254,
263 (1970).
The private interest here, that of a man in the children
he has sired and raised, undeniably warrants deference
and, absent a powerful countervailing interest, protection.
It is plain that the interest of a parent in the
companionship, care, custody, and management of his
or her children "come[s] to this Court with a momentum
for respect lacking when appeal is made to liberties which
derive merely from shifting economic arrangements."
Kovacs v. Cooper, 336 U. S. 77, 95 (1949) (Frankfurter,
.T., concurring).
The Court has frequently emphasized the importance
of the family. The rights to conceive and to raise one's
children have been deemed "essential," Meyer v. Nebraska,
262 U. S. 390, 399 (1923), "basic civil rights of
man," Skinner v. Oklahoma, 316 U. S. 535, 541 (1942),
and "[r Jights far more precious ... than property rights,"
May v. Anderson, 345 U.S. 528, 533 (1953). "It is cardinal
with us that the custody, care and nurture of the
child reside first in the parents, whose primary function
and freedom include preparation for obligations the state
can neither supply nor hinder." Prince v. M assachW3etts,
321 U. S. 158, 166 ( 1944). The integrity of the family
unit has found protection in the Due Process Clause of
the Fourteenth Amendment, Meyer v. Nebraska, supra,
at 399, the Equal Protection Clause of the Fourteenth
Amendment, Skinner v. Oklahoma, supra, at 541, and the
Ninth Amendment, Griswold v. Connecticut, 381 U. S.
479, 496 (1965) (Goldberg, J., concurring).
Nor has the law refused to recognize those family relationships
unlegitimized by a marriage ceremony. The
Court has declared unconstitutional a state statute denying
natural, but illegitimate, children a wrongful-death
action for the death of their mother, emphasizing that
652 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
such children cannot be denied the right of other children
because familial bonds in such cases were often as warm,
enduring, and important as those arising within a more
formally orga.nized family unit. Levy v. Louwiana, 391
U. S. 68, 71-72 (1968). "To say that the test of equal
protection should be the 'legal' rather than the biological
relationship is to avoid the issue. For the Equal Protection
Clause necessarily limits the authority of a State
to draw such 'legal' lines as it chooses." Glona v. American
Guarantee Co., 391 U. S. 73, 75-76 (1968).
These authorities make it clear that, at the least,
Stanley's interest in retaining custody of his children is
cognizable and substantial.
For its part, the State has made its interest quite
plain: Illinois has declared that the aim of the Juvenile
Court Act is to protect "the moral, emotional, mental,
and physical welfare of the minor and the best interests
of the community" and to "strengthen the minor's
family ties whenever possible, removing him from the
custody of his parents only when his welfare or safety
or the protection of the public cannot be adequately safeguarded
without removal .... " Ill. Rev. Stat., c. 37,
§ 701-2. These are legitimate interests, well within
the power of the State to implement. We do not question
the assertion that neglectful parents may be separated
from their children.
But we are here not asked to evaluate the legitimacy
of the state ends, rather, to determine whether the
means used to achieve these ends are constitutionally
defensible. What is the state interest in separating
children from fathers without a hearing designed to determine
whether the father is unfit in a particular disputed
case? We observe that the State registers no gain
towards its declared goals when it separates children
from the custody of fit parents. Indeed, if Stanley is a
STANLEY v. ILLINOIS 653
645 Opinion of the Court
fit father, the State spites its own articulated goals when
it needlessly separates him from his family.
In Bell v. Burson, 402 U. S. 535 (1971), we found a
scheme repugnant to the Due Process Clause because it
deprived a driver of his license without reference to the
very factor ( there fault in driving, here fitness as a
parent) that the State itself deemed fundamental to
its statutory scheme. Illinois would avoid the self-contradiction
that rendered the Georgia license suspension
system invalid by arguing that Stanley and all other
unmarried fathers can reasonably be presumed to be
unqualified to raise their children.5
5 Illinois says in its brief, at 21-23.
"[T]he only relevant consideration in determining the propriety
of governmental intervention in the raising of children is whether
the best interests of the child are served by such intervention.
"In effect, IHinois has imposed a statutory presumption that the
best interests of a particular group of children necessitates some governmental
supervision in certain clearly defined situations. The group
of children who are illegitimate are distinguishable from legitimate
children not so much by their status at birth as by the factual differences
in their upbringing. While a legitimate child usually is
raised by both parents with the attendant familial relationships and
a firm concept of home and identity, the illegitimate child normally
knows only one parent-the mother.
" ... The petitioner has premised his argument upon particular
factual circumstances-a lengthy relationship with the mother ...
a familial relationship with the two children, and a general aRimmption
that this relationship approximates that in which the natural
parents are married to each other.
" ... Even if this characterization were accurate (the record is insufficient
to support it) it would not affect the validity of the statutory
definition of parent. . . . The petitioner does not deny that the children
are illegitimate. The record reflects their natural mother's death.
Given these two factors, grounds exist for the State's intervention
to ensure adequate care and protection for these children. This is
true whether or not this particular petitioner assimilates all or none
654 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
It may be, as the State insists, that most unmarried
fathers are unsuitable and neglectful parents.6 It may
also be that Stanley is such a parent and that his children
should be placed in other hands. But all unmarried
fathers are not in this category; some are wholly suited
to have custody of their children.7 This much the State
of the normal chararteristics common to the classification of fathers
who are not married to the mothers of their children."
See also Illinois' Brief 23 ("The comparison of married and
putative fathers involves exclusively factual differences. The most
significant of these are the presence or absence of the father from
the home on a day-to-day basis and the responsibility imposed upon
the relationship"), id., at 24 ( to the same effect), id., at 31 ( quoted
below inn. 6), id., at 24-26 (physiological and other studies are cited
in support of the proposition that men are not naturally inclined to
childrearing), and Tr. of Oral Arg. 31 ("We submit that both
based on history or [sic] culture the very real differences ... between
the married father and the unmarried father, in terms of their
interests in children and their legal responsibility for their children,
that the statute here fulfills the compelling governmental objective
of protecting children ... ").
6 The State speaks of "the general disinterest of putative fathers
in their illegitimate children" (Brief 8) and opines that "[i]n most
instances, the natural father is a stranger to his children." Brief 31.
7 See In re Mark T., 8 Mich. App. 122, 154 N. W. 2d 27 (1967).
There a panel of the Michigan Court of Appeals in unanimously
affirming a circuit court's determination that the father of an
illegitimate son was best suited to raise the boy, said:
"The appellants' presentation in this case proceeds on the assumption
that placing Mark for adoption is inherent.ly preferable to
rearing by his father, that uprooting him from the family which
he knew from birth until he was a year and a half old, secretly
institutionalizing him and later transferring him to strangers is so
incontrovertibly better that no court has the power even to consider
the matter. Hardly anyone would even suggest such a proposition
if we were talking about a child born in wedlock.
"We are not aware of any sociological data justifying the assumption
that an illegitimate child reared by his natural father is less
likely to receive a proper upbringing than one reared by his natural
father who was at one time married to his mother, or that the
STANLEY v. ILLINOIS 655
645 Opinion of the Court
readily concedes, and nothing in this record indicates that
Stanley is or has been a neglectful father who has not
cared for his children. Given the opportunity to make
his case, Stanley may have been seen to be deserving of
custody of his offspring. Had this been so, the State's
statutory policy would have been furthered by leaving
custody in him.
Carrington v. Rash, 380 U. S. 89 (1965), dealt with a
similar situation. There we recognized that Texas had
a powerful interest in restricting its electorate to bona
fide residents. It was not disputed that most servicemen
stationed in Texas had no intention of remaining
in the State; most therefore could be deprived of a vote
in state affairs. But we refused to tolerate a blanket
exclusion depriving all servicemen of the vote, when some
servicemen clearly were bona fide residents and when
"more precise tests," id., at 95, were available to distinguish
members of this latter group. "By forbidding
a soldier ever to controvert the presumption of nonresidence,"
id., at 96, the State, we said, unjustifiably
effected a substantial deprivation. It viewed people onedimensionally
(as servicemen) when a finer perception
could readily have been achieved by assessing a serviceman's
claim to residency on an individualized basis.
"We recognize that special problems may be involved
in determining whether servicemen have
actually acquired a new domicile in a State for franchise
purposes. We emphasize that Texas is free
to take reasonable and adequate steps, as have other
States, to see that all applicants for the vote actually
fulfill the requirements of bona fide residence. But
[ the challenged] provision goes beyond such rules.
stigma of illegitimacy is so pervasive it requires adoption by
strangers and permanent termination of a subsisting relationship
with the child's father." Id., at 146, 154 N. W. 2d, at 39.
656 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
'[T] he presumption here created is definitely
conclusive-incapable of being overcome by proof of
the most positive character.'" Id., at 96.
"All servicemen not residents of Texas before induction,"
we concluded, "come within the provision's sweep. Not
one of them can ever vote in Texas, no matter" what
their individual qualifications. Ibid. We found such
a situation repugnant to the Equal Protection Clause.
Despite Bell and Carrington, it may be argued that
unmarried fathers are so seldom fit that Illinois need not
undergo the administrative inconvenience of inquiry in
any case, including Stanley's. The establishment of
prompt efficacious procedures to achieve legitimate state
ends is a proper state interest worthy of cognizance in
constitutional adjudication. But the Constitution recognizes
higher values than speed and efficiency.8 Indeed,
one might fairly say of the Bill of Rights in general,
and the Due Process Clause in particular, that they
were designed to protect the fragile values of a vulnerable
citizenry from the overbearing concern for efficiency and
efficacy that may characterize praiseworthy government
officials no less, and perhaps more, than mediocre ones.
Procedure by presumption is always cheaper and easier
8 Cf. Reed v. Reed, 404 U. S. 71, 76 (1971). "Clearly the objective
of reducing the workload on probate courts by P.liminat.ing
one class of contests is not without some legitimacy. . . . [But
to] give a mandatory preference to members of either sex over
members of the other, merely to accomplish the elimination of hearings
on the merits, is to make the very kind of arbitrary legislative
choice forbidden by the Equal Protection Clause of the Fourteenth
Amendment." Carrington v. Ra:;h, 380 U. S. 89, 96 (1965),
teaches the same lesson. " . . . States may not casually deprive
a class of individuals of the vote because of some remote administrative
benefit to the State. Oyama v. CaJ,ifornia, 332 U. S. 633.
By forbidding a soldier ever to controvert the presumption of nonresidence,
the Texas Constitution imposes an invidious discrimination
in violation of the Fourteenth Amendment."
STANLEY v. ILLINOIS 657
645 Opinion of the Court
than individualized determination. But when, as here,
the procedure forecloses the determinative issues of competence
and care, when it explicitly disdains present
realities in deference to past formalities, it needlessly
risks running roughshod over the important interests of
both parent and child. It therefore cannot stand.9
Bell v. Burson held that the State could not, while
purporting to be concerned with fault in suspending a
driver's license, deprive a citizen of his license without a
hearing that would assess fault. Absent fault, the
State's declared interest was so attenuated that administrative
convenience was insufficient to excuse a hearing
where evidence of fault could be considered. That
drivers involved in accidents, as a statistical matter,
might be very likely to have been wholly or partially at
fault did not foreclose hearing and proof in specific cases
before licenses were suspended.
We think the Due Process Clause mandates a similar
result here. The State's interest in caring for Stanley's
children is de minimis if Stanley is shown to be a fit
9 We note in passing that the incremental cost of offering unwed
fathers an opportunity for individualized hearings on fitness appears
to be minunal If unwed fathers, in the main, do not care about the
disposition of their children, they will not appear to demand hearings.
If they do care, under the scheme here held invalid, Illinois
would admittedly at some later time have to afford them a properly
focused hearing in a custody or adoption proceeding.
Extending opportunity for hearing to unwed fathers who desire
and claim competence to care for their children creates no constitutional
or procedural obstacle to foreclosing those unwed fathers who
are not so inclined. The Illinois law governing procedure in juvenile
cases, Ill. Rev. Stat., c. 37, § 704-1 et seq., provides for personal
service, notice by certified mail, or for notice by publication when
personal or certified mail service cannot be had or when notice is
directed to unknown respondents under the style of "AU whom it
may Concern." Unwed fathers who do not promptly respond cannot
complain if their children are declared wards of the State.
Those who do respond retain the burden of proving their fatherhood.
658 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
father. It insists on presuming rather than proving
Stanley's unfitness solely because it is more convenient
to presume than to prove. Under the Due Process
Clause that advantage is insufficient to justify refusing
a father a hearing when the issue at stake is the dismemberment
of his family.
III
The State of Illinois assumes custody of the children of
married parents, divorced parents, and unmarried mothers
only after a hearing and proof of neglect. The children
of unmarried fathers, however, are declared dependent
children without a hearing on parental fitness and without
proof of neglect. Stanley's claim in the state courts
and here is that failure to afford him a hearing on his
parental qualifications while extending it to other parents
denied him equal protection of the laws. We have concluded
that all 111inois parents are constitutionally entitled
to a hearing on their fitness before their children
are removed from their custody. It follows that denying
such a hearing to Stanley and those like him while granting
it to other Illinois parents is inescapably contrary
to the Equal Protection Clause.10
10 Predicating a finding of constitutional invalidity under the Equal
Protection Clause of the Fourteenth Amendment on the observation
that a State has accorded bedrock procedural rights to some, but
not to all similarly situated, is not contradictory to our holding in
Picard v. Connor, 404 U.S. 270 (1971). In that ca.sea due process,
rather than an equal protection, claim was raised in the state courts.
The federal courts were, in our opinion, barred from reversing the
state conviction on grounds of contravention of the Equal Protection
Clause when that clause had not been referred to for consideration
by the state authorities. Here, in contrast, we dispose of the case
on the constitutional premise raised below, reaching the result by a
method of analysis readily available to the state court.
For the same reason the strictures of Cardinal,e v. Louisiana, 394
U.S. 437 (1969), and Hill v. California, 401 U.S. 797 (1971), have
been fully observed.
STANLEY v. ILLINOIS 659
645 BURGER, C. J., dissenting
The judgment of the Supreme Court of Illinois is reversed
and the case is remanded to that court for proceedings
not inconsistent with this opinion.
It is so ordered.
MR. JUSTICE PowELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of this case.
MR. JusTICE DouGLAS joins in Parts I and II of this
opm10n.
MR. CHIEF JusTICE BURGER, with whom MR. JusTICE
BLACKMUN concurs, dissenting.
The only constitutional issue raised and decided in the
courts of Illinois in this case was whether the Illinois
statute that omits unwed fathers from the definition of
"parents" violates the Equal Protection Clause. We
granted certiorari to consider whether the Illinois Supreme
Court properly resolved that equal protection issue
when it unanimously upheld the statute against petitioner
Stanley's attack.
No due process issue was raised in the state courts;
and no due process issue was decided by any state court.
As MR. JusTICE DouGLAS said for this Court in State
Farm Mutual Automobile Ins. Co. v. Duel, 324 U. S.
154, 160 (1945), "Since the [state] Supreme Court did
not pass on the question, we may not do so." We had
occasion more recently to deal with this aspect of the
jurisdictional limits placed upon this Court by 28 U.S. C.
§ 1257 when we decided Hill v. California, 401 U. S. 797
( 1971). Having rejected the claim that Chimel v. California,
395 U. S. 752 (1969), should be retroactively applied
to invalidate petitioner Hill's conviction on the
ground that a search incident to arrest was overly extensive
in scope, the Court noted Hill's additional contention
that his personal diary, which was one of the items
660 OCTOBER TERM, 1971
BURGER, C. J., dissenting 405 u. s.
of evidence seized in that search, should have been excluded
on Fifth Amendment grounds as well. MR. Jus-
TICE WHITE, in his opinion for the Court, concluded that
we lacked jurisdiction to consider the Fifth Amendment
contention:
"Counsel for [ the petitioner] conceded at oral argument
that the Fifth Amendment issue was not raised
at trial. Nor was the issue raised, briefed, or argued
in the California appellate courts. [Footnote omitted.]
The petition for certiorari likewise ignored it.
In this posture of the case, the question, although
briefed and argued here, is not properly before us."
401 U. S., at 805.
In the case now before us, it simply does not suffice
to say, as the Court in a footnote does say, that "we dispose
of the case on the constitutional premise raised below,
reaching the result by a method of analysis readily
available to the state court." Ante, at 658 n. 10. The
Court's method of analysis seems to ignore the strictures
of JusTICES DouGLAS and WHITE, but the analysis is
clear: the Court holds sua sponte that the Due Process
Clause requires that Stanley, the unwed biological father,
be accorded a hearing as to his fitness as a parent before
his children are declared wards of the state court; the
Court then reasons that since Illinois recognizes such
rights to due process in married fathers, it is required by
the Equal Protection Clause to give such protection to
unmarried fathers. This "method of analysis" is, of
course, no more or less than the use of the Equal Protection
Clause as a shorthand condensation of the entire
Constitution: a State may not deny any constitutional
right to some of its citizens without violating the Equal
Protection Clause through its failure to deny such rights
to all of its citizens. The limits on this Court's jurisdiction
are not properly expandable by the use of such
semantic devices as that.
STANLEY v. ILLINOIS 661
645 BURGER, C. J., dissenting
Not only does the Court today use dubious reasoning
in dealing with limitations upon its jurisdiction, it proceeds
as well to strike down the Illinois statute here involved
by "answering" arguments that are nowhere to
be found in the record or in the State's brief-or indeed
in the oral argument. I have been unable, for example,
to discover where or when the State has advanced any
argument that "it is unnecessary to hold individualized
hearings to determine whether particular fathers are in
fact unfit parents before they are separated from their
children." Ante, at 647. Nor can I discover where the
State has "argu[ed] that Stanley and all other unmarried
fathers can reasonably be presumed to be unqualified to
raise their children." Ante, at 653. Or where anyone
has even remotely suggested the "argu[ment] that unmarried
fathers are so seldom fit that Illinois need not
undergo the administrative inconvenience of inquiry in
any case, including Stanley's." Ante, at 656. On the
other hand, the arguments actually advanced by the State
are largely ignored by the Court.1
1 In reaching out to find a due process issue in this case, the Court
seems to have misapprehended the entire thrust of the State's argument.
When explaining at oral argument why Illinois does not
recognize the unwed father, counsel for the State presented two basic
justifications for the statutory definition of "parents" here at issue.
See Tr. of Oral Arg. 25-26. First, counsel noted that in the case
of a married couple to whom a legitimate child is born, the two
biological parents have already ''signified their willingness to work
together" in caring for the child by entering into the marriage contract;
it is manifestly reasonable, therefore, that both of them be
recognized as legal parents with rights and responsibilities in connection
with the child. There has been no legally cognizable signification
of such willingness on the part of unwed parents, however,
and "the male and female . . . may or may not be willing to work
together towards the common end of child rearing." To provide legal
recognition to both of them as "parents" would often be "to create
two conflicting parties competing for legal control of the child."
The second basic justification urged upon us by counsel for the
State was that, in order to provide for the child's welfare, "it is
662 OCTOBER TERM, 1971
BURGER, C. J ., dissenting 405 U.S.
All of those persons in Illinois who may have followed
the progress of this case will, I expect, experience no little
surprise at the Court's opinion handed down today.
Stanley will undoubtedly be surprised to find that he has
prevailed on an issue never advanced by him. The judges
who dealt with this case in the state courts will be surprised
to find their decisions overturned on a ground they
never considered. And the legislators and other officials
of the State of Illinois, as well as those attorneys of the
State who are familiar with the statutory provisions here
at issue, will be surprised to learn for the first time that
the Illinois Juvenile Court Act establishes a presumption
that unwed fathers are unfit. I must confess my own
inability to find any such presumption in the Illinois Act.
Furthermore, from the record of the proceedings in the
Juvenile Court of Cook County in this case, I can only
conclude that the judge of that court was unaware of any
such presumption, for he clearly indicated that Stanley's
asserted fatherhood of the children would stand him in
good stead, rather than prejudice him, in any adoption or
guardianship proceeding. In short, far from any intinecessary
to impose upon at least one of the parties legal responsibility
for the welfare of [the child], and since necessarily the female is
present at the birth of the child and identifiable as the mother," the
State has selected the unwed mother, rather than the unwed father,
as the biological parent with that legal responsibility.
It was suggested to counsel during an ensuing colloquy with the
bench that identification seemed to present no insuperable problem
in Stanley's case and that, although Stanley had expressed an interest
in participating in the rearing of the children, "Illinois won't let
him." Counsel replied that, on the contrary, "Illinois encourages
him to do so if he will accept the legal responsibility for those children
by a formal proceeding comparable to the marriage ceremony, in
which he is evidencing through a judicial proceeding his desire to
accept legal responsibility for the children.'' Stanley, however, "did
not ask for custody. He did not ask for legal responsibility. He
only objected to someone [else] having legal control over the children."
Tr. of Oral Arg. 38, 39-40.
STANLEY v. ILLINOIS 663
645 BURGER, C. J., dissenting
mations of hostility toward unwed fathers, that court
gave Stanley "merit points" for his acknowledgment of
paternity and his past assumption of at least marginal
responsibility for the children.2
In regard to the only issue that I consider properly
before the Court, I agree with the State's argument that
the Equal Protection Clause is not violated when Illinois
gives full recognition only to those father-child relationships
that arise in the context of family units bound together
by legal obligations arising from marriage or from
adoption proceedings. Quite apart from the religious or
quasi-religious connotations that marriage has-and has
historically enjoyed-for a large proportion of this Nation's
citizens, it is in law an essentially contractual relationship,
the parties to which have legally enforceable
rights and duties, with respect both to each other and to
any children born to them. Stanley and the mother of
these children never entered such a relationship. The
record is silent as to whether they ever privately exchanged
such promises as would have bound them in
marriage under the common law. See Cartwright v.
M cGown, 121 Ill. 388, 398, 12 N. E. 737, 739 (1887). In
2 The position that Stanley took at the dependency proceeding
was not without ambiguity. Shortly after the mother's death, he
placed the children in the care of Mr. and Mrs. Ness, who took the
children into their home. The record is silent as to whether the
Ness household was an approved foster home. Through Stanley's
act, then, the Nesses were already the actw:,J, custodians of the
children. At the dependency proceeding, he resisted only the court's
designation of the Nesses as the legal custodians; he did not challenge
their suitability for that role, nor did he seek for himRelf either that
role or any other role that would have imposed legal responsibility
upon him. Had he prevailed, of course, the statw; quo would have
obtained: the N esses would have continued to play the role of actual
custodians until either they or Stanley acted to alter the informal
arrangement, and there would still have been no living adult with
any legally enforceable obligation for the care and support of the
infant children.
664 OCTOBER TERM, 1971
BuRGER, C. J., dissenting 405 U.S.
any event, Illinois has not recognized common-law marriages
since 1905. Ill. Rev. Stat., c. 89, § 4. Stanley did
not seek the burdens when he could have freely assumed
them.
Where there is a valid contract of marriage, the law
of Illinois presumes that the husband is the father of
any child born to the wife during the marriage; as the
father, he has legally enforceable rights and duties with
respect to that child. When a child is born to an unmarried
woman, Illinois recognizes the readily identifiable
mother, but makes no presumption as to the identity of
the biological father. It does, however, provide two
ways, one voluntary and one involuntary, in which that
father may be identified. First, he may marry the mother
and acknowledge the child as his own; this has the legal
effect of legitimating the child and gaining for the father
full recognition as a parent. Ill. Rev. Stat., c. 3, § 12-8.
Second, a man may be found to be the biological father
of the child pursuant to a paternity suit initiated by the
mother; in this case, the child remains illegitimate, but
the adjudicated father is made liable for the support of
the child until the latter attains age 18 or is legally
adopted by another. Ill. Rev. Stat., c. 106¾, § 52.
Stanley argued before the Supreme Court of Illinois
that the definition of "parents," set out in Ill. Rev. Stat.,
c. 37, § 701-14, as including "the father and mother of
a legitimate child, or the survivor of them, or the natural
mother of an illegitimate child, [or] ... any adoptive
parent," 3 violates the Equal Protection Clause in that it
3 The Court seems at times to ignore this statutory definition of
"parents,'' even though it is precisely that definition itself whose
constitutionality has been brought into issue by Stanley. In preparation
for finding a purported similarity between this case and Bell
v. Burson, 402 U.S. 535 (1971), the Court quotes the legislatively
declared aims of the Juvenile Court Act to ''strengthen the minor's
family ties whenever possible, removing him from the custody of
STANLEY v. ILLINOIS 665
645 BURGER, C. J., dissenting
treats unwed mothers and unwed fathers differently.
Stanley then enlarged upon his equal protection argument
when he brought the case here; he argued before
this Court that Illinois is not permitted by the Equal
Protection Clause to distinguish between unwed fathers
and any of the other biological parents included in the
statutory definition of legal "parents."
The Illinois Supreme Court correctly held that the
State may constitutionally distinguish between unwed
fathers and unwed mothers. Here, Illinois' different
treatment of the two is part of that State's statutory
scheme for protecting the welfare of illegitimate children.
In almost all cases, the unwed mother is readily identifiable,
generally from hospital records, and alternatively
by physicians or others attending the child's birth. Unwed
fathers, as a class, are not traditionally quite so easy
to identify and locate. Many of them either deny all
responsibility or exhibit no interest in the child or its
welfare; and, of course, many unwed fathers are simply
not aware of their parenthood.
Furthermore, I believe that a State is fully justified
in concluding, on the basis of common human experience,
that the biological role of the mother in carrying and
nursing an infant creates stronger bonds between her and
the child than the bonds resulting from the male's often
casual encounter. This view is reinforced by the observable
fact that most unwed mothers exhibit a concern
for their offspring either permanently or at least until
his parents only when his welfare or safety or the protection of
the public cannot be adequately safeguarded without removal."
(Emphasis added.) The Court then goes on to find a "self-contradiction"
between that stated aim and the Act's nonrecognition of
unwed fathers. Ante, at 653. There is, of course, no such contradiction.
The word "parent" in the statement of legislative purpose
obviously has the meaning given to it by the definitional provision
of the Act.
666 OCTOBER TERM, 1971
BURGER, C. J., dissenting 405 u. s.
they are safely placed for adoption, while unwed fathers
rarely burden either the mother or the child with their
attentions or loyalties. Centuries of human experience
buttress this view of the realities of human conditions
and suggest that unwed mothers of illegitimate children
are generally more dependable protectors of their children
than are unwed fathers. While these, like most generalizations,
are not without exceptions, they nevertheless
provide a sufficient basis to sustain a statutory classification
whose objective is not to penalize unwed parents
but to further the welfare of illegitimate children in fulfillment
of the State's obligations as parens patriae.4
Stanley depicts himself as a somewhat unusual unwed
father, namely, as one who has always acknowledged and
never doubted his fatherhood of these children. He alleges
that he loved, cared for, and supported these children
from the time of their birth until the death of
their mother. He contends that he consequently must
be treated the same as a married father of legitimate
children. Even assuming the truth of Stanley's allegations,
I am unable to construe the Equal Protection
Clause as requiring Illinois to tailor its statutory definition
of "parents" so meticulously as to include such
unusual unwed fathers, while at the same time excluding
those unwed, and generally unidentified, biological fathers
who in no way share Stanley's professed desires.
4 When the marriage between the parents of a legitimate child is
dissolved by divorce or separation, the State, of course, normally
awards custody of the child to one parent or the other. This is considered
necessa.ry for the child's welfare, since the parents are no
longer legally bound together. The unmarried parents of an illegitimate
child are likewise not legally bound together. Thus, even if
Illinois did recognize the parenthood of both the mother and father
of an illegitimate child, it would, for consistency with its practice
in divorce proceedings, be called upon to award custody to one or
the other of them, at least once it had by some means ascertained
the identity of the father.
STANLEY v. ILLINOIS 667
645 BURGER, C. J., dissenting
Indeed, the nature of Stanley's own desires is less than
absolutely clear from the record in this case. Shortly
after the death of the mother, Stanley turned these two
children over to the care of a Mr. and Mrs. Ness; he
took no action to gain recognition of himself as a father,
through adoption, or as a legal custodian, through a
guardianship proceeding. Eventually it came to the attention
of the State that there was no living adult who
had any legally enforceable obligation for the care and
support of the children; it was only then that the dependency
proceeding here under review took place and
that Stanley made himself known to the juvenile court
in connection with these two children.5 Even then, however,
Stanley did not ask to be charged with the legal
responsibility for the children. He asked only that such
legal responsibility be given to no one else. He seemed,
in particular, to be concerned with the loss of the welfare
payments he would suffer as a result of the designation
of others as guardians of the children.
Not only, then, do I see no ground for holding that
Illinois' statutory definition of "parents" on its face violates
the Equal Protection Clause; I see no ground for
holding that any constitutional right of Stanley has been
denied in the application of that statutory definition in
the case at bar.
As Mr. Justice Frankfurter once observed, "Invalidating
legislation is serious business .... " Morey v. Doud,
354 U. S. 457, 474 (1957) (dissenting opinion). The
5 As the majority notes, ante, at 646, Joan Stanley gave birth to
three children during the 18 years Peter Stanley was living "intermittently"
with her. At oral argument, we were told by Stanley's
counsel that the oldest of these three children had previously been
declared a ward of the court pursuant to a neglect proceeding that
was "proven against" Stanley at a time, apparently, when the juvenile
court officials were under the erroneous impression that Peter and
Joan Stanley had been married. Tr. of Oral Arg. 19.
668 OCTOBER TERM, 1971
BURGER, C. J., dissenting 405 U.S.
Court today pursues that serious business by expanding
its legitimate jurisdiction beyond what I read in 28
U. S. C. § 1257 as the permissible limits contemplated
by Congress. In doing so, it invalidates a provision of
critical importance to Illinois~ carefully drawn statutory
system governing family relationships and the welfare of
the minor children of the State. And in so invalidating
that provision, it ascribes to that statutory system a presumption
that is simply not there and embarks on a
novel concept of the natural law for unwed fathers that
could well have strange boundaries as yet undiscernible.
CARTER v. STANTON 669
Per Curiam
CARTER ET AL. v. STANTON, DIRECTOR, MARION
COUNTY DEPARTMENT OF PUBLIC
WELFARE, ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF INDIANA
No. 70-5082. Argued November 8, 1971-Decided April 3, 1972
Appellants' challenge to the Indiana welfare regulation that provides
that a person who seeks assistance due to separation or the desertion
of a spouse is not entitled to aid until the spouse has been
continuously absent for at least six months, unless there are exceptional
circumstances of need, was dismissed for failure to exhaust
administrative remedies, and alternatively on the grounds of lack
of jurisdiction and failure of the pleadings to present a substantial
federal question. Held: The District Court plainly had jurisdiction,
and exhaustion is not required in the circumstances of this
case. Damico v. Cai,ijornia, 389 U. S. 416. If that court's
characterization of the federal question as insubstantial was based
on the face of the complaint, it was error; if the court treated the
motion to dismiss as one for summary judgment, its order is unilluminating
as to the relevant facts or the applicable law, and
was improperly entered.
Vacated and remanded.
Jon D. Noland argued the cause for appellants. With
him on the briefs were John T. Manning and David F.
Shadel.
Robert W. Geddes argued the cause for appellee
Stanton. With him on the brief were Harold W. Jones
and Carl J. Meyer. Mark Peden, Deputy Attorney
General of Indiana, argued the cause for appellee Sterrett.
With him on the brief were Theodore L. Sendak,
Attorney General, William F. Thompson, Assistant Attorney
General, and William F. Harvey.
670 OCTOBER TERM, 1971
Per Curiam 405 U.S.
Solicitor General Gri.swold and Richard B. Stone filed
a brief for the United States as amicus curiae.
PER CURIAM.
Appellants are women who contend that an Indiana
welfare regulation governing eligibility for state and
federal aid to dependent children contravenes the Fourteenth
Amendment and the Social Security Act, 49 Stat.
627, as amended, 42 U. S. C. § 602 (a) (10). The regulation
provides that a person who seeks assistance due to
separation or the desertion of a spouse is not entitled to
aid until the spouse has been continuously absent for at
least six months, unless there are exceptional circumstances
of need. Burns Ind. Admin. Rules & Regs. ( 52-
1001 )-2 (1967). Appellants brought this action in the
United States District Court for the Southern District of
Indiana, basing jurisdiction on 42 U. S. C. § 1983 and 28
U. S. C. § 1343, and seeking both declaratory and injunctive
relief. A three-judge court was convened pursuant
to 28 U. S. C. § 2281. After a "preliminary hearing on
defendants' " motion to dismiss "at which the court"
received evidence upon which to resolve the matter, the
court dismissed the complaint on the ground that none
of the claimants had exercised her right under Indiana
law to appeal from a county decision denying welfare
assistance, Burns Ind. Admin. Rules & Regs. (52-1211)-1
(Supp. 1970), and therefore appellants had failed to exhaust
administrative remedies. In the alternative, the
court held that the pleadings did not present a substantial
federal question and that the court lacked jurisdiction
under 42 U. S. C. § 1983 and 28 U. S. C. §§ 2201, 2202.
(!arter v. Stanton, No. IP 70-C--124 (SD Ind., Dec. 11,
1970). This direct appeal followed and we noted probable
jurisdiction. 402 U. S. 994 ( 1971).
Contrary to the State's view, our jurisdiction of this
CARTER v. STANTON 671
669 Per Curiam
appeal under 28 U. S. C. § 1253 is satisfactorily established.
Sullivan v. Alabama State Bar, 394 U. S. 812,
aff'g 295 F. Supp. 1216 (MD Ala. 1969); Whitney
Stores, Inc. v. Summerford, 393 U. S. 9, aff'g 280 F.
Supp. 406 (SC 1968). Also, the District Court plainly
had jurisdiction of this case pursuant to 42 U. S. C.
§ 1983 and 28 U. S. C. § 1343. Damico v. California,
389 U.S. 416 (1967). Damico, an indistinguishable case,
likewise establishes that exhaustion is not required in
circumstances such as those presented here. Cf. Mc-
Neese v. Board of Education, 373 U. S. 668 (1963);
Monroe v. Pape, 365 U. S. 167 (1961).
Finally, if the court's characterization of the federal
question presented as insubstantial was based on the
face of the complaint, as it seems to have been, it was
error. Cf. Dandridge v. Williams, 397 U.S. 471 (1970);
Shapiro v. Thompson, 394 U. S. 618 (1969); Damico v.
California, supra. But it appears that at the hearing on
the motion to dismiss, which was based in part on the
asserted failure "to state a claim upon which relief can
be granted" (App. 19), matters outside the pleadings were
presented and not excluded by the court. The court
was therefore required by Rule 12 (b) of the Federal
Rules of Civil Procedure to treat the motion to dismiss
as one for summary judgment and to dispose of it as
provided in Rule 56. Under Rule 56, summary judgment
cannot be granted unless there is no genuine issue
as to any material fact and the moving party is entitled
to judgment as a matter of law. If this is the course
the District Court followed, its order is opaque and
unilluminating as to either the relevant facts or the
law with respect to the merits of appellants' claim. In
this posture of the case, we are unconvinced that summary
judgment was properly entered. The judgment of
6i2 OCTOBER TERM, 1971
Opinion of DouGLAs, J. 405 U.S.
the District Court is therefore vacated and the case is
remanded to that court for proceedings consistent with
this opinion. So or d ere d.
MR. JUSTICE PowELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of this case.
MR. JUSTICE DOUGLAS.
I agree that both this Court and the District Court
have jurisdiction to entertain this case and that the
appellants were not required to exhaust administrative
remedies before launching their challenge. But, although
the District Court should have made more complete
findings of fact and conclusions of law, I would
not remand simply on this score but would hold that
the appellants are entitled to judgment.
The problem is simple and should be disposed of here.
The federal Act defines a "dependent child" as a
"needy child ... who has been deprived of parental
support or care by reason of ... continued absence from
the home."' Indiana by its Board of Public Welfare has
adopted the federal definition of "needy child." 2
The term "continued absence from the home" is not defined
in the federal Act, though HEW recommends "that
no period of time be specified as a basis for establishing
continued absence as an eligibility factor." 3 Indiana,
however, has established by rule a definition of "continued
absence'' in case of "desertion or separation." In
those two instances it makes "continued absence" mean
that "the absence shall have been continuous" for at least
1 49 Stat. 629, as amended, 42 U.S. C. § 606 (a).
Zlnd. State Bd. of Pub. Welfare Reg. 2-400 (a).
3 Dept. of Health, Education, & Welfare Handbook of Public Assistance
Administration, pt. IV, § 3422.5 (1968).
CARTER v. STANTON 673
669 Opinion of DouaLAS, J.
six months; except when the department of welfare
finds there are "exceptional circumstances of need."
A dependent child gets aid immediately and continuously
in case the parent is incarcerated or in case the
parent is inducted into the armed services. The sixmonth
rule creates a separate class of needy children
who by the federal standard may be as "needy" as those
in the other two categories.
The federal Act directs that "aid to families with dependent
children shall be furnished with reasonable
promptness to all eligible individuals." 5 The federal
regulation requires decisions on applications to be made
"promptly" and "not in excess of" 30 days and that the
assistance check or notification of denial be mailed within
that period.6 As noted, the federal Act contains no waiting
period to establish "continued absence." And the
HEW Handbook, already referred to,1 states as respects
"continued absence" that "[a] child comes within this
interpretation if for any reason his parent is absent." 8
4 Bums, Ind. Admin. Rules & Regs. (52-1001)-2 (1967): "When
the continued absence is due to desertion or separation, the absence
shall have been continuous for a period of at least six [6] months
prior to the date of application for assistance to dependent children;
except that under exceptional circumstances of need and where it is
determined that the absence of a parent is actual and bona fide an
application may be filed and a child may be considered immediately
eligible upon a special finding of the county department of public
welfare setting forth the facts and reasons for such action."
5 42 U.S. C. §602 (a)(lO).
6 45 CFR § 206.10 (3), 36 Fed. Reg. 3864.
7 N. 3, supra.
8 Part IV, § 3422.2, of the Handbook provides:
"Continued absence of the parent from the home constitutes the
reason for deprivation of parental support or care under the following
circumstances:
"1. When the parent is out of the home;
"2. When the nature of the absence is such as either to interrupt
674 OCTOBER TERM, 1971
Opinion of DouGLAS, J. 405 U.S.
Here, as in California Human Resources Dept. v. Java,
402 U. S. 121, 135, the State's program "tends to frustrate"
the Social Security Act. King v. Smith, 392 U. S.
309, "establishes that, at least in the absence of congressional
authorization for the exclusion clearly evidenced
from the Social Security Act or its legislative history, a
state eligibility standard that excludes persons eligible
for assistance under federal AFDC standards violates the
Social Security Act and is therefore invalid under the
Supremacy Clause." Townsend v. Swank, 404. U. S. 282,
286. While a State has a legitimate interest in prevei1ting
fraud, there are, as we said in Shapiro v. Thompson, 394
U. S. 618, 637, "less drastic means" available "to minimize
that hazard." Rather than remanding for a lower
court determination of the law of the case, the merits
ought to be decided now inasmuch as (a) the facts are
essentially undisputed, (b) the appellants' claim based
on the federal Act is plainly correct, and ( c) further
litigation would work a hardship upon welfare recipients
affected by the Indiana rule. See generally Note, Individualized
Criminal Justice In The Supreme Court:
A Study Of Dispositional Decision Making, 81 Harv. L.
Rev. 1260 (1968); Bell, Appellate Court Opinions And
The Remand Process, 2 Ga. L. Rev. 526, 536 (1968).
or to terminate the parent's functioning as a provider of maintenance,
physical care, or guidance for the child; and
"3. When the known or indefinite duration of the absence precludes
counting on the parent's performance of his function in
planning for the present support or care of the child.
"A child comes within this interpretation if for any reason his
parent is absent, and this absence interferes with the child's receiving
maintenance, physical care, or guidance from his parent, and precludes
the parent's being counted on for support or care of the child.
For example: The child's father has left home, without forewarning
his family, and the mother really does not know why he left home,
nor when or whether he will return."
CARTER v. STANTON 675
669 Opinion of DouoLAs, J.
The Indiana regulation so plainly collides with the
federal Act that I would end this frivolous defense to
this welfare litigation by deciding the merits and reversing
by reason of the Supremacy Clause.
676 OCTOBER TERM, 1971
Sylmbus 405 U.S.
COLE, STATE HOSPITAL SUPERINTENDENT,
ET AL. V. RICHARDSON
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS
No. 70-14. Argued November 16, 1971-Decided April 18, 1972
Appellee's employment at the Boston State Hospital was terminated
when she refused to take the following oath required of all public
employees in Massachusetts: "I do solemnly swear (or affirm)
that I will uphold and defend the Constitution of the United
States of America and the Constitution of the Commonwealth of
Massachusetts and that I will oppose the overthrow of the government
of the United States of America or of this Commonwealth
by force, violence, or by any illegal or unconstitutional
method." Appellee challenged the constitutionality of the oath
statute. A three-judge District Court concluded that the attack
on the "uphold and defend" clause was foreclosed by Knight v.
Board of Regents, 390 U. S. 36, but found the "oppose the overthrow"
clause "fatally vague and unspecific" and thus violative
of the First Amendment. In response to a remand from this
Court, the District Court concluded that the case was not moot,
and reinstated its earlier judgment. Held: The Massachusetts
oath is constitutionally permissible. Pp. 679-687.
(a) The oath provisions of the United States Constitution, Art.
II, § 1, cl. 8, and Art. VI, cl. 3, are not inconsistent with the First
Amendment. Pp. 681-682.
(b) The District Court properly held that the "uphold and
defend" clause, a paraphrase of the constitutional oath, is permissible.
P. 683.
(c) The "oppose the overthrow" clause was not designed to
require specific action to be taken in some hypothetical or actual
situation but was to assure that those in positions of public trust
were willing to commit themselves to live by the constitutional
processes of our government. Pp. 683-685.
(d) The oath is not void for vagueness. Perjury, the sole
punishment, requires a knowing and willful falsehood, which removes
the danger of punishment without fair notice; and there
is no problem of punishment inflicted by mere prosecution, as
there has been no prosecution under the statute since its enactment
nor has any been planned. Pp. 685--686.
COLE v. RICHARDSON 677
676 Opinion of the Court
(e) There is no constitutionally protected right to overthrow a
government by force, violence, or illegal or unconstitutional means,
and therefore there is no requirement that one who refuses to
take Massachusetts' oath be granted a hearing for the determination
of some other fact before being discharged. Pp. 686-687.
Reversed and remanded.
BURGER, C. J., delivered the opm1on of the Court, in which
STEWART, WHITE, and BLACKMUN, JJ., joined. STEWART and
WHITE, JJ., filed a concurring opinion, post, p. 687. DouGLAS, J.,
filed a dissenting opinion, post, p. 687. MARSHALL, J., filed a dissenting
opinion, in which BRENNAN, J., joined, post, p. 691. PowELL
and REHNQUIST, JJ., took no part in the consideration or decision
of the case.
Walter H. Mayo III, Assistant Attorney General of
Massachusetts, argued the cause for appellants. With
him on the brief was Robert H. Quinn, Attorney General.
Stephen H. Oleskey argued the cause for appellee pro
hac vice. With him on the brief was Harold Hestnes.
MR. CHIEF JUSTICE BURGER delivered the opinion of
the Court.
In this appeal we review the decision of the threejudge
District Court holding a Massachusetts loyalty
oath unconstitutional.
The appellee, Richardson, was hired as a research
sociologist by the Boston State Hospital. Appellant Cole
is superintendent of the hospital. Soon after she entered
on duty Mrs. Richardson was asked to subscribe
to the oath required of all public employees in Massachusetts.
The oath is as follows:
"I do solemnly swear ( or affirm) that I will uphold
and defend the Constitution of the United States
of America and the Constitution of the Commonwealth
of Massachusetts and that I will oppose the
overthrow of the government of the United States
678 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
of America or of this Commonwealth by force, violence
or by any illegal or unconstitutional method." 1
Mrs. Richardson informed the hospital's personnel
department that she could not take the oath as ordered
because of her belief that it was in violation of the
United States Constitution. Approximately 10 days
later appellant Cole personally informed Mrs. Richardson
that under state law she could not continue as an
employee of the Boston State Hospital unless she subscribed
to the oath. Again she refused. On November
25, 1968, Mrs. Richardson's employment was terminated
and she was paid through that date.
1 The full text of the two relevant statutes is as follows:
Mass. Gen. Laws, c. 264, § 14. Oath or affirmation; form; filing;
exemption.s
"Every person entering the employ of the commonwealth or any
political subdivision thereof, before entering upon the discharge of his
duties, shall· take and subscribe to, under the pains and penalty of
perjury, the following oath or affirmation:-
" 'I do solemnly swear (or affirm) that I will uphold and defend
the Constitution of the United States of America and the Constitution
of the Commonwealth of Massachusetts and that I will oppose
the overthrow of the government of the United St.ates of America
or of this Commonwealth by force, violence or by any illegal or
unconstitutional method.'
"Such oath or affirmation shall be filed by the subscriber, if he
shall be employed by the state, with the secretary of the commonwealth,
if an employee of a county, with the county commissioners,
and if an employe of a city or town, with the city clerk or the town
clerk, as the case may be.
"The oath or affirmation prescribed by this section shall not be
required of any person who is employed by the commonwealth or
a political subdivision thereof as a physician or nurse in a hospital
or other health care institution and is a citizen of a foreign country."
C. 264, § 15. Violation of section 14,- penalty
"Violation of section fourteen shall be punished by a fine of not
more than ten thousand dollars or by imprisonment for not more
than one year, or both."
COLE v. RICHARDSON 679
676 Opinion of the Court
In March 1969 Mrs. Richardson filed a complaint in
the United States District Court for the District of Massachusetts.
The complaint alleged the unconstitutionality
of the statute, sought damages and an injunction
against its continued enforcement, and prayed for the
convocation of a three-judge court pursuant to 28 U.S. C.
§§ 2281 and 2284.
A three-judge District Court held the oath statute
unconstitutional and enjoined the appellants from applying
the statute to prohibit Mrs. Richardson from working
for Boston State Hospital.2 The District Court
found the attack on the "uphold and defend" clause,
the first part of the oath, foreclosed by Knight v. Board
of Regents, 269 F. Supp. 339 (SDNY 1967), aff'd,
390 U. S. 36 (1968). But it found that the "oppose
the overthrow" clause was "fatally vague and unspecific,"
and therefore a violation of First Amendment
rights. The court granted the requested injunction but
denied the claim for damages.
Appeals were then brought to this Court under 28
U. S. C. § 1253. We remanded for consideration of
whether the case was moot in light of a suggestion that
Mrs. Richardson's job had been filled in the interim.
397 U. S. 238 (1970). On remand, the District Court
concluded that Mrs. Richardson's position had not been
filled and that the hospital stood ready to hire her for
the continuing research project except for the problem of
the oath. In an unreported opinion dated July 1, 1970,
it concluded that the case was not moot and reinstated
its earlier judgment. Appellants again appealed, and
we noted probable jurisdiction. 403 U.S. 917 (1971).
We conclude that the Massachusetts oath is constitutionally
permissible, and in light of the prolonged liti-
2 Richardson v. Cole, 300 F. Supp. 1321 (Mass. 1969).
680 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
gation of this case we set forth our reasoning at greater
length than previously.
A review of the oath cases in this Court will put the
instant oath into context. We have made clear that
neither federal nor state government may condition employment
on taking oaths that impinge on rights guaranteed
by the First and Fourteenth Amendments respectively,
as for example those relating to political beliefs.
Law Students Research Council v. Wadmond, 401 U. S.
154 (1971); Baird v. State Bar of Arizona, 401 U. S. 1
(1971); Connell v. Higginbotham, 403 U. S. 207, 209
(1971) (MARSHALL, J., concurring in result). Nor may
employment be conditioned on an oath that one has not
engaged, or will not engage, in protected speech activities
such as the following: criticizing institutions of government;
discussing political doctrine that approves the
overthrow of certain forms of government; and supporting
candidates for political office. Keyishian v. Board of
Regents, 385 U. S. 589 (1967); Baggett v. Bullitt, 377
U. S. 360 ( 1964); Cramp v. Board of Public Instruction,
368 U. S. 278 (1961). Employment may not be conditioned
on an oath denying past, or abjuring future,
associational activities within constitutional protection;
such protected activities include membership in organizations
having illegal purposes unless one knows of the
purpose and shares a specific intent to promote the
illegal purpose. Whitehill v. Elkins, 389 U.S. 54 (1967);
Keyishian v. Board of Regents, supra; Elfbrandt v. Russell,
384 U. S. 11 (1966); Wieman v. Updegraff, 344
U. S. 183 (1952). Thus, last Term in Wadmond the
Court sustained inquiry into a bar applicant's associational
activities only because it was narrowly confined
to organizations that the individual had known to have
the purpose of violent overthrow of the government and
whose purpose the individual shared. And, finally, an
oath may not be so vague that " 'men of common inCOLE
v. RICHARDSON 681
676 Opinion of the Court
telligence must necessarily guess at its meaning and differ
as to its application, [because such an oath] violates
the first essential of due process of law.' " Cramp v.
Board of Public Instruction, 368 U. S., at 287. Concern
for vagueness in the oath cases has been especially great
because uncertainty as to an oath's meaning may deter
individuals from engaging in constitutionally protected
activity conceivably within the scope of the oath.
An underlying, seldom articulated concern running
throughout these cases is that the oaths under consideration
often required individuals to reach back into
their past to recall minor, sometimes innocent, activities.
They put the government into "the censorial business
of investigating, scrutinizing, interpreting, and then
penalizing or approving the political viewpoints" and
past activities of individuals. Law Students Research
Council v. Wadmond, 401 U. S., at 192 (MARSHALL, J.,
dissenting).
Several cases recently decided by the Court stand out
among our oath cases because they have upheld the
constitutionality of oaths, addressed to the future, promising
constitutional support in broad terms. These cases
have begun with a recognition that the Constitution
itself prescribes comparable oaths in two articles. Article
II, § 1, cl. 8, provides that the President sha11 swear
that he will "faithfully execute the Office ... and will
to the best of [his] Ability, preserve, protect and defend
the Constitution of the United States." Article VI, cl. 3,
provides that all state and federal officers shall be bound
by an oath "to support this Constitution." The oath
taken by attorneys as a condition of admission to the
Bar of this Court identically provides in part "that I
will support the Constitution of the United States"; it
also requires the attorney to state that he will "conduct
[himself] uprightly, and according to law."
682 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Bond v. Floyd, 385 U. S. 116 (1966), involved Georgia's
statutory requirement that state legislators swear
to "support the Constitution of this State and of the
United States," a paraphrase of the constitutionally required
oath. The Court there implicitly concluded that
the First Amendment did not undercut the validity of
the constitutional oath provisions. Although in theory
the First Amendment might have invalidated those provisions,
approval of the amendment by the same individuals
who had included the oaths in the Constitution
suggested strongly that they were consistent. The
Court's recognition of this consistency did not involve a
departure from its many decisions striking down oaths
that infringed First and Fourteenth Amendment rights.
The Court read the Georgia oath as calling simply for
an acknowledgment of a willingness to abide by "constitutional
processes of government." 385 U. S., at 135.
Accord, Knight v. Board of Regents, 390 U.S. 36 ( 1968)
(without opinion). Although disagreeing on other
points, in Wadmond, supa, all members of the Court
agreed on this point. MR. JusTICE MARSHALL noted
there, while dissenting as to other points,
"The oath of constitutional support requires an individual
assuming public responsibilities to affirm
... that he will endeavor to perform his public
duties lawfully." 401 U. S., at 192.
The Court has further made clear that an oath need
not parrot the exact language of the constitutional oaths
to be constitutionally proper. Thus in Ohlson v. Phillips,
397 U. S. 317 (1970), we sustained the constitutionality
of a state requirement that teachers swear to
"uphold" the Constitution. The District Court had
concluded that the oath was simply a " 'recognition that
ours is a government of laws and not of men,' " and that
the oath involved an a.ffirmation of "organic law" and
rejection of "the use of force to overthrow the governCOLE
v. RICHARDSON 683
676 Opinion of the Court
ment." Ohlson v. Phillips, 304 F. Supp. 1152 (Colo.
1969).
The District Court in the instant case properly recognized
that the first clause of the Massachusetts oath, in
which the individual swears to "uphold and defendn
the Constitutions of the United States and the Commonwealth,
is indistinguishable from the oaths this Court has
recently approved. Yet the District Court applied a
highly literalistic approach to the second clause to strike
it down. We view the second clause of the oath as
essentially the same as the first.
The second clause of the oath contains a promise to
"oppose the overthrow of the government of the United
States of America or of this Commonwealth by force,
violence or by any illegal or unconstitutional method."
The District Court sought to give a dictionary meaning
to this language and found "oppose" to raise the specter
of vague, undefinable responsibilities actively to combat
a potential overthrow of the government. That reading
of the oath understandably troubled the court because
of what it saw as vagueness in terms of what threats
would constitute sufficient danger of overthrow to require
the oath giver to actively oppose overthrow, and
exactly what actions he would have to take in that
respect. Cf. Ohlson v. Phillips, 304 F. Supp., at 1154
and n. 4.
But such a literal approach to the second clause is
inconsistent with the Court's approach to the "support"
oaths. One could make a literal argument that "support"
involves nebulous, undefined responsibilities for
action in some hypothetical situations. As Mr. Justice
Harlan noted in his opinion concurring in the result on
our earlier consideration of this case,
"[A]lmost any word or phrase may be rendered
vague and ambiguous by dissection with a semantic
scalpel. . . . [But such an approach] amounts to
684 OCTOBER TER:\1, 1971
Opinion of the Court 405 U.S.
little more than verbal calisthenics. Cf. S. Chase,
The Tyranny of Words (1959); W. Empson, Seven
Types of Ambiguity (1955)." Cole v. Richardson,
397 U. S. 238, 240 (1970).
We have rejected such rigidly literal notions and recognized
that the purpose leading legislatures to enact such
oaths, just as the purpose leading the Framers of our
Constitution to include the two explicit constitutional
oaths, was not to create specific responsibilities but to
assure that those in positions of public trust were willing
to commit themselves to live by the constitutional processes
of our system, as MR. J VSTICE MARSHALL suggested
in Wadmond, 401 U. S., at 192. Here the second clause
does not require specific action in some hypothetical
or actual situation. Plainly "force, violence or . . . any
illegal or unconstitutional method" modifies "overthrow"
and does not commit the oath taker to meet force with
force. Just as the connotatively active word "support"
has been interpreted to mean simply a commitment to
abide by our constitutional system, the second clause
of this oath is merely oriented to the negative -implication
of this notion; it is a commitment not to use
illegal and constitutionally unprotected force to change
the constitutional system. The second clause does not
expa:0.d the obligation of the first; it simply makes clear
the application of the first clause to a particular issue.
Such repetition, whether for emphasis or cadence, seems
to be the wont of authors of oaths. That the second
clause may be redundant is no ground to strike it down;
we are not charged with correcting grammar but with
enforcing a constitution.
The purpose of the oath is clear on its face. We cannot
presume that the Massachusetts Legislature intended
by its use of such general terms as "uphold," "defend,"
and "oppose" to impose obligations of specific, positive
action on oath takers. Any such construction would
COLE v. RICHARDSON 685
676 Opinion of the Court
raise serious questions whether the oath was so vague as
to amount to a denial of due process. Connally v. General
Construction Co., 269 U. S. 385 (1926); Cramp v.
Board of Public Instruction, 368 U. S., at 287.
Nor is the oath as interpreted void for vagueness. As
Mr. Justice Harlan pointed out in his opinion on our
earlier consideration of this case, the oath is "no more
than an amenity." 397 U. S., at 240. It is punishable
only by a prosecution for perjury 3 and, since perjury is
a knowing and willful falsehood, the constitutional vice
of punishment without fair warning cannot occur here.
See American Communications Assn. v. Douds, 339
U. S. 382, 413 (1950). Nor here is there any problem
of the punishment inflicted by mere prosecution.
See Cramp v. Board of Public Instruction, 368 U. S., at
284. There has been no prosecution under this statute
since its 1948 enactment, and there is no indication that
prosecutions have been planned or begun. The oath
"triggered no serious possibility of prosecution" by the
Commonwealth. Cole v. Richardson, 397 U. S., at 241.
\Vere we confronted with a record of actual prosecutions
or harassment through threatened prosecutions, we might
be faced with a different question. Those who view the
3 The District Court interpreted Mass. Gen. Laws, c. 264, § 15,
which punishes a "[v]iolation of section fourteen," seen. 1, supra, as
"presumably" punishing "a failure to 'live up' to the oath." We see
no basis for this interpretation. The clear purpose of § 15 is to punish
the failure to comply with the directive aspects of § 14, which requires
that every person entering the employ of the Commonwealth subscribe
to the oath and file it with a certain state employee. Section
14, which includes the oath, says that it is taken upon the penalty
of perjury but mentions nothing about a continuing criminll l responsibility
to "live up" to it.
The time may come when the value of oaths in routine public
employment will be thought not "worth the candle" for all the division
of opinion they engender. However, while oaths are required
by legislative acts it is not our function to evaluate their wisdom
or utility but only to decide whether they offend the Constitution.
686 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Massachusetts oath in terms of an endless "parade of
horribles" would do well to bear in mind that many of
the hazards of human existence that can be imagined are
circumscribed by the classic observation of Mr. Justice
Holmes, when confronted with the prophecy of dire
consequences of certain judicial action, that it would not
occur "while this Court sits." Panhandle Oil Co. v.
Knox, 277 U. S. 218, 223 (dissenting).
Appellee mounts an additional attack on the Massachusetts
oath program in that it does not provide for a
hearing prior to the determination not to hire the individual
based on the refusal to subscribe to the oath.
All of the cases in this Court that require a hearing
before discharge for failure to take an oath involved impermissible
oaths. In Slochower v. Board of Education,
350 U. S. 551 (1956) (not an oath case), the State
sought to dismiss a professor for claiming the Fifth
Amendment privilege in a United States Senate committee
hearing; the Court held the State's action invalid
because the exercise of the privilege was a constitutional
right from which the State could not draw any rational
inference of disloyalty. Appellee relies on Nostrand v.
Little, 362 U. S. 474 (1960), and Connell v. Higginbotham,
403 U. S. 207 (1971), but in those cases the
Court held only that the mere refusal to take the particular
oath was not a constitutionally permissible basis
for termination. In the circumstances of those cases,
only by holding a hearing, showing evidence of disloyalty,
and allowing the employee an opportunity to respond
might the State develop a permissible basis for concluding
that the employee was to be discharged.
Since there is no constitutionally protected right to
overthrow a government by force, violence, or illegal or
unconstitutional means, no constitutional right is infringed
by an oath to abide by the constitutional system
in the future. Therefore, there is no requirement that
COLE v. RICHARDSON 687
676 DouGLAS, J., dissenting
one who refuses to take the Massachusetts oath be
granted a hearing for the determination of some other
fact before being discharged.
The judgment of the District Court is reversed and the
case is remanded for further proceedings consistent with
this opinion.
MR. JusTICE POWELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of this case.
MR. JusTICE STEWART and MR. JusTICE WHITE,
concurring.
All agree that the first part of this oath, under which
a person swears to "uphold and defend" the Federal and
State Constitutions, is wholly valid under the First and
Fourteenth Amendments. But if "uphold" and "defend"
are not words that suffer from vagueness and
overbreadth, then surely neither is the word "oppose"
in the second part of the oath.
When the case was here before, Mr. Justice Harlan
expressed the view that "[t]his oath does not impinge
on conscience or belief, except to the extent that oath
taking as such may offend particular individuals." Cole
v. Richardson, 397 U.S. 238, 241 (concurring in result).
We agree. And as to such individuals, the Massachusetts
law clearly permits an affirmation rather than an
oath. Mass. Gen. Laws, c. 264, § 14.
On this basis we join the opinion and judgment of
the Court.
MR. JUSTICE DouGLAS, dissenting.
The part of the oath that says "I will oppose the overthrow
of the government of the United States of America
or of this Commonwealth by force, violence or by any
illegal or unconstitutional method" is plainly unconstitutional
by our decisions. See Board of Education v.
Barnette, 319 U. S. 624, 634.
688 OCTOBER TERM, 1971
DoUGLAS, J., dissenting 405 U.S.
Advocacy of basic fundamental changes in government,
which might popularly be described as "overthrow," is
within the protection of the First Amendment even when
it is restrictively construed. In Brandenburg v. Ohio,
395 U. S. 444, a case involving criminal syndicalism, this
Court ruled that a State may not "forbid or proscribe
advocacy of the use of force or of law violation except
where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce
such action." Id., at 447. The same idea was put in
somewhat different words in Noto v. United States, 367
U. S. 290, 297-298, that "abstract teaching" of overthrow
is protected activity as contrasted to "preparing a group
for violent action and steeling it to such action." And
see Yates v. United States, 354 U. S. 298, 318.
The present oath makes such advocacy a possible offense
under a restrictive reading of the First Amendment.
The views expressed by Mr. Justice Black and me give
the First Amendment a more expansive reading. We
have condemned loyalty oaths as "manifestation[s] of a
national network of laws aimed at coercing and controlling
the minds of men. Test oaths are notorious tools
of tyranny. When used to shackle the mind they are, or
at least they should be, unspeakably odious to a free
people." Wieman v. Updegraff, 344 U. S. 183, 193
(Black, J., concurring). And see Speiser v. Randall, 357
U. S. 513, 532 (DouGLAS, J., concurring). We said in
Brandenburg that the protection of the First Amendment
as applied to the States through the Fourteenth does
not depend on the "quality of advocacy," since that
"turns on the depth of the conviction." 395 U. S., at
457 (DOUGLAS, J., concurring). The line between the permissible
control by a State and the impermissible control
is "the line between ideas and overt acts." Id., at 456.
"The First Amendment ... leaves the way wide open
for people to favor, discuss, advocate, or incite causes
COLE v. RICHARDSON 689
676 DoUGLAS, J., dissenting
and doctrines however obnoxious and antagonistic such
views may be to the rest of us." Yates v. United States,
supra, at 344 (Black, J., concurring and dissenting).
This oath, however, requires that appellee "oppose" that
which she has an indisputable right to advocate.1 Yet
the majority concludes that the promise of "opposition"-
exacted as a condition of public employment 2-is a
mere redundancy which does not impair appellee's freedom
of expression.3
1 The majority makes the suggestion that "we might be faced
with a different question" if there were "a record of actual prosecutions
or harassment through threatened prosecutions." Ante, at 685.
Here, appellee has been discharged from employment- and denied
her source of livelihood because of her refusal to subscribe to an
unconstitutional oath. If the oath suffers from constitutional infirmities,
then it matters not whether the penalties imposed for refusing
to subscribe to it were criminal or the denial of employment.
2 The Court is correct when it says "there is no constitutionally
protected right to overthrow a government by force, violence, or
illegal or unconstitutional means," ante, at 686, but that has no
bearing on the present case. What is involved here is appellee's
right to espouse and advocate ideas which may be unpopular to
some. How we can honor that right to advocate while exacting
the promise to "oppose,'' the Court leaves unanswered.
3 The majority first chides the District Court for taking "a literal
approach" and "giv[ing] [the word 'oppose'] a dictionary meaning."
The majority then reads "oppose" to be a mere "negative implication
of th[e] notion" of "a commitment to abide by our constitutional
system" not requiring "specific, positive action." Ante, at
683, 684. Having thus emasculated the word, the majority then
labels it as "redundant" and a "repetition," ibid., and concludes that
the oath, in its entirety, is simply "to abide by the constitutional
system in the future." Ante, at 686.
If the oath is void for vagueness or overbreadth, it is because the
r.ommon meaning of its words is so imprecise or so farreaching as
to place a "chilling effect" upon constitutionally protected expression.
This vice-readily apparent in the present oath-is emphasized
rather than avoided by the majority's opinion. The tortured route
which the majority takes to give this oath a supposedly constitutional
interpretation merely emphasizes the unconstitutional effect those
words would have were they to be given their natural meaning.
{390 OCTOBER TERM, 1971
DouaLAs, J., dissenting 405 U. S.
It is suggested, however, that because only the second
portion of the oath is unconstitutional we should sever
the two clauses and uphold the first. Even on this assumption,
the entire oath must fal1. This Court should,
of course, base its decisions upon local law where, in so
doing, we may avoid deciding federal constitutional questions.
Here, we have been cited to no evidence of a
legislative intent to separate the two clauses of the oath.
This case is thus governed by Pedlosky v. Massachusetts
Institute of Technology, 352 Mass. 127, 224 N. E. 2d 414
(1967), where the Supreme Judicial Court of Massachusetts
was confronted with a two-part test oath similar
in effect to the one before us.• "The substance of the
oath [ was] not confined merely to a declaration of support
of the Federal and State Constitutions. It equally
concern [ ed] an undertaking by the plaintiff that 'I will
faithfully discharge the duties of the position of assistant
professor of mathematics according to the best of my
ability.'" Id., at 128-129, 224 N. E. 2d, at 416. Finding
the oath to be "altogether too vague a standard to
enforce judicially" and being without evidence "whether
the Legislature would have enacted [it] without the [invalid]
provision," the court was unable to hold that
the provisions were severable, and thus unanimously
struck down the entire oath. Id., at 129, 224 N. E. 2d,
at 416.
I would follow the lead of the Supreme Judicial Court
of Massachusetts--the court which has the final word on
how the statutes of that State are to be construed-and
hold that the entire oath must fall.
4 The oath provided: "I do solemnly swear ( or affirm) that I will
support the Constitution of the United States and the Constitution
of the Commonwealth of Massachusetts, and that I will faithfully
discharge the duties of the position of (insert name of position) according
to the best of my ability."
COLE v. RICHARDSON 691
676 MARSHALL, J., dissenting
I conclude that whether the First Amendment is read
restrictively or literally as Jefferson would have read it,
the oath which the District Court struck down, 300 F.
Supp. 1321, is plainly unconstitutional. I would affirm
its judgment.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE
BRENNAN joins, dissenting.
Appellee was discharged from her job with the Boston
State Hospital solely because she refused to swear or affirm
the following oath : 1
"I will uphold and defend the Constitution of the
United States of America and the Constitution of
the Commonwealth of Massachusetts and . . . I
will oppose the overthrow of the government of the
United States of America or of this Commonwealth
by force, violence or by any illegal or unconstitutional
method." Mass. Gen. Laws, c. 264, § 14.
She brought this action in the United States District
Court for the District of Massachusetts seeking declaratory
and injunctive relief against enforcement of the oath
as a condition of her employment.2 The District Court
found that the oath was unconstitutionally vague and
granted the relief requested by appellee. The Court
now reverses the District Court and sustains the validity
1 Appellee was not requested to take the oath before she began
her employment. The reasons for the failure of the hospital officials
to require the oath as a prerequisite to employment are not readily
apparent from the record. In any event, the oath was required of
all state employees at all relevant times.
2 Appellee also sought damages for back wages allegedly owed. It
ie apparent that all back wages have now been paid. Thus, this
claim is no longer in controversy. The District Court rejected appellee's
belated attempt to make a claim for loss of wages due to
termination, and this decision was well within its discretion under
Rule 15 of the Federal Rules of Civil Procedure.
692 OCTOBER TERM, 1971
MARSHALL, J., dissenting 405 U.S.
of the oath in its entirety. In my opinion, the second
half of the oath is not only vague, but also overbroad.
Accordingly, I dissent.
The first half of the oath, requiring an employee to
indicate a willingness to "uphold and defend" the state
and federal Constitutions, is clearly constitutional. It
is nothing more than the traditional oath of support
that we have unanimously upheld as a condition of
public employment.
It is the second half of the oath to which I object. I
find the language "I will oppose the overthrow of the
government of the United States of America or of this
Commonwealth by force, violence or by any illegal or unconstitutional
method" to be impermissibly vague and
over broad.
It is vague because "men of common intelligence
[must] speculate at their peril on its meaning." Whitehill
v. Elkins, 389 U. S. 54, 59 (1967). See also Connally
v. General Construction Co., 269 U. S. 385, 391
(1926); Cline v. Frink Dairy Co., 274 U. S. 445, 465
(1927); Lanzetta v. New Jersey, 306 U.S. 451,453 (1939).
The most striking problem with the oath is that it is not
clear whether the last prepositional phrase modifies the
verb "oppose" or the noun "overthrow." Thus, an affiant
cannot be certain whether he is swearing that he
will "oppose" governmental overthrow by utilizing every
means at his disposal, including those specifically prohibited
by the laws or constitutions he has sworn to
support, or whether he has merely accepted the responsibility
of opposing illegal or unconstitutional overthrows.
The first reading would almost surely be unconstitutional
since it is well established that a State
cannot compel a citizen to waive the rights guaranteed
him by the Constitution in order to obtain employment.
See, e. (]., Pickering v. Board of Education,
COLE v. RICHARDSON 693
676 MARSHALL, J., dissenting
391 U. S. 563 (1968); Garrity v. New Jersey, 385
U. S. 493 ( 1967). This reading would also make the
second half of the oath inconsistent with the first half.
It is far from clear to me which reading the Massachusetts
Legislature intended. A reasonable man could certainly
read the oath either way, and Massachusetts has
not offered to make a binding clarification of its purport.
Even assuming that the second reading were unconditionally
adopted by the appellants and communicated
to prospective employees, the vice of vagueness is still not
cured, for the affiant is left with little guidance as to the
responsibilities he has assumed in taking the oath. In
what form, for example, must he manifest his opposition
to an overthrow? At oral argument in the District
Court, the Commonwealth's attorney asserted that citizens
have three standards of obligation to their government
to oppose overthrows:
"The ordinary citizen who has taken no oath has
an obligation to act in extremis; a person who has
taken the first part of the present oath would have
a somewhat larger obligation, and one who has ta.ken
the second part has one still larger." 300 F. Supp.
1321, 1322.3
3 It is clear that both speech and conduct are affected by this
portion of the oath. Appellants conceded as much in their brief in
the court below :
"[I]n the event that a clear and present danger arose of the actual
overthrow of the government, ... the public employee [would] be
required to use reasonable means at his disposal to attempt to thwart
that effort. What he might do in such circumstances could range
from the use of physical force to speaking out against the downfall
of the government. The kind of response required would be commensurate
with the circumstances and with the employee's ability,
his training, and the means available to him at the time." (Emphasis
added.) Quoted at 300 F. Supp., at 1322.
The final sentence of this quotation evidences the confusion that
694 OCTOBER TERM, 1971
:MARSHALL, J., dissenting 405 u. s.
I agree with the conclusion of the District Court that
" [ t] he very fact that such varied standards . . . can be
suggested is enough to condemn the language as hopelessly
vague." Id., at 1323.
Vagueness is also inherent in the use of the word
"overthrow." ·when does an affiant's undefined responsibility
under the oath require action: When an overthrow
is threatened? When an overthrow is likely to
be threatened? When a threatened overthrow has some
chance of success? Cf. Brandenburg v. Ohio, 395 U. S.
444 (1969); Yates v. United States, 354 U.S. 298 (1957);
Dennis v. United States, 341 U. S. 494 (1951). The
oath answers none of these questions, and for that
reason, if no other, cannot stand.
The importance of clarity and precision in an oath
of this kind should not be underestimated. Chapter
264, § 14, of the Massachusetts General Laws provides
that the oath is taken subject to the pains and penalties
of perjury, and § 15 of that chapter specifies that the
pains and penalties may amount to one year in prison
and/ or a $10,000 fine.
the State confesses about the responsibilities assumed by employees
in taking the oath.
In light of the arguments that the appellants make, I find it impossible
to agree with the Court that the second half of the oath
adds nothing to the first. The appellants contend, contrary to the
assertions of the Court, that a citizen who takes the first part of the
oath has more of a duty to his government than one who takes no
oath, and that one who takes the second part of the oath has a
still greater duty. While the appellants are unsure as to where and
how far that duty extends, they never have suggested that it simply
does not exist. The argument is even made that the duty extends to
th!l use of physical force.
Were we faced with merely a traditional oath of support, I would
join the Court. I share the Court's dismay at having to hold state
legislation unconstitutional, but I cannot ignore the thrust that a
State would give its statutes. Cf. Pedlosky v. Massachusetts Institute
of Technology, 352 Mass. 127, 224 N. E. 2d 414 (1967).
COLE v. RICHARDSON 695
676 MARSHALL, J., dissenting
In concluding that this oath is vague, I rely on
Baggett v. Bullitt, 377 U. S. 360 (1964). One part of
the oath considered in Baggett, like the Massachusetts
oath, required that the affiant assert a willingness to
conform future conduct to the criteria set forth in an
oath taken under penalty of perjury. The Court struck
down the oath in Baggett, and MR. JusTICE WHITE'S
opinion for the Court explained in great detail the
inordinate difficulties employees would have in attempting
to conform their actions to the oath's criteria. Id.,
at 371. While the oath involved herein differs somewhat
from that involved in Baggett, the considerations
in both cases are the same, and the results should also
be the same.
I would also strike down the second half of this
oath as an overbroad infringement of protected expression
and conduct.
The Court's prior decisions represent a judgment that
simple affirmative oaths of support are less suspect and
less evil than negative oaths requiring a disaffi.rmance
of political ties, group affiliations, or beliefs. Compare
Connell v. Higginbotham, 403 U. S. 207 (1971); Knight
v. Board of Regents, 269 F. Supp. 339 (SDNY 1967),
aff'd, 390 U. S. 36 (1968); Hosack v. Smiley, 276 F.
Supp. 876 (Colo. 1967), aff'd, 390 U. S. 744 (1968);
Ohlson v. Phillips, 304 F. Supp. 1152 (Colo. 1969), aff'd,
397 U. S. 317 ( 1970) , with Whitehill v. Elkins, 389 U. S.
54 (1967); Baggett v. Bullitt, supra; Cramp v. Board of
Public Instruction, 368 U. S. 278 (1961); Speiser v.
Randall, 357 U. S. 513 (1958); Wieman v. Updegraff,
344 U.S. 183 (1952); Garner v. Board of Public Works,
341 U.S. 716 (1951).
Yet, I think that it is plain that affirmative oaths of
loyalty, no less than negative ones, have odious connotations
and that they present dangers. See Asper, The
Long and Unhappy History of Loyalty Testing in Mary696
OCTOBER TERM, 1971
MARSHALL, J., dissenting 405 U.S.
land, 13 Am. J. Legal Hist. 97, 104 (1969); Askin, Loyalty
Oaths in Retrospect: Freedom and Reality, 1968 Wis. L.
Rev. 498, 502; Note, Loyalty Oaths, 77 Yale L. J. 739,
763 (1968). We have tolerated support oaths as applied
to all government employees only because we view these
affirmations as an expression of "minimal loyalty to
the Government." American Communicatiom Assn. v.
Douds, 339 U.S. 382,415 (1950). Such oaths are merely
indications by the employee "in entirely familiar and
traditional language, that he will endeavor to perform
his public duties lawfully." Law Students Research
Council v. Wadmond, 401 U. S. 154, 192 (MARSHALL, J.,
dissenting).
It is precisely because these oaths are minimal, requiring
only that nominal expression of allegiance
"which, by the common law, every citizen was understood
to owe his sovereign," Knight v. Board of Regents,
269 F. Supp., at 341, that they have been sustained.
That they are minimal intrusions into the freedom
of government officials and employees to think,
speak, and act makes them constitutional; it does not
mean that greater intrusions will be tolerated. On the
contrary, each time this Court has been faced with
an attempt by government to make the traditional support
oath more comprehensive or demanding, it has
struck the oath down. See, e. g., Connell v. Higginbotham,
supra; Baggett v. Bullitt, supra; cf. Bond v.
Floyd, 385 U. S. 116 (1966).
When faced with an "imminent clear and present
danger," governments may be able to compel citizens
to do things that would ordinarily be beyond their
authority to mandate. But, such emergency governmental
power is a far cry from compelling every state
employee in advance of any such danger to promise in
any and all circumstances to conform speech and conduct
to opposing an "overthrow" of the government. The
COLE v. RICHARDSON 697
676 MARSHALL, J., dissenting
Constitution severely circumscribes the power of government
to force its citizens to perform symbolic gestures of
loyalty. Cf. Board of Education v. Barnette, 319 U. S.
624 (1943). Since the overbreadth of the oath tends
to infringe areas of speech and conduct that may be
protected by the Constitution, I believe that it cannot
stand. See Whitehill v. Elkins, supra; Baggett v. Bullitt,
supra; Wieman v. Updegraff, supra; Shelton v.
Tucker, 364 U. S. 479 (1960).
Because only the second half of the oath is invalid, I
would normally favor severing the statute and striking
only the second part. See Connell v. Higginbotham,
supra. However, when confronted with an oath strikingly
similar to that before us, the Supreme Judicial
Court of Massachusetts held that the two portions of
the oath were not severable. Pedlosky v. Massachusetts
Institute of Technology, 352 Mass. 127, 224 N. E. 2d
414 (1967). This Court must bow to state courts in
their construction of state legislation. Therefore, we
must bow to the decision of the state court and strike
the oath in its entirety.
Before concluding, I add one additional word about
loyalty oaths in general. They have become so prevalent
in our country that few Americans have not at one
time or another taken an oath to support federal and
state governments. Such oaths are not only required
as a condition of government employment, but often as
a prerequisite to entering military service, to obtaining
citizenship, to securing a passport or an educational loan
or countless other government offerings. Perhaps we
have become so inundated with a variety of these oaths
that we tend to ignore the difficult constitutional issues
that they present. It is the duty of judges, however,
to endeavor to remain sensitive to these issues and not
to "encourage the casual taking of oaths by upholding
the discharge or exclusion from public employment of
698 OCTOBER TERM, 1971
MARSHALL, J., dissenting 405 U.S.
those with a conscientious and scrupulous regard for such
undertakings." Baggett v. Bullitt, supra, at 373-374.
Loyalty oaths do not have a very pleasant history in
this country. Whereas they may be developed initially
as a means of fostering power and confidence in government,
there is a danger that they will swell "into an
instrument of thought control and a means of enforcing
complete political conformity." Asper, The Long and
Unhappy History of Loyalty Testing in Maryland, 13
Am. J. Legal Hist. 97, 108 (1969). Within the limits of
the Constitution it is, of course, for the legislators to
weigh the utility of the oaths and their potential dangers
and to strike a balance. But, as a people, we should always
keep in mind the words of Mr. Justice Black, concurring
in Spei.ser v. Randall, 357 U. S., at 532:
"Loyalty oaths, as well as other contemporary 'security
measures,' tend to stifle all forms of unorthodox
or unpopular thinking or expression-the kind
of thought and expression which has played such a
vital and beneficial role in the history of this Nation.
The result is a stultifying conformity which
in the end may well turn out to be more destructive
to our free society than foreign agents could ever
hope to be. . . . I am certain that loyalty to the
United States can never be secured by the endless
proliferation of 'loyalty' oaths; loyalty must arise
spontaneously from the hearts of people who love
their country and respect their government."
Accordingly, I would affirm the decision of the District
Court.
GRUBBS v. GENERAL ELECTRIC CREDIT CORP. 699
Opinion of the Court
GRUBBS, DBA T. R. GRUBBS TIRE & APPLIANCE
v. GENERAL ELECTRIC CREDIT CORP.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 71-257. Argued March 23, 1972-Decided April 18, 1972
Respondent, a New York corporation, brought suit for $66,000 on
a promissory note against petitioner, a citizen of Texas, in a
Texas state court, and petitioner filed a cross-action for $25,000
seeking damages for slander, conversion, and conspiracy in restraint
of trade. A later cross-action included the United States,
which held a judgment against petitioner, as a party defendant.
The action was removed to the Federal District Court for trial
of the issues, on petition of the United States. The District
Court, without objection, considered all the issues and awarded
petitioner a $20,000 judgment against respondent. The Court
of Appeals, sua sponte, held that the District Court lacked
jurisdiction and ordered the case returned to the state court.
Held: Where after removal a case is tried on the merits without
objection and the federal court enters a judgment, the issue on
appeal is not whether the case was properly removed, but whether
the District Court would have had original jurisdiction if the case
had been filed in that court. Here there was diversity jurisdiction
in the District Court if the action had been brought there
originally. Pp. 702-706.
447 F. 2d 286, reversed and remanded.
REHNQUIST, J., delivered the opinion for a unanimous Court.
Bill J. Cornelius argued the cause for petitioner. With
him on the brief was J. R. Cornelius.
Hubert D. Johnson argued the cause and filed a brief
for respondent.
MR. JUSTICE REHNQUIST delivered the opinion of the
Court.
Petitioner recovered a money judgment against re~
spondent in the United States District Court for the
700 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
Eastern District of Texas, and respondent appealed to
the United States Court of Appeals for the Fifth Circuit.
That court held the District Court lacked jurisdiction
of the case, and reversed the judgment with
instructions that the case be remanded to the Texas
state court whence it had been removed. This Court
granted certiorari, 404 U. S. 983. We have concluded
that, whether or not the case was properly removed, the
District Court did have jurisdiction of the parties at
the time it entered judgment. Under such circumstances
the validity of the removal procedure followed
may not be raised for the first time on appeal, and we
accordingly reverse the judgment of the Court of
Appeals.
In September 1964 respondent General Electric Credit
Corp. (GECC) commenced a lawsuit against petitioner
Grubbs by the filing of a petition in the Texas state
trial court. The petition sought recovery upon a
promissory note claimed to have been previously executed
by petitioner to GECC in the principal sum of some
$66,000. Two years later, petitioner Grubbs filed an
amended answer and "cross-action," seeking damages
from respondent and from the General Electric Co.
(GE) by reason of alleged slander, conversion, and
conspiracy in restraint of trade.' GE appeared in the
state court in answer to petitioner's cross-action against
it, a11d respondent likewise filed an answer.
The following year, petitioner filed a second amended
answer and cross-actions, one of which included the
United States as an added party defendant. The basis
asserted by petitioner for naming the United States
as a party was the fact that the latter held an out-
1 The business relationship of the parties was as follows. Grubbs
was a franchised dealer for GE. GECC provided financing for customers
of Grubbs who purchased GE products.
GRUBBS v. GENERAL ELECTRIC CREDIT CORP. 701
699 Opinion of the Court
standing judgment against petitioner, as did several of
his other creditors, and petitioner prayed the state court
to determine priorities among the judgment liens. Responding
to the gathering momentum of this longdormant
lawsuit, the United States then filed in the
United States District Court for the Eastern District of
Texas a petition for removal of the action to that court
"for trial and determination upon the merits of all issues
or claims therein, as is provided by Title 28, Section[s]
1444, 1441 (c) and 1446."
All of the parties treated the effect of the removal
petition as placing before the District Court not only
the claim by petitioner against the United States for
adjudication of lien priorities, but also respondent's
claim against petitioner on the promissory note and
petitioner's claim for damages against respondent baeed
on conspiracy to restrain trade and tortious interference
with business relations.
At no time following the filing of the removal petition
by the United States did respondent, by motion to
remand or otherwise, object to the District Court's taking
jurisdiction of the entire "action." In that court, the
United States answered petitioner's cross-action and filed
its own "cross-action" against respondent and GE,
asserting that the latter two had maliciously interfered
with the contractual relationship between petitioner and
the United States, and seeking damages as a result of
this alleged wrong.
The case was ultimately tried to the District Court
without a jury. That court held against respondent on
its promissory-note claim, held in favor of petitioner on
his claim ag~inst respondent for tortious interference, and
awarded $20,000 damages thereon, and dismissed the
claims of petitioner and the United States against
GE and the claim of the United States against respondent.
The court further found that it was unable to
702 OCTOBER TERM, 1971
Opinion of the Court 405 U. S.
determine the priority of liens as between the various
parties. Judgment was accordingly entered in favor of
petitioner Grubbs and against respondent GECC in the
amount of $20,000, and providing that the remaining
parties take nothing by their actions.
GECC appealed to the Court of Appeals, which
on its own motion questioned the jurisdiction of the
District Court. After calling for supplemental briefs
on the issue, the Court of Appeals decided that the
only conceivable basis for jurisdiction of the action in
the District Court was the removal by the United States
purportedly in accordance with 28 U. S. C. § 1444.
That court held, however, that petitioner's "interpleader"
of the United States and other parties for a determination
of priority of judgment liens was a spurious basis
for joining the United States as a party defendant under
28 U. S. C. § 2410. Therefore, in the view of that
court, the provisions of 28 U. S. C. § 1444, authorizing
removal by the United States of an action brought
under 28 U. S. C. § 2410, were not available to the
Government. Concluding, thus, that the removal had
not been authorized by statute, the Court of Appeals
decided that there was no other basis for the District
Court's jurisdiction of the action, and that the case
should be remanded to the state court in which it had
originated.
Longstanding decisions of this Court make clear, however,
that where after removal a case is tried on the
merits without objection and the federal court enters
judgment, the issue in subsequent proceedings on appeal
is not whether the case was properly removed, but
whether the federal district court would have had
original jurisdiction of the case had it been filed in that
court. In Baggs v. Martin, 179 U. S. 206 (1900), a
receiver appointed by a federal court was sued in state
court and removed the action to the federal court that
GRUBBS v. GENERAL ELECTRIC CREDIT CORP. 703
699 Opinion of the Court
appointed him. Following judgment on the merits, the
receiver sought reversal of the judgment on the ground
that the case was not properly removable from the state
court. Since the federal court that had earlier appointed
the receiver would have had original jurisdiction
of an action against him, this Court held that he could
not then object to the removal of the case when removal
had come as a result of his own action.
Mackay v. Uinta Development Co., 229 U. S. 173
(1913), dealt with an action that had been commenced
in the Wyoming state court between two citizens of
different States. Plaintiff's claim was for less than the
jurisdictional amount, but defendant's counterclaim exceeded
the jurisdictional amount. The case was reremoved
to federal court without objection by either
party, and there tried on the merits. When the losing
party later sought to upset a judgment against him on
the merits because of failure to comply with the removal
statutes, this Court rejected the claim, saying:
"[R] egardless of the manner in which the case
was brought or how the attendance of the parties in
the United States court was secured, there was presented
to the Circuit Court a controversy between
citizens of different States in which the amount
claimed by one non-resident was more than $2,000,
exclusive of interest and costs. As the court had
jurisdiction of the subject-matter the parties could
have been realigned by making Mackay plaintiff
and the Development Company defendant, if that
had been found proper. But if there was any irregularity
in docketing the case or in the order of the
pleadings such an irregularity was waivable and
neither it nor the method of getting the parties
before the court operated to deprive it of the power
to determine the cause." Id., at 176-177.
704 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Applying this doctrine to the case before us, we note
that the parties concede in their briefs that petitioner
is a citizen of Texas, and that respondent and GE are
citizens of New York for purposes of diversity jurisdiction.
This concession is supported by excerpts from
discovery proceedings included in the record. Respondent
GECC in its pleading initiating the action in the state
trial court sought recovery of $66,000 from petitioner
Grubbs; Grubbs in his state court cross-action sought
recovery of $25,000 from respondent. There was thus
diversity jurisdiction in the Federal District Court under
28 U. S. C. § 1332 if the action had been brought in that
court originally.
In American Fire & Casualty Co. v. Finn, 341 U. S. 6
( 1951), this Court held that the rule enunciated in Baggs
v. Martin, supra, had no application to a case where at
the time of judgment citizens of the same State were on
both sides of the litigation. There the state court plaintiff
had joined two insurance carriers and their local
agent in an action to recover for a fire loss. Finn held
that the dispute between the plaintiff and the insurance
carriers was not a "separate and independent claim or
cause of action" under 28 U.S. C. § 1441 (c), and that
therefore removal of the action to a federal court by
one of the carriers was unauthorized by statute. Since
complete diversity did not obtain even as of the date
of judgment, and since there was no other basis for
federal jurisdiction, this Court reversed the judgment
of the Court of Appeals, which had held the case properly
removable.
In this case there were, of course, parties other than
petitioner, respondent, and GE, both at the time of
removal and at the time of judgment. Indeed, the case
might be said to abound in parties. Petitioner in his
"cross-action" against the United States for determination
of lien priorities asserted a claim against an addiGRUBBS
v. GENERAL ELECTRIC CREDIT CORP. 705
699 Opinion of the Court
tional party that had virtually no relationship to the
claim or relief sought by petitioner against respondent,
or that sought by respondent against petitioner.2
While, of course, Texas is free to establish such rules
of practice for her own courts as she chooses, the removal
statutes and decisions of this Court are intended
to have uniform nationwide application. "Hence the
Act of Congress must be construed as setting up its own
criteria, irrespective of local law, for determining in what
instances suits are to be removed from the state to the
federal courts." Shamrock Oil Corp. v. Sheets, 313 U. S.
100,104 (1941). The rule enunciated in Baggs v. Martin,
supra, Mackay v. Uinta Development Co., supra, and
American Fire & Casualty Co. v. Pinn, supra, likewise
lays down a doctrine that is intended to have uniform
nationwide application. However many parties,
cross-claims, or indeed lawsuits Texas practice may permit
to be joined in one "case" or one "action," the
requirement of Finn was applied in the context of a twosided
lawsuit. We conclude that the requirement that
jurisdiction exist at the time of judgment, stated in that
case, is satisfied here where the District Court had
jurisdiction to render judgment as between the plaintiffcounter-
defendant, the defendant-counterclaimant, and
the additional counter-defendant. It would serve no
2 Petitioner's state court cross-action against the United States was
by its terms based on "Rule 22 of the U. S. Rules of Civil Procedure."
However, under Fed. Rule Civ. Proc. 22, a defendant
seeking interpleader must frame his pleading either as a crossclaim
seeking relief against a co-party already in the lawsuit, or
as a counterclaim seeking relief against the plaintiff. If the defendant
states a claim seeking relief against such a co-party or
plaintiff-counter-defendant, he may seek to bring in additional
parties under the joinder provisions of Rule 20. But the interpleader
provided by Rule 22 must have some nexus with a party
already in the case. As noted above, petitioner's interpleader claim
sought no relief against any other party in the action.
706 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
purpose to require that in order to sustain jurisdiction
in such a case, the prevailing party in the original twosided
litigation must go further and show that there was
likewise jurisdiction as to virtually unrelated claims
that the state court had permitted to be joined in the
same lawsuit.
Finding that the necessary . jurisdiction did exist, we
reverse the judgment of the Court of Appeals and remand
the case to that court for consideration of respondent's
appeal on the merits.
Reversed and remanded.
EVANSVILLE AIRPORT v. DELTA AIRLINES 707
Syllabus
EVANSVILLE-VANDERBURGH AIRPORT
AUTHORITY DISTRICT ET AL. v.
DELTA AIRLINES, INC., ET AL.
CERTIORARI TO THE SUPREME COURT OF INDIANA
No. 70-99. Argued February 23-24, 1972-Decided April 19, 1972*
In No. 70-99 respondents challenged a "use and service charge"
of $1 "for each passenger enplaning any commercial aircraft
operated from the Dress Memorial Airport" in Evansville, Indiana.
The funds were to be used for the improvement and
maintenance of the airport. The Indiana Supreme Court, upholding
the lower court, held the charge to be an unreasonable burden
on interstate commerce in violation of Art. I, § 8, of the Constitution.
In No. 70-212 a New Hampshire statute levied a
service charge of $1 for each passenger enplaning a scheduled
commercial airliner weighing 12,.500 pounds or more, and a 50¢
charge for each passenger enplaning a scheduled aircraft weighing
less than 12,500 pounds. Fifty percent of the funds were allocated
to the State's aeronautical fund, with the balance going to the
municipalities or airport authorities owning the public landing
areas. The New Hampshire Supreme Court sustained the constitutionality
of the statute. Held: The charges imposed in these
cases are constitutional. Pp. 711-722.
(a) A charge designed to make the user of state-provided
facilities pay a reasonable fee for their construction and maintenance
may constitutionally be imposed on interstate and intrastate
users alike. Crandall v. Nevada, 6 Wall. 35, distinguished.
Pp. 711-717.
(b) The charges, applicable to both interstate and intrastate
flights, do not discriminate against interstate commerce and
travel. P. 717.
(c) Although not all users of the airport facilities are subject
to the fees, and there are distinctions among different classes of
passengers and aircraft, the charges reflect a fair, albeit imperfect,
*Together with No. 70-212, Northeast Airlines, Inc., et al. v.
New Hampshire Aeronautics Commission et al., on appeal from the
Supreme Court of New Hampshire, argued February 24, 1972.
708 OCTOBER TERM, 1971
Syllabus 405 U.S.
approximation of the use of the facilities by those for whose
benefit they are imposed, and the exemptions are not wholly
unreasonable. Pp. 717-719.
(d) The airlines have not shown the charges to be excessive
in relation to the costs incurred by the taxing authorities in
constructing and maintaining airports with public funds. New
Hampshire's decision to reimburse local expenditures through
unrestricted revenues is not a matter of concern to the airlines.
Pp. 719-720.
(e) The charges do not conflict with any federal policies furthering
uniform national regulation of air transportation. Pp. 720--
721.
(f) There is no suggestion here that the charges do not advance
the constitutionally permissible objective of having interstate
commerce bear a fair share of airport costs. P. 722.
No. 70-99, - Ind. - , 265 N. E. 2d 27, reversed; No. 70-212,
111 N. H. 5, 273 A. 2d 676, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which BuRGER,
C. J., and STEWART, WHITE, MARSHALL, BLACKMUN, and REHNQUIST,
JJ., joined. DouGLAS, J., filed a dissenting opinion, post, p.
722. PowELL, J., took no part in the consideration or decision of
the cases.
Howard P. Trockman argued the cause for petitioners
in No. 70--99. With him on the briefs was James F.
Flynn. John K. Mallory, Jr., argued the cause for respondents
in No. 70--99 and for appellants in No. 70--212.
With him on the brief in No. 70-99 were Fred P. Bamberger,
J. Eugene Marans, and Jeffrey R. Kinney. With
hiin on the brief in No. 70-212 were Joseph A. Millimet
and Mr. Marans. W. Michael Dunn, Assistant Attorney
General of New Hampshire, argued the cause for appellees
in No. 70--212. With him on the brief was Warren
B. Rudman, Attorney General.
Donald G. Alexander filed a brief for the National
League of Cities as amicus curiae urging reversal in
No. 70-99.
EVANSVILLE AIRPORT v. DELTA AIRLINES 700
707 Opinion of the Court
MR. JuSTICE BRENNAN delivered the opm10n of the
Court.
The question is whether a charge by a State or municipality
of $1 per commercial airline passenger to help
defray the costs of airport construction and maintenance
violates the Federal Constitution. Our answer is that,
as imposed in these two cases, the charge does not violate
the Federal Constitution.
No. 70-99. Evansville-Vanderburgh Airport Authority
District was created by the Indiana Legislature to operate
Dress Memorial Airport in Evansville, Indiana. Under
its authority to enact ordinances adopting rates and
charges to be collected from users of the airport facilities
and services, the Airport Authority enacted Ordinance
No. 33 establishing "a use and service charge of One
Dollar ($1.00) for each passenger enplaning any commercial
aircraft operated from the Dress Memorial Airport."
The commercial airlines are required to collect
and remit the charge, less 6% allowed to cover the airlines'
administrative costs in doing so. The moneys collected
are held by the Airport Authority "in a separate
fund for the purpose of defraying the present and future
costs incurred by said Airport Authority in the construction,
improvement, equipment, and maintenance of said
Airport and its facilities for the continued use and future
enjoyment by all users thereof."
Respondents challenged the constitutionality of the
charge in an action filed in the Superior Court of Vanderburgh
County, Indiana. The court held that the charge
constituted an unreasonable burden on interstate commerce
in violation of Art. I, § 8, of the Federal Constitution
and permanently enjoined enforcement of the
ordinance. The Indiana Supreme Court affirmed, -
Ind. - , 265 N. E. 2d 27 (1970). We granted certiorari,
404 U. S. 820 (1971). We reverse.
710 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
No. 70-212. Chapter 391 of the 1969 Laws of New
Hampshire, amending N. H. Rev. Stat. Ann. §§ 422:3,
422:43, 422:45, requires every interstate and intrastate
"common carrier of passengers for hire by aircraft on a
regular schedule" that uses any of New Hampshire's five
publicly owned and operated airports to "pay a service
charge of one dollar with respect to each passenger emplaning
1 upon its aircraft with a gross weight of 12,500
pounds or more, or a service charge of fifty cents with respect
to each passenger emplaning upon its aircraft with a
gross weight of less than 12,500 pounds." Fifty percent
of the moneys collected are allocated to the State's aeronautical
fund and 50% "to the municipalities or the airport
authorities owning the public landing areas at which
the fees ... were imposed." The airlines are authorized
to pass on the charge to the passenger.2
1 "Emplane" is a variant of "enplane." ·webster's Third New
International Dictionary 743 (1961).
2 Before the enactment of Chapter 391, N. H. Rev. Stat Ann.
§ 422: 43 levied a $1 service charge for each passenger boarding
a scheduled airline at an airport receiving development funds from
a certain state bond issue authorized in 1957. Section 422:44
imposed a similar fee for nonscheduled commercial planes. No fee
was imposed for any noncommercial aircraft or for commercial
aircraft weighing less than 12,500 pounds. All of the fees collected
were to be used to pay off the 1957 bond issue, and the charge was
to cease once repayment was completed. N. H. Rev. Stat. Am.
§ 422 :45.
Chapter 391 broadened the applicability of the fee for scheduled
airlines to all airports that had received state or local public funds
since 1959, and as to these airlines eliminated the provisions terminating
the fee upon repayment of the 1957 bond issue. The Act
also imposed the 50¢ service charge for boarding of small aircraft
(under 12,500 pounds) operated by scheduled airlines, but retained
the small-plane exemption for nonscheduled airlines.
Chapter 140 of the New Hampshire Laws of 1971, enacted after
the State Supreme Court decision involved here, expanded the
charge imposed on nonscheduled airlines by including all airports
receiving state or local funds after 1959. The legislature did not
EVANSVILLE AIRPORT v. DELTA AIRLINES 711
707 Opinion of the Court
Appellants brought this action in the Superior Court
of Merrimack County, New Hampshire, and challenged
the constitutionality of the charge as to scheduled commercial
flights on the grounds of repugnancy to the Commerce
Clause, the Equal Protection Clause of the Fourteenth
Amendment, and the provisions of the Federal
Constitution protecting the right to travel. The Superior
Court, without decision, transferred the action to
the New Hampshire Supreme Court, and that court
sustained the constitutionality of the statute. 111 N. H.
5, 273 A. 2d 676 ( 1971). We noted probable j urisdiction,
404 U. S. 819 (1971).3 We affirm.
We begin our analysis with consideration of the contention
of the commercial airlines in both cases that the
charge is constitutionally invalid under the Court's decision
in Crandall v. Nevada, 6 Wall. 35 (1868). There
the Court invalidated a Nevada statute that levied a
"tax of one dollar upon every person leaving the State
by any railroad, stage coach, or other vehicle engaged or
employed in the business of transporting passengers for
hire." The Court approached the problem as one of
whether levy of "any tax of that character-," whatever
its amount, impermissibly burdened the constitutionally
protected right of citizens to travel. In holding that
it did, the Court reasoned:
"[I]f the State can tax a railroad passenger one dollar,
it can tax him one thousand dollars. If one State
eliminate the bond-repayment cut-off, as it had for scheduled
airlines, nor did it apply the 50¢ fee to light aircraft operated by
nonscheduled airlines.
3 Courts in Montana and New Jersey have invalidated airport
fees similar to those involved here. Northwest Airlines, Inc. v.
Joint City-County Airport Bd., 154 Mont. 352, 463 P. 2d 470
(1970); Allegheny Airlines, Inc. v. Sills, ll0 N. J. Super. 54, 264
A. 2d 268 ( 1970). In addition, several legislative proposals for
similar taxes have been abandoned on the basis of opinions by state
or local officials arguing their invalidity.
712 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
can do this, so can every other State. And thus one
or more States covering the only practicable routes
of travel from the east to the west, or from the north
to the south, may totally prevent or seriously burden
all transportation of passengers from one part
of the country to the other." Id., at 46.4
The Nevada charge, however, was not limited, as are
the Indiana and New Hampshire charges before us, to
travelers asked to bear a fair share of the costs of providing
public facilities that further travel. The Nevada
tax applied to passengers traveling interstate by privately
owned transportation, such as railroads. Thus the tax
was charged without regard to whether Nevada provided
any facilities for the passengers required to pay the tax.
Cases decided since Crandall have distinguished it on
that ground and have sustained taxes "designed to make
[interstate] commerce bear a fair share of the cost of
the local government whose protection it enjoys." Freeman
v. Hewit, 329 U. S. 249, 253 (1946).5 For example,
in Hendrick v. Maryland, 235 U. S. 610 (1915), a
District of Columbia resident was convicted of driving
in Maryland without paying a fee charged to help defray
the costs of road construction and repair. He challenged
his conviction on the ground that the fee burdened interstate
commerce in violation of the rights of citizens to
travel into and through the State. The Court rejected
that argument, holding that:
"[W] here a State at its own expense furnishes special
facilities for the use of those engaged in comf
Concurring Justices invalidated the tax as repugnant to the
Commerce Clause. 6 Wall., at 49.
5 The State's jurisdiction to tax is, however, limited by the
due process requirement that the "taxing power exerted by the
state [bear] fiscal relation to protection, opportunities and benefits
given by the state." Wisconsin v. J. C. Penney Co., 311 U. S. 435,
444 (1940).
707
EVANSVILLE AIRPORT v. DELTA AIRLINES 713
Opinion of the Court
merce, interstate as well as domestic, it may exact
compensation therefor. The amount of the charges
and the method of collection are primarily for determination
by the State itself; and so long as they are
reasonable and are fixed according to some uniform,
fair and practical standard they constitute no burden
on interstate commerce. Transportation Co. v. Parkersburg,
107 U. S. 691, 699; Huse v. Glover, 119
U.S. 543, 548, 549; Monongahela Navigation Co. v.
United States, 148 U. S. 312, 329, 330; Minnesota
Rate Cases, 230 U. S. 352, 405; and authorities cited.
The action of the State must be treated as correct
unless the contrary is made to appear. In the instant
case there is no evidence concerning the value
of the facilities supplied by the State, the cost of
maintaining them, or the fairness of the methods
adopted for collecting the charges imposed; and we
cannot say from a mere inspection of the statute that
its provisions are arbitrary or unreasonable." Id.,
at 624.
The Court expressly distinguished Crandall, saying:
"There is no solid foundation for the claim that
the statute directly interferes with the rights of citizens
of the United States to pass through the State,
and is consequently bad according to the doctrine
announced in Crandall v. Nevada, 6 Wall. 35. In
that case a direct tax was laid upon the passenger for
the privilege of leaving the State; while here the
statute at most attempts to regulate the operation
of dangerous machines on the highways and to
charge for the use of valuable facilities." Ibid."
6 This distinction has been drawn in other cases. For example,
in striking down a state tax construed as falling "upon the
privilege of carrying on a business that was exclusively interstate in
character," Spector Motor Service, Inc. v. O'Connor, 340 U. S. 602,
il4 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
We therefore regard it as settled that a charge designed
only to make the user of state-provided facilities
pay a reasonable fee to help defray the costs of their
construction and maintenance may constitutionally be
imposed on interstate and domestic users alike. The
principle that burdens on the right to travel are constitutional
only if shown to be necessary to promote a
compelling state interest has no application in this context.
See Shapiro v. Thompson, 394 U. S. 618 (1969).
The facility provided at public expense aids rather than
hinders the right to travel. A permissible charge to
help defray the cost of the facility is therefore not a
burden in the constitutional sense.
The Indiana and New Hampshire Supreme Courts differed
in appraising their respective charges in terms of
whether the charge was for the use of facilities in aid
of travel provided by the public. The Indiana Supreme
Court held that the Evansville charge "is not reasonably
related to the use of the facilities which benefit from
the tax .... " - Ind., at - , 265 N. E. 2d, at 31.
The New Hampshire Supreme Court, on the other hand,
held that the New Hampshire charge was a "fee for
the use of facilities furnished by the public" that did
not "exceed reasonable compensation for the use provided."
111 N. H., at 9, 273 A. 2d, at 678, 679.
In addressing the question, we do not think it particularly
important whether the charge is imposed on
the passenger himself, to be collected by the airline, or
on the airline, to be passed on to the passenger if it
chooses. In either case, it is the act of enplanement
and the consequent use of runways and other airport
facilities that give rise to the obligation. Our inquiry
609 ( 1951) ( emphasis in original), the Court expressly distinguished
it from a tax "levied as compensation for the use of highways."
Id., at 607.
EVANSVILLE AIRPORT v. DELTA AIRLINES 715
i07 Opinion of the Court
is whether the use of airport facilities occasioned by
enplanement is a permissible incident on which to levy
these fees, regardless of whether the airline or its passengers
bear the formal responsibility for their payment.
Our decisions concerning highway tolls are instructive.
They establish that the States are empowered to develop
"uniform, fair and practical" standards for this type of
fee. While the Court has invalidated as wholly unrelated
to road use a toll based on the carrier's seating
capacity, Interstate Transit, Inc. v. Lindsey, 283 U. S.
183 (1931); Sprout v. South Bend, 277 U.S. 163 (1928),
and the amount of gasoline over 20 gallons in the carrier's
gas tank, McCarroll v. Dixie Greyhound Lines,
Inc., 309 U. S. 176 (1940), we have sustained numerous
tolls based on a variety of measures of actual use, including:
horsepower, Hendrick v. Maryland, supra; Kane v.
New Jersey, 242 U. S. 160 (1916); number and capacity
of vehicles, Clark v. Poor, 274 U. S. 554 (1927); mileage
within the State, Interstate Busses Corp. v. Blodgett, 276
U. S. 245 (1928); gross-ton mileage, Continental Baking
Co. v. Woodring, 286 U.S. 352 (1932); carrying capacity,
Hicklin v. Coney, 290 U. S. 169 (1933); and manufacturer's
rated capacity and weight of trailers, Dixie Ohio
Express Co. v. State Revenue Comm'n, 306 U. S. 72
(1939).
We have also held that a State may impose a flat fee
for the privilege of using its roads, without regard to
the actual use by particular vehicles, so long as the
fee is not excessive. Aero Mayflower Transit Co. v.
Georgia Public Service Com.m.'n, 295 U. S. 285 (1935);
Morf v. Bingaman, 298 U. S. 407 (1936); Aero Mayfiower
Transit Co. v. Board of Railroad Com.m'rs, 332
U. S. 495 (1947). And in Capitol Greyhound Lines v.
Brice, 339 U. S. 542 (1950), the Court sustained a
Maryland highway toll of "2% upon the fair market value
716 OCTOBER TERM, 1971
Opinion of the Court 405 u. s.
of motor vehicles used in interstate commerce." That
toll was supplemental to a standard mileage charge imposed
by the State, so that "the total charge as among
carriers [did] vary substantially with the mileage traveled."
Id., at 546. It was there argued, however, that
the correlation between tax and use was not precise
enough to sustain the toll as a valid user charge. Noting
that the tax "should be judged by its result, not its
formula, and must stand unless proven to be unreasonable
in amount for the privilege granted," id., at 545,
the Court rejected the argument:
"Complete fairness would require that a state
tax formula vary with every factor affecting appropriate
compensation for road use. These factors,
like those relevant in considering the constitutionality
of other state taxes, are so countless that we
must be content with 'rough approximation rather
than precision.' Harvester Co. v. Evatt, 329 U. S.
416, 422-423. Each additional factor adds to administrative
burdens of enforcement, which fall
alike on taxpayers and government. We have recognized
that such burdens may be sufficient to justify
states in ignoring even such a key factor as
mileage, although the result may be a tax which
on its face appears to bear with unequal weight
upon different carriers. Aero Transit Co. v. Georgia
Comm.'r,, 295 U. S. 285, 289. Upon this type of
reasoning rests our general rule that taxes like that
of Maryland here are valid unless the amount is
shown to be in excess of fair compensation for the
privilege of using state roads." Id., at 546-547.
Thus, while state or local tolls must reflect a "uniform,
fair and practical standard" relating to public
expenditures, it is the amount of the tax, not its formula,
that is of central concern. At least so long as the toll
is based on some fair approximation of use or privilege
EVANSVILLE AIRPORT v. DELTA AIRLINES 717
707 Opinion of the Court
for use, as was that before us in Capitol Greyhound, and
is neither discriminatory against interstate commerce
nor excessive in comparison with the governmental benefit
conferred, it will pass constitutional muster, even
though some other formula might reflect more exactly
the relative use of the state facilities by individual
users.
The Indiana and New Hampshire charges meet those
standards. First, neither fee discriminates against interstate
commerce and travel. While the vast majority of
passengers who board flights at the airports involved
are traveling interstate, both interstate and intrastate
flights are subject to the same charges. Furthermore,
there is no showing of any inherent difference between
these two classes of flights, such that the application
of the same fee to both would amount to discrimination
against one or the other. See Nippert v. Richmond, 327
U.S. 416 ( 1946).
Second, these charges reflect a fair, if imperfect, approximation
of the use of facilities for whose benefit they
are imposed. We recognize that in imposing a fee on
the boarding of commercial flights, both the Indiana and
New Hampshire measures exempt in whole or part a
majority of the actual number of persons who use facilities
of the airports involved. Their number includes
certain classes of passengers, such as active members of
the military and temporary layovers,7 deplaning commercial
passengers,8 and passengers on noncommercial
:flights,9 nonscheduled commercial flights,1° and commer-
7 Active members of the military and temporary layovers are
not subject to the Indiana tax. The New Hampshire statute on its
face does not distinguish these classes of passengers.
8 Deplaning passengers are not subject to either tax.
9 Private aviators are not subject to either tax.
10 New Hampshire imposes a fee of $1 for nonscheduled flights
on aircraft weighing more than 12,500 pounds, but no fee for
nonscheduled flights on lighter planes; the $1 fee lapses upon repay718
OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
cial flights on light aircraft.11 Also exempt are nonpassenger
users, such as persons delivering or rece1vmg
air-freight shipments, meeting or seeing off passengers,
dining at airport restaurants, and working for employers
located on airport grounds. Nevertheless, these exceptions
are not wholly unreasonable. Certainly passengers
as a class may be distinguished from other airport users,
if only because the boarding of flights requires the use
of runways and navigational facilities not occasioned by
nonflight activities. Furthermore, business users, like
shops, restaurants, and private parking concessions, do
contribute to airport upkeep through rent, a cost that
is passed on in part at least to their patrons. And since
the visitor who merely sees off or meets a passenger
confers a benefit on the passenger himself, his use of the
terminal may reasonably be considered to be included in
the passenger's fee.
The measures before us also reflect rational distinctions
among different classes of passengers and aircraft.
Commercial air traffic requires more elaborate navigation
and terminal facilities, as well as longer and more
costly runway systems, than do flights by smaller private
planes.12 Commercial aviation, therefore, may be made
ment of a bond issue authorized in 1957. See n. 2, supra. The
Indiana ordinance on its face does not distinguish between scheduled
and nonscheduled commercial flights.
11 New Hampshire imposes a 50¢ fee for commercial flights on
light aircraft if scheduled, and no fee if unscheduled. The Indiana
ordinance on its face does not distinguish light from heavy airrraft.
12 The parties in No. 70--99, for example, have stipulated that
"f m]ost of the facilities constituting the Terminal Building at Dress
Memorial Airport would not be essential for the operation of a
noncommercial airport except for the required use thereof by persons
traveling on commercial airlines," that "runway lengths, approach
areas, taxiways and ramp areas of said Dress Memorial Airport
would not be so extensive except for the requirement that the same
be sufficiently extensive in order to accommodate commercial airline
EVANSVILLE AIRPORT v. DELTA AIRLINES 719
707 Opinion of the Court
to bear a larger share of the cost of facilities built primarily
to meet its special needs, whether that additional
charge is levied on a per-flight basis in the form of higher
takeoff and landing fees, or as a toll per passenger-use
in the form of a boarding fee. In short, distinctions
based on aircraft weight or commercial versus private use
do not render these charges wholly irrational as a
measure of the relative use of the facilities for whose
benefit they are levied. Nor does the fact that they are
levied on the enplanement of commercial flights, but not
deplanement. It is not unreasonable to presume that
passengers enplaning at an airport also deplane at the
same airport approximately the same number of times.
The parties in No. 7D-99, for example, have stipulated
that the number of passengers enplaning and deplaning
at Dress Memorial Airport in 1967 was virtually the
same. Thus, a fee levied only on the boarding of commercial
aircraft can reasonably be supposed to cover a
charge on use by passengers when they deplane.13
Third, the airlines have not shown these fees to be
excessive m relation to costs incurred by the taxing
authorities. The record in No. 7D-99 shows that in
carriers and their passengers," and that "Dress Memorial Airport
operates and maintains an instrument lighting system and an
approach lighting system for use by commercial airlines, both of
which are costly to maintain and operate and would not be necessary
in connection with use by private, noncommercial aircraft."
App. 54, 55.
13 Because they do reflect a rational measure of relative use, these
exceptions and exemptions are also consistent with the requirement
of the Equa.J Protection Clause, that "in defining a class subject
to legislation, the distinctions that are drawn have 'some relevance
to the purpose for which the classification is made.' Baxstrom v.
Herold, 383 U.S. 107, 111; Carrington v. Rash, 380 U.S. 89, 93;
Louisville Gas Co. v. Coleman, 277 U.S. 32, 37; Royster Guano Co.
v. Virginia, 253 U. S. 412, 415." Rinaldi v. Yeager, 384 U. S. 305,
309 (1966).
720 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
1965 the Evansville-Vanderburgh Airport Authority paid
bond retirement costs of $166,000 for capital improvements
at Dress Memorial Airport, but recovered only
$9,700 of these costs in the form of airport revenue.
The airport's revenues covered only $63,000 of the
Authority's $184,000 bond costs in 1966, $87,000 of
$182,000 in 1967, and $65,000 of $178,000 in 1968. The
respondents in No. 70--99 have advanced no evidence
that a $1 boarding fee, if permitted to go into effect,
would do more than meet these past, as well as current,
deficits. Appellants in No. 70--212 have likewise failed
to off er proof of excessiveness.
This omission in No. 70--212 suffices to dispose of the
final attack by appellants in that case on the New Hampshire
statute. Appellants argue that the statute "on
its face belies any legislative intent to impose an exaction
based solely on use" because only 50% of its revenue
is allocated to the state aeronautical fund while "the
remaining fifty per cent is allocated to the municipalities
or airport authorities owning the landing areas at which
the fees were imposed in the form of unrestricted general
revenues." Brief 51-52. Yet so long as the funds
received by local authorities under the statute are not
shown to exceed their airport costs, it is immaterial
whether those funds are expressly earmarked for airport
use. The State's choice to reimburse local expenditures
through unrestricted rather than restricted revenues
is not a matter of concern to these appellants. See
Clark v. Poor, 274 U. S., at 557; Morf v. Bingaman,
298 U. S., at 412; Aero Mayflower Transit Co. v. Board
of Railroad Comm'rs, 332 U. S., at 502-505.
We conclude, therefore, that the provisions before
us impose valid charges on the use of airport facilities
constructed and maintained with public funds. Furthermore,
we do not think that they conflict with any
federal policies furthering uniform national regulation
EVANSVILLE AIRPORT v. DELTA AIRLINES 721
707 Opinion of the Court
of air transportation. No federal statute or specific congressional
action or declaration evidences a congressional
purpose to deny or pre-empt state and local power to
levy charges designed to help defray the costs of airport
construction and maintenance. A contrary purpose is
evident in the Airport and Airway Development Act
of 1970, 84 Stat. 219, 49 U. S. C. § 1701 et seq. That
Act provides that as "a condition precedent to his approval
of an airport development project," the Secretary
of Transportation must determine that
"the airport operator or owner will maintain a fee
and rental structure for the facilities and services
being provided the airport users which will make
the airport as self-sustaining as possible under the
circumstances existing at that particular airport,
taking into account such factors as the volume of
traffic and economy of collection." 49 U. S. C.
§ 1718 (8).
The commercial airlines argue in these cases that a
proliferation of these charges in airports over the country
will eventually follow in the wake of a decision sustaining
the validity of the Indiana and New Hampshire
fees, and that this is itself sufficient reason to adjudge
the charges repugnant to the Commerce Clause. "If
such levies were imposed by each airport along a traveller's
route, the total effect on the cost of air transportation
could be prohibitive, the competitive structure of air
carriers could be affected, and air transportation, compared
to other forms of transportation, could be seriously
impaired." Brief for Appellants in No. 70--212, p. 44.
The argument relies on Bibb v. Navajo Freight Lines,
Inc., 359 U. S. 520 (1959). There the Court invalidated
an Illinois statute requiring that trucks and
trailers using Illinois highways be equipped at the
state line with a contour mudguard of specified design.
722 OCTOBER TERM, 1971
DoUGLAS, J., dissenting 405 U.S.
The lower courts had found that the contour mudguard
possessed no advantages in terms of safety over the conventional
flap permitted in all other States and indeed
created safety hazards. But there is no suggestion that
the Indiana and New Hampshire charges do not in fact
advance the constitutionally permissible objective of
having interstate commerce bear a fair share of the costs
to the States of airports constructed and maintained for
the purpose of aiding interstate air travel. In that circumstance,
"[a] t least until Congress chooses to enact
a nation-wide rule, the power will not be denied to the
State[s] ." Freeman v. Hewit, 329 U.S., at 253; see also
Southern Pacific Co. v. Arizona, 325 U. S. 761, 775-776
(1945).
The judgment in No. 70-99 is reversed; the judgment
in No. 70-212 is affirmed.
It is so ordered.
MR. JUSTICE PowELL took no part in the consideration
or decision of these cases.
MR. JUSTICE DOUGLAS, dissenting.
These cases are governed by Crandall v. Nevada, 6
Wall. 35, which must be overruled if we are to sustain the
instant taxes.
One case involves an Indiana tax of $1 on every
enplaning commercial airline passenger at the Evansville
Airport. The other involves a New Hampshire
$1 tax on every passenger enplaning a scheduled commercial
aircraft with a gross weight of 12,500 pounds or
more and a 50¢ tax on every passenger enplaning such
aircraft with a gross weight of less than 12,500 pounds.
The carriers are made responsible for paying, accounting
for, and remitting the fee to the local authority.
Crandall v. Nevada, decided before the Fourteenth
Amendment, struck down a state law which levied a
'
EVANSVILLE AIRPORT v. DELTA AIRLINES 723
707 DouGLAS, J., dissenting
$1 tax on every person leaving the State by rail, stage
coach, or other common carrier. Mr. Justice Miller,
speaking for the Court, said the citizen had rights which
the tax abridged:
"He has a right to free access to its sea-ports, through
which all the operations of foreign trade and commerce
are conducted, to the sub-treasuries, the land
offices, the revenue offices, and the courts of justice
in the several States, and this right is in its nature
independent of the will of any State over whose soil
he must pass in the exercise of it." Id., at 44.
And he quoted with approval from the dissenting opinion
in the Passenger Cases, 7 How. 283, 492:
" 'For all the great purposes for which the Federal
government was formed we are one people, with one
common country. We are all citizens of the United
States, and as members of the same community must
have the right to pass and repass through every part
of it without interruption, as freely as in our own
States. And a tax imposed by a State, for entering
its territories or harbors, is inconsistent with the
rights which belong to citizens of other States as
members of the Union, and with the objects which
that Union was intended to attain. Such a power
in the States could produce nothing but discord and
mutual irritation, and they very clearly do not possess
it.' " 6 Wall., at 4&---49.
Usually the right to travel has been founded on the
Commerce Clause.1 See United States v. Guest, 383 U.S.
745, 758-759. Some, including myself, have thought the
right to travel was a privilege and immunity of national
1 Helson & Randolph v. Kentucky, 279 U.S. 245,251; Phil,adelphia
& Southern S.S. Co. v. Pennsylvania, 122 U.S. 326, 339; Colgate v.
Ha.rvey, 296 U. S. 4-04, 443-444 (Stone, J., dissenting); Bowman v.
Chicago & Northwestern R. Co., 125 U. S. 465, 480--481.
724 OCTOBER TERM, 1971
DouGus, J., dissenting 405 u. s.
citizenship.2 Edwards v. California, 314 U. S. 160, 177
(DouGLAS, J., concurring). Whatever the source, the
right exists.3 See Graham v. Richardson, 403 U. S. 365;
2 Oregon v. Mitchell, 400 U. S. 112, 285 (STEWART, J., concurring
and dissenting); Bell v. Maryland, 378 U. S. 226, 250, 255 (separate
opinion of DouGLAs, J.), 293-294, n. 10 (Goldberg, J., concurring);
New York v. O'Neill, 359 U. S. 1, 12 (DOUGLAS, J., dissenting);
Kent v. Dulles, 357 U. S. 116, 125-127; Edwards v. California, 314
U. S. 160, 177 (DOUGLAS, J., concurring), 181 (Jackson, J., concurring);
Gilbert v. Minnesota, 254 U. S. 325, 337 (Brandeis, J., dissenting);
Twining v. New Jersey, 211 U.S. 78, 97; Cook v. Pennsylvania,
97 U. S. 566; United States v. Wheeler, 254 U. S. 281; Colgate v.
Harvey, 296 U.S., at 429-430; Slaughter-House Cases, 16 Wall. 36,
79.
3 Only the other day in Dunn v. Blumstein, ante, p. 330, we held a
durational residence requirement that was a prerequisite to voting
invalid because it "directly impinges on the exercise of a ...
fundamental personal right, the right to travel." And we cited a
host of "right to travel" cases including United States v. Guest,
383 U. S. 745, 758; Passenger Cases, 7 How. 283, 492 (Taney, C. J.,
dissenting); Crandall v. Nevada, 6 Wall. 35; Paul v. Virginia, 8 Wall.
168, 180; Edwards v. California, supra; Kent v. Dulles, 357 U. S.,
at 126; Shapiro v. Thompson, 394 U.S. 618, 629-631, 634; Oregon
v. Mitchell, 400 U. S., at 237 (separate opinion of BRENNAN,
WHITE, and MARSHALL, JJ.), 285-286 (STEWART, J., concurring and
dissenting).
In answer to the argument that actual deterrence of travel
need not be shown we said: "It is irrelevant whether disenfranchisement
or denial of welfare is the more potent deterrent to travel.
Shapiro did not rest upon a finding that denial of welfare actually
deterred travel. Nor have other 'right to travel' cases in this
Court always relied on the presence of actual deterrence. In
Shapiro we explicitly stated that the compelling state interest test
would be triggered by 'any classification which served to penalize
the exercise of that right [to travel] .... ' [394 U.S.], at 634 (emphasis
added); see id.1 at 638 n. 21. While noting the frank legislative
purpose to deter migration by the poor, and speculating that 'an
indigent who desires to migrate ... will doubtless hesitate if he
knows that he must risk' the loss of benefits, id., at 628-629, the
majority found no need to dispute the 'evidence that few welfare
recipients have in fact been deterred [from moving] by residenre
EVANSVILLE AIRPORT v. DELTA AIRLINES 725
707 DouGLAS, J., dissenting
Griffin v. Breckenridge, 403 U. S. 88, 105-106; Oregon v.
Mitchell, 400 U. S. 112, 237-238 (separate opinion of
BRENNAN, WHITE, and MARSHALL, JJ.); Shapiro v.
Thompson, 394 U. S. 618, 630--631; United States v.
Guest, 383 U. S., at 757-758.
Heretofore, we have held that a tax imposed on a carrier
but measured by the number of passengers is no different
from a direct exaction upon the passengers themselves,
whether or not the carrier is authorized to collect
the tax from the passengers. Pickard v. Pullman Southern
Car Co., 117 U. S. 34, 46; State Freight Tax Case,
15 Wall. 232, 281. To be sure, getting onto a plane
is an intrastate act. But a tax imposed on a local
activity that is related to interstate commerce is valid
only if the local activity is not such an integral part of
interstate commerce that it cannot be realistically separated
from it.4 Michigan-Wisconsin Pipe Line Co. v.
requirements.' Id., at 650 (Warren, C. J., dissenting); see also
id., at 671-672 (Harlan, J ., dissenting). Indeed, none of the litigants
had themselves been deterred." Ante, at 339-340.
'In Hel,son & Randolph v. Kentucky, 279 U. S. 245, for example,
we considered a tax imposed by the State of Kentucky upon the
use, within its borders, of gasoline by interstate carriers. We determined
that such a tax was a direct burden on an instrumentality
of interstate commerce and therefore struck it down. We said:
"The tax is exacted as the price of the privilege of using an instrumentality
of interstate commerce. It reasonably cannot be distinguished
from a tax for using a locomotive or a car employed in
such commerce. A tax laid upon the use of the ferry boat, would
present an exact parallel. And is not the fuel consumed in propelling
the boat an instrumentality of commerce no less than the
boat itself? A tax, which falls directly upon the use of one of the
means by which commerce is carried on, directly burdens that
commerce. If a tax cannot be laid by a state upon the interstate
transportation of the subjects of commerce, as this Court definitely
has held, it is little more than repetition to say that such a. tax
cannot be laid upon the use of a medium by which such transportation
is effected. 'All restraints by exactions in the form of taxes
726 OCTOBER TERM, 1971
DouGLAS, J., dissenting 405 u. s.
Calvert, 347 U. S. 157, 166. In that case the tax struck
down was the tax on gas that had been processed for
interstate use-and a tax "on the exit of the gas from
the State." Id., at 167. We held that that exit was "a
part of interstate commerce itself." Id., at 168.
The same is true here, for the step of the passenger
enplaning the aircraft is but an instant away from
and an inseparable part of an interstate flight.
Of course interstate commerce can be made to pay its
fair share of the cost of the local government whose
protection it enjoys. But though a local resident can
be made to pay taxes to support his community, he
cannot be required to pay a fee for making a speech
or exercising any other First Amendment right. Like
prohibitions obtain when licensing is exacted for exercising
constitutional rights. Lovell v. Griffin, 303 U. S.
444, 451-452; Thomas v. Collins, 323 U. S. 516, 540-541;
Harman v. Forssenius, 380 U. S. 528, 542. Heretofore
we have treated the right to participate in interstate
commerce in precisely the same way on the theory
that the "power to tax the exercise of a privilege is the
power to control or suppress its enjoyment." Murdock
v. Pennsylvania, 319 U. S. 105, 112. I adhere to that
view; federal constitutional rights should neither be
"chilled" nor "suffocated."
Are we now to ru,sume that Calvert and Murdock are
no longer the law?
I would affirm the Indiana judgment and reverse New
Hampshire's.
upon rnch transportation, or upon acts necessary to its completion,
are so many invasions of the exclusive power of Congress to regulate
that portion of commerce between the States.'" Id., at 252.
SIERRA CLUB v. MORTON
Syllabus
727
SIERRA CLUB v. MORTON, SECRETARY OF THE
INTERIOR, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 70-34. Argued November 17, 1971-Decided April 19, 1972
Petitioner, a membership corporation with "a special interest in the
conservation and sound maintenance of the national parks, game
refuges, and forests of the country," brought this suit for a declaratory
judgment and an injunction to restrain federal officials from
approving an extensive skiing development in the Mineral King
Valley in the Sequoia National Forest. Petitioner relies on § 10
of the Administrative Procedure Act, which accords judicial review
to a "person suffering legal wrong because of agency action,
or [who is] adversely affected or aggrieved by agency action
within the meaning of a relevant statute." On the theory that
this was a "public" action involving questions as to the use of
natural resources, petitioner did not allege that the challenged
development would affect the club or its members in their activities
or that they used Mineral King, but maintained that the
project would adversely change the area's aesthetics and ecology.
The District Court granted a preliminary injunction. The Court
of Appeals reversed, holding that the club lacked standing, and
had not shown irreparable injury. Held: A person has standing
to seek judicial review under the Administrative Procedure Act
only if he can show that he himself has suffered or will suffer
injury, whether economic or otherwise. In this case, where petitioner
asserted no individualized harm to itself or its members,
it lacked standing to maintain the action. Pp. 731-741.
433 F. 2d 24, affirmed.
STEWART, J., delivered the opm1on of the Court, in which
BURGER, C. J., and WHITE and MARSHALL, JJ., joined. DouGLAS, J.,
post, p. 741, BRENNAN, J., post, p. 755, and BLACKMUN, J., post,
p. 755, filed dissenting opinions. POWELL and REHNQUIST, JJ., took
no part in the consideration or decision of the case.
Leland R. Selna, Jr., argued the cause for petitioner.
With him on the briefs was Matthew P. Mitchell.
728 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
Solicitor General Griswold argued the cause for respondents.
With him on the brief were Assistant Attorney
General Kashiwa, Deputy Assistant Attorney
General Kiechel, William Terry Bray, Edmund B. Clark,
and Jacques B. Gelin.
Briefs of amici c11,riae urging reversal were filed by
Anthony A. Lapham and Edwar,d Lee Rogers for the
Environmental Defense Fund; by George J. Alexander
and Marcel B. Poche for the National Environmental
Law Society; and by Bruce J. Terris and James W.
Moorman for the Wilderness Society et al.
Briefs of amici curiae urging affirmance were filed by
E. Lewis Reid and Calvin E. Baldwin for the County
of Tulare; by Robert C. Keck for the American National
Cattlemen's Assn. et al.; and by Donald R. Allen for the
Far West Ski Assn. et al.
MR. JUSTICE STEWART delivered the opinion of the
Court.
I
The Mineral King Valley is an area of great natural
beauty nestled in the Sierra Nevada Mountains in Tulare
County, California, adjacent to Sequoia National Park.
It has been part of the Sequoia National Forest since
1926, and is designated as a national game refuge
by special Act of Congress.1 Though once the site of
extensive mining activity, Mineral King is now used
almost exclusively for recreational purposes. Its relative
inaccessibility and lack of development have limited
the number of visitors each year, and at the same
time have preserved the valley's quality as a quasiwilderness
area largely uncluttered by the products of
civilization.
1 Act of July 3, 1926, § 6, 44 Stat. 821, 16 U. S. C. § 688.
SIERRA CLUB v. MORTON 729
727 Opinion of the Court
The United States Forest Service, which is entrusted
with the maintenance and administration of national
forests, began in the late 1940's to give consideration
to Mineral King as a potential site for recreational development.
Prodded by a rapidly increasing demand
for skiing facilities, the Forest Service published a prospectus
in 1965, inviting bids from private developers
for the construction and operation of a ski resort that
would also serve as a summer recreation area. The
proposal of Walt Disney Enterprises, Inc., was chosen
from those of six bidders, and Disney received a threeyear
permit to conduct surveys and explorations in the
valley in connection with its preparation of a complete
master plan for the resort.
The final Disney plan, approved by the Forest Service
in January 1969, outlines a $35, million complex
of motels, restaurants, swimming pools, parking lots,
and other structures designed to accommodate 14,000
visitors daily. This complex is to be constructed on
80 acres of the valley floor under a 30-year use permit
from the Forest Service. Other facilities, including ski
lifts, ski trails, a cog-assisted railway, and utility installations,
are to be constructed on the mountain slopes
and in other parts of the valley under a revocable specialuse
permit. To provide access to the resort, the State
of California proposes to construct a highway 20 miles
in length. A section of this road would traverse Sequoia
National Park, as would a proposed high-voltage power
line needed to provide electricity for the resort. Both
the highway and the power line require the approval
of the Department of the Interior, which is entrusted
with the preservation and maintenance of the national
parks.
Representatives of the Sierra Club, who favor maintaining
Mineral King largely in its present state, followed
the progress of recreational planning for the valley
730 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
with close attention and increasing dismay. They unsuccessfully
sought a public hearing on the proposed
development in 1965, and in subsequent correspondence
with officials of the Forest Service and the Department
of the Interior, they expressed the Club's objections to
Disney's plan as a whole and to particular features included
in it. In June 1969 the Club filed the present
suit in the United States District Court for the Northern
District of California, seeking a declaratory judgment
that various aspects of the proposed development contravene
federal laws and regulations governing the preservation
of national parks, forests, and game refuges,2 and also
seeking preliminary and permanent injunctions restraining
the federal officials involved from granting their
approval or issuing permits in connection with the Mineral
King project. The petitioner Sierra Club sued as
a membership corporation with "a special interest in
the conservation and the sound maintenance of the national
parks, game refuges and forests of the country,"
and invoked the judicial-review provisions of the Administrative
Procedure Act, 5 U. S. C. § 701 et seq.
2 As analyzed by the District Court, the complaint alleged violations
of law falling into four categories. First, it claimed that the
special-use permit for construction of the resort exceeded the maximum-
acreage limitation placed upon such permits by 16 U. S. C.
§ 497, and that issuance of a "revocable" use permit was beyond
the authority of the Forest Service. Second, it challenged the proposed
permit for the highway through Sequoia National Park on the
grounds that the highway would not serve any of the purposes of
the park, in alleged violation of 16 U. S. C. § 1, and that it would
destroy timber and other natural resources protected by 16 U. S. C.
§§ 41 and 43. Third, it claimed that the Forest Service and the
Department of the Interior had violated their own regulations by
failing to hold adequate public hearings on the proposed project.
Finally, the complaint asserted that 16 U. S. C. § 45c requires
specific congressional authorization of a permit for construction of
a power transmission line within the limits of a national park.
SIERRA CLUB v. MORTON 731
727 Opinion of t.he Court
After two days of hearings, the District Court granted
the requested preliminary injunction. It rejected the
respondents' challenge to the Sierra Club's standing to
sue, and determined that the hearing had raised questions
"concerning possible excess of statutory authority,
sufficiently substantial and serious to justify a preliminary
injunction .... " The respondents appealed, and
the Court of Appeals for the Ninth Circuit reversed.
433 F. 2d 24. With respect to the petitioner's standing,
the court noted that there was "no allegation in
the complaint that members of the Sierra Club would
be affected by the actions of [ the respondents] other
than the fact that the actions are personally displeasing
or distasteful to them," id., at 33, and concluded:
"We do not believe such club concern without a
showing of more direct interest can constitute
standing in the legal sense sufficient to challenge
the exercise of responsibilities on behalf of all the
citizens by two cabinet level officials of the government
acting under Congressional and Constitutional
authority." Id., at 30.
Alternatively, the Court of Appeals held that the Sierra
Club had not made an adequate showing of irreparable
injury and likelihood of success on the merits to justify
issuance of a preliminary injunction. The court
thus vacated the injunction. The Sierra Club filed a
petition for a writ of certiorari which we granted, 401
U. S. 907, to review the questions of federal law
presented.
II
The first question presented is whether the Sierra
Club has alleged facts that entitle it to obtain judicial
review of the challenged action. Whether a party has
a sufficient stake in an otherwise justiciable controversy
to obtain judicial resolution of that controversy is what
732 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
has traditionally been referred to as the question of
standing to sue. Where the party does not rely on any
specific statute authorizing invocation of the judicial
process, the question of standing depends upon whether
the party has alleged such a "personal stake in the outcome
of the controversy," Baker v. Carr, 369 U. S. 186,
204, as to ensure that "the dispute sought to be adjudicated
will be presented in an adversary context and
in a form historically viewed as capable of judicial
resolution." Flast v. Cohen, 392 U. S. 83, 101. Where,
however, Congress has authorized public officials to perform
certain functions according to law, and has provided
by statute for judicial review of those actions
under certain circumstances, the inquiry as to standing
must begin with a determination of whether the statute
in question authorizes review at the behest of the
plain tiff. 3
The Sierra Club relies upon § 10 of the Administrative
Procedure Act (APA), 5 U. S. C. § 702, which
provides:
"A person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency
3 Congress may not confer jurisdiction on Art. III federal courts
to render advisory opinions, Muskrat v. United States, 219 U. S.
346, or to entertain "friendly" suits, United States v. Johnson, 319
U. S. 302, or to resolve "political questions," Luther v. Borden, 7
How. 1, because suits of this character are inconsistent with the
judicial function under Art. III. But where a dispute is otherwise
justiciable, the question whether the litigant is a "proper party to
request an adjudication of a particular issue," Fla.st v. Cohen, 392
U.S. 83, 100, is one within the power of Congress to determine. Cf.
FCC v. Sanders Bros. Radio Station, 309 U. S. 470, 477; Fla.st v.
Cohen, supra, at 120 (Harlan, J., dissenting); Associated Industries
v. Ickes, 134 F. 2d 694, 704. See generally Berger, Standing
to Sue in Public Actions: Is it a Constitutional Requirement?, 78
Yale L. J. 816, 837 et seq. (1969); Jaffe, The Citizen as Litigant in
Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116
U. Pa. L. Rev. 1033 (1968).
727
SIERRA CLUB v. MORTON 733
Opinion of the Court
action within the meaning of a relevant statute, is
entitled to judicial review thereof."
Early decisions under this statute interpreted the language
as adopting the various formulations of "legal
interest" and "legal wrong" then prevailing as constitutional
requirements of sta.nding.4 But, in Data Processing
Service v. Camp, 397 U. S. 150, and Barlow v. Collins,
397 U. S. 159, decided the same day, we held more
broadly that persons had standing to obtain judicial review
of federal agency action under § 10 of the AP A
where they had alleged that the challenged action had
caused them "injury in fact," and where the alleged
injury was to an interest "arguably within the zone of
interests to be protected or regulated" by the statutes
that· the agencies were claimed to have violated.5
In Data Processing, the injury claimed by the petitioners
consisted of harm to their competitive position
in the computer-servicing market through a ruling by
the Comptroller of the Currency that national banks
might perform data-processing services for their customers.
In Barlow, the petitioners were tenant farmers
who claimed that certain regulations of the Secretary
of Agriculture adversely affected their economic position
vis-a-vis their landlords. These palpable economic injuries
have long been recognized as sufficient to lay the
basis for standing, with or without a specific statutory
'See, e. g., Kansas City Power & Light Co. v. McKay, 96 U. S.
App. D. C. 273, 281, 225 F. 2d 924,932; Ove Gmtavsson Contracting
Co. v. Floete, 278 F. 2d 912, 914; Duba v. Schuetzle, 303 F. 2d 570,
574. The theory of a "legal interest" is expressed in its extreme form
in Alabama Power Co. v. Ickes, 302 U. S. 464, 479-481. See also
Tennessee Electric Power Co. v. TV A, 306 U. S. 118, 137-139.
5 In deciding this case we do not reach any questions concerning
the meaning of the "zone of interests" test or its possible application
to the facts here presented.
734 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
provision for judicial review.6 Thus, neither Data Processi-
ng nor Barlow addressed itself to the question, which
has arisen with increasing frequency in federal courts
in recent years, as to what must be alleged by persons
who claim injury of a noneconomic nature to interests
that are widely shared.7 That question is presented
in this case.
III
The injury alleged by the Sierra Club will be incurred
entirely by reason of the change in the uses to
which Mineral King will be put, and the attendant
change in the_a esthetics and ecology of the area. Thus,
in referring to the road to be built through Sequoia
National Park, the complaint alleged that the development
"would destroy or otherwise adversely affect the
scenery, natural and historic objects and wildlife of the
park and would impair the enjoyment of the park for future
generations." We do not question that this type of
harm may amount to an "injury in fact" sufficient to
lay the basis for standing under § 10 of the AP A.
Aesthetic and environmental well-being, like economic
well-being, are important ingredients of the quality of
life in our society, and the fact that particular environmental
interests are shared by the many rather than
the few does not make them less deserving of legal
protection through the judicial process. But the "injury
in fact" test requires more than an injury to a cognizable
6 See, e. g., Hardin v. Kentucky Utilities Co., 390 U. S. 1, 7; Chicago
v. Atchison, T. & S. F. R. Co., 357 U. S. 77, 83; FCC v. Sanders
Bros. Radio Station, supra, at 477.
7 No question of standing was raised in Citizens to Preserve Overton
Park v. Volpe, 401 U. S. 402. The complaint in that case
alleged that the organizational plaintiff represented members who
were ''residents of Memphis, Tennessee who use Overton Park as a
park land and recreation area and who have been active since 1964
in efforts to preserve and protect Overton Park as a park land and
recreation area."
SIERRA CLUB v. MORTON 735
727 Opinion of the Court
interest. It requires that the party seeking review be
himself among the injured.
The impact of the proposed changes in the environment
of Mineral King will not fall indiscriminately
upon every citizen. The alleged injury will be felt
directly only by those who use Mineral King and Sequoia
National Park, and for whom the aesthetic and recreational
values of the area will be lessened by the highway
and ski resort. The Sierra Club failed to allege
that it or its members would be affected in any of their
. activities or pastimes by the Disney development. Nowhere
in the pleadings or affidavits did the Club state
that its members use Mineral King for any purpose,
much less that they use it in any way that would be
significantly affected by the proposed actions of the
respondents. 8
8 The only reference in the pleadings to the Sierra Club's interest
in the dispute is contained in paragraph 3 of the complaint, which
reads in its entirety as follows:
"Plaintiff Sierra Club is a non-profit corporation organized and
operating under the laws of the State of California, with its principal
place of business in San Francisco, California since 1892. Membership
of the club is approximately 78,000 nationally, with approximately
27,000 members residing in the San Francisco Bay Area. For
many years the Sierra Club by its activities and conduct has exhibited
a special interest in the conservation and the sound maintenance of the
national parks, game refuges and forests of the country, regularly
serving as a responsible representative of persons similarly interested.
One of the principal purposes of the Sierra Club is to protect and
conserve the national resources of the Sierra Nevada Mountains. Its
interests would be vitally affected by the acts hereinafter described
and would be aggrieved by those acts of the defendants as hereinafter
more fully appears."
In an amici curiae brief filed in this Court by the Wilderness Society
and others, it is asserted that the Sierra Club has conducted regular
camping trips into the Mineral King area, and that various members
of the Club have used and continue to use the area for
recreational purposes. These allegations were not contained in
the pleadings, nor were they brought to the attention of the Court
736 OCTOBER TERM, 1971
Opinion of the Court. 405 U.S.
The Club apparently regarded any allegations of individualized
injury as superfluous, on the theory that
this was a "public" action involving questions as to the
use of natural resources, and that the Club's longstanding
concern with and expertise in such matters were
sufficient to give it standing as a "representative of the
public." " This theory reflects a misunderstanding of
our cases involving so-called "public actions" in the
area of administrative law.
The origin of the theory advanced by the Sierra Club
may be traced to a dictum in Scripps-Haward Radio
v. FCC, 316 U. S. 4, in which the licensee of a
radio station in Cincinnati, Ohio, sought a stay of an
order of the FCC allowing another radio station in a
nearby city to change its frequency and increase its
range. In discussing its power to grant a stay, the
Court noted that "these private litigants have standing
only as representatives of the public interest." Id., at
14. But that observation did not describe the basis
upon which the appellant was allowed to obtain judicial
review as a "person aggrieved" within the meaning
of the statute involved in that case,1° since Scrippsof
Appeals. Moreover, the Sierra Club in its reply brief specifically
declines to rely on its individualized interest, as a basis for standing.
See n. 15, infra. Our decision does not, of course, bar the Sierra
Club from seeking in the District Court. to amend its complaint by
a motion under Rule 15, Federal Rules of Civil Procedure.
9 This approach to the question of standing was adopted by the
Court of Appeals for the Second Circuit in Citizens Committee for
the Hudson Valley v. Volpe, 425 F. 2d 97, 105:
"We hold, therefore, that the public interest in environmental resources-
an interest created by statutes affecting the issuance of
this permit-is a legally protected interest affording these plaintiffs,
as responsible representatives of the public, standing to obtain
judicial review of agency action alleged to be in contravention of
that public interest."
10 The statute involved was § 402 (b) (2) of the Communications
Act of 1934, 48 Stat. 1093.
'
SIERRA CLUB v. MORTON 737
727 Opinion of the Court
Howard was clearly "aggrieved" by reason of the economic
injury that it would suffer as a result of the
Commission's action.11 The Court's statement was,
rather, directed to the theory upon which Congress had
authorized judicial review of the Commission's actions.
That theory had been described earlier in FCC v. Sanders
Bros. Radio Station, 309 U. S. 470, 477, as follows:
"Congress had some purpose in enacting § 402
(b) (2). It may have been of opinion that
one likely to be financially injured by the issue of
a license would be the only person having a sufficient
interest to bring to the attention of the appellate
court errors of law in the action of the
Commission in granting the license. It is within
the power of Congress to confer such standing to
prosecute an appeal."
Taken together, Sanders and Scripps-Howard thus
established a dual proposition: the fact of economic
injury is what gives a person standing to seek judicial
review under the statute, but once review is properly
invoked, that person may argue the public interest in
support of his claim that the agency has failed to
comply with its statutory mandate.12 It was in the
latter sense that the "standing" of the appellant in
Scripps-Haward existed only as a "representative of
the public interest." It is in a similar sense that we
have used the phrase "private attorney general" to
11 This much is clear from the Scripps-Howard Court's citation
of FCC v. Sanders Bros. Radio Station, 309 U. S. 470, in which
the basis for standing was the competitive injury that the appellee
would have suffered by the licensing of another radio station in
its listening area.
12 The distinction between standing to initiate a review proceeding,
and standing to assert the rights of the public or of third
persons once the proceeding is properly initiated, is discussed m
3 K. Davis, Adminstrative Law Treatise §§ 22.05-22.07 (1958).
738 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
describe the function performed by persons upon whom
Congress has conferred the right to seek judicial review
of agency action. See Data Processing, supra,
at 154.
The trend of cases arising under the AP A and other
statutes authorizing judicial review of federal agency
action has been toward recognizing that injuries other
than economic harm are sufficient to bring a person
within the meaning of the statutory language, and toward
discarding the notion that an injury that is
widely shared is ipso facto not an injury sufficient to
provide the basis for judicial review.13 We noted this
development with approval in Data Processing, 397 U.S.,
at 154, in saying that the interest alleged to have been
injured "may reflect 'aesthetic, conservational, and recreational'
as well as economic values." But broadening
the categories of injury that may be alleged in support
of standing is a different matter from abandoning
the requirement that the party seeking review must
himself have suffered an injury.
Some courts have indicated a willingness to take
this latter step by conferring standing upon organiza-
13 See, e. g., Environmental, Defense Fund v. Hardin, 138 U. S.
App. D. C. 391, 395, 428 F. 2d 1093, 1097 (interest in health affected
by decision of Secretary of Agriculture refusing to suspend registration
of certain pesticides containing DDT); Office of Communication
of the United Church of Christ v. FCC, 123 U. S. App. D. C. 328,
339, 359 F. 2d 994, 1005 (interest of television viewers in the
programing of a local station licensed by the FCC); Scenic Hudson
Preservation Conj. v. FPC, 354 F. 2d 608, 615--616 (interests in
aesthetics, recreation, and orderly community planning affected
by FPC licensing of a hydroelectric project); Reade v. Ewing,
205 F. 2d 630, 631----032 (interest of consumers of oleomargarine
in fair labeling of product regulated by Federal Security Aclministration);
Crowther v. Seaborg, 312 F. Supp. 1205, 1212 (interest
in health and safety of persons residing near the site of a proposed
atomic blast).
SIERRA CLUB v. MORTON 739
727 Opinion of the Court
tions that have demonstrated "an organizational interest
in the problem" of environmental or consumer protection.
Environmental Defense Fund v. Hardin, 138
U. S. App. D. C. 391, 395, 428 F. 2d 1093, 1097.14
It is clear that an organization whose members
are injured may represent those members in a proceeding
for judicial review. See, e. g., NAACP v.
Button, 371 U. S. 415, 428. But a mere "interest in a
problem," no matter how longstanding the interest and
no matter how qualified the organization is in evaluating
the problem, is not sufficient by itself to render the
organization "adversely affected" or "aggrieved" within
the meaning of the AP A. The Sierra Club is a large
and long-established organization, with a historic commitment
to the cause of protecting our Nation's natural
heritage from man's depredations. But if a "special interest"
in this subject were enough to entitle the Sierra
Club to commence this litigation, there would appear to
be no objective basis upon which to disallow a suit by
any other bona fide "special interest" organization, however
small or short-lived. And if any group with a bona
fide "special interest" could initiate such litigation, it is
difficult to perceive why any individual citizen with the
14 See Citizens Committee for the Hudson Valley v. Volpe, n. 9,
supra; Environmental Defense Fund, Inc. v. Corps of Engineers,
325 F. Supp. 728, 734-736; Izaak Walton League v. St. Clair, 313
F. Supp. 1312, 1317. See also Scenic Hudson Preservation Conj. v.
FPC, supra, at 616:
"In order to insure that the Federal Power Commission will adequately
protect the public interest in the aesthetic, conservational,
and recreational aspects of power development, those who by their
activities and conduct have exhibited a special interest in such
areas, must be held to be included in the class of 'aggrieved' parties
under § 313 (b) [of the Federal Power Act]."
In most, if not all, of these cases, at least one party to the proceeding
did assert an individualized injury either to himself or, in
the case of an organization, to its members.
740 OCTOBER TERM, 1971
Opinion of the Court 405 U.S.
same bona fide special interest would not also be entitled
to do so.
The requirement that a party seeking review must
allege facts showing that he is himself adversely affected
does not insulate executive action from judicial
review, nor does it prevent any public interests from
being protected through the judicial process.15 It does
serve as at least a rough attempt to put the decision
as to whether review will be sought in the hands of
those who have a direct stake in the outcome. That
goal would be undermined were we to construe the
AP A to authorize· judicial review at the behest of organizations
or individuals who seek to do no more than
vindicate their own value preferences through the judicial
process.10 The principle that the Sierra Club
would have us establish in this case would do just that.
15 In its reply brief, after noting the fact that it might have
chosen to assert individualized injury to itself or to its members as
a basis for standing, the Sierra Club states:
"The Government seeks to create a 'heads I win, tails you lose'
situation in which either the courthouse door is barred for lack of
assertion of a private, unique injury or a preliminary injunction is
denied on the ground that the litigant has advanced private injury
which does not warrant an injunction adverse to a competing public
interest. Counsel have shaped their case to avoid this trap."
The short answer to this contention is that the "trap" does not
exist. The test of injury in fact goes only to the question of standing
to obtain judicial review. Once this standing is established,
the party may assert the interests of the general public in support
of his claims for equitable relief. See n. 12 and accompanying
text, supra.
16 Every schoolboy may be familiar with Alexis de Tocqueville's
famous observation, written in the 1830's, that "[s]carcely any political
question arises in the United States that is not resolved,
sooner or later, into a judicial question." 1 Democracy in America
280 ( 1945). Less familiar, however, is De Tocqueville's further
observation that judicial review is effective largely because it is not
SIERRA CLUB v. MORTON 741
727 DouGLAS, J., dissenting
As we conclude that the Court of Appeals was correct
in its holding that the Sierra Club lacked standing
to maintain this action, we do not reach any other
questions presented in the petition, and we intimate no
view on the merits of the complaint. The judgment is
Affirmed.
MR. JusTICE PowELL and MR. JusTICE REHNQUIST
took no part in the consideration or decision of this case.
MR. JusTICE DouaLAs, dissenting.
I share the views of my Brother BLACKMUN and would
reverse the judgment below.
The critical question of "standing" 1 would be simplified
and also put neatly in focus if we fashioned a federal
rule that allowed environmental issues to be litigated
before federal agencies or federal courts in the name of
the inanimate object about to be despoiled, defaced, or
invaded by roads and bulldozers and where injury is the
subject of public outrage. Contemporary public conavailable
simply at the behest of a partisan faction, but is exercised
only to remedy a particular, concrete injury.
"It will be seen, also, that by leaving it to private interest to
censure the law, and by intimately uniting the trial of the law with
the trial of an individual, legislation is protected from wanton
assaults and from the daily aggressions of party spirit. The errors
of the legislator are exposed only to meet a real want; and it is
always a positive and appreciable fact that must serve as the basis
of a prosecution." Id., at 102.
1 See generally Data Processing Service v. Camp, 397 U. S. 150
(1970); Barlow v. Collins, 397 U. S. 159 (1970); Flmt v. Cohen,
392 U. S. 83 (1968). See also MR. JUSTICE BRENNAN'S separate
opinion in Barlow v. Collins, supra, at 167. The issue of statutory
standing aside, no doubt exists that "injury in fact" to "aesthetic"
and "conservational" interests is here sufficiently threatened to
satisfy the case-or-controversy clause. Data Processing Service v.
Camp, supra, at 154.
742 OCTOBER TERM, 1971
DoUGLAs, J., dissenting 405 U.S.
cern for protecting nature's ecological equilibrium should
lead to the conferral of standing upon environmental
objects to sue for their own preservation. See Stone,
Should Trees Have Standing?-Toward Legal Rights for
Natural Objects, 45 S. Cal. L. Rev. 450 (1972). This
suit would therefore be more properly labeled as Mineral
King v. Morton.
Inanimate objects are sometimes parties in litigation.
A ship has a legal personality, a fiction found useful for
maritime purposes.2 The corporation sole-a creature of
ecclesiastical law-is an acceptable adversary and large
fortunes ride on its cases.3 The ordinary corporation is
a "person" for purposes of the adjudicatory processes,
z In rem actions brought to adjudicate libelants' interests in vessels
are well known in admiralty. G. Gilmore & C. Black, The Law
of Admiralty 31 (1957). But admiralty also permits a salvage action
to be brought in the name of the rescuing vessel. The Camanche,
8 Wall. 448,476 (1869). And, in collision litigation, the first-libeled
ship may counterclaim in its own name. The Gylfe v. The Trujillo,
209 F. 2d 386 ( CA2 1954). Our case law has personified vessels:
"A ship is born when she is launched, and lives so long as her identity
is preserved. Prior to her launching she is a mere congeries of wood
and iron . . . . In the baptism of launching she receives her name,
and from the moment her keel touches the water she is transformed
. . . . She acquires a personality of her own." Tucke.r v.
Alexandrofj, 183 U. S. 424, 438.
3 At common law, an officeholder, such as a priest or the king,
and his successors constituted a corporation sole, a legal entity
distinct from the personality which managed it. Rights and duties
were deemed to adhere to this device rather than to the officeholder
in order to provide continuity after the latter retired. The
notion is occasionally revived by American courts. E. g., Reid v.
Barry, 93 Fla. 849, 112 So. 846 (1927), discussed in Recent Cases,
12 Minn. L. Rev. 295 (1928), and in Note, 26 Mich. L. Rev. 545
( 1928); see generally 1 W. Fletcher, Cyclopedia of the Law of Private
Corporations §§ 50-53 (1963); 1 P. Potter, Law of Corporations 27
(1881).
SIERRA CLUB v. MORTON 743
727 DouGLAS, J., dissenting
whether it represents proprietary, spiritual, aesthetic, or
charitable causes.'
So it should be as respects valleys, alpine meadows,
rivers, lakes, estuaries, beaches, ridges, groves of trees,
swampland, or even air that feels the destructive pressures
of modern technology and modern life. The river, for
example, is the living symbol of all the life it sustains
or nourishes-fish, aquatic insects, water ouzels, otter,
fisher, deer, elk, bear, and all other animals, including
man, who are dependent on it or who enjoy it for its
sight, its sound, or its life. The river as plaintiff speaks
for the ecological unit of life that is part of it. Those
people who have a meaningful relation to that body of
water-whether it be a fisherman, a canoeist, a zoologist,
or a logger-must be able to speak for the values
which the river represents and which are threatened with
destruction.
I do not know Mineral King. I have never seen it
nor traveled it, though I have seen articles describing
its proposed "development" 5 notably Hano, Protectionists
vs. recreationists-The Battle of Mineral King,
• Early jurists considered the conventional corporation to be a
highly artificial entity. Lord Coke opined that a corporation's
creation "rests only in intendment and consideration of the law."
Case of Sutton's Hospital, 77 Eng. Rep. 937, 973 (K. B. 1612).
Mr. Chief Justice Marshall added that the device is "an artificial
being, invisible, intangible, and existing only in contemplation of
law." Trustees of Dartmouth College v. Woodward, 4 Wheat. 518,
636 (1819). Today, suits in the names of corporations are taken
for granted.
5 Although in the past Mineral King Valley has annually supplied
about 70,000 visitor-days of simpler and more rustic forms of recreation-
hiking, camping, and skiing (without lifts)-the Forest Service
in 1949 and again in 1965 invited developers to submit proposals to
"improve" the Valley for resort use. Walt Disney Productions won
the competition and transformed the Service's idea into a mammoth
project 10 times its originally proposed dimensions. For example,
744 OCTOBER TERM, 1971
DoUGLAS, J., dissenting 405 U.S.
N. Y. Times Mag., Aug. 17, 1969, p. 25; and Browning,
Mickey Mouse in the Mountains, Harper's, March 1972,
p. 65. The Sierra Club in its complaint alleges that
" [ o] ne of the principal purposes of the Sierra Club is to
protect and conserve the national resources of the Sierra
Nevada Mountains." The District Court held that this
uncontested allegation made the Sierra Club "sufficiently
aggrieved" to have "standing" to sue on behalf of
Mineral King.
Mineral King is doubtless like other wonders of the
Sierra Nevada such as Tuolumne Meadows and the John
Muir Trail. Those who hike it, fish it, hunt it, camp
while the Forest Service prospectus called for an investment of at
least $3 million and a sleeping capacity of at least 100, Disney will
spend $35.3 million and will bed down 3,300 persons by 1978. Disney
also plans a nine-level parking structure with two supplemental lots
for automobiles, 10 restaurants and 20 ski lifts. The Service's annual
license revenue is hitched to Disney's profits. Under Disney's projections,
the Valley will be forced to accommodate a tourist population
twice as dense as that in Yosemite Valley on a busy day. And,
although Disney has bought up much of the private land near th!'
project, another commercial firm plans to transform an adjoining
160-acre parcel into a "piggyback" resort complex, further adding
to the volume of human activity the Valley must endure. See generally
Note, Mineral King Valley: Who Shall Watch the Watchmen?,
25 Rutgns L. Rev. 103, 107 ( 1970) ; Thar's Gold in Those
Hills, 206 The Nation 260 (1968). For a general critique of mass
recreation enclaves in national forests see Christian Science Monitor,
Nov. 22, 1965, p. 5, col. 1 (Western ed.). Michael Frome cautions
that the national forests are "fragile" and "deteriorate rapidly with
excessive recreation use" because "[t]he trampling effect alone eliminates
vegetative growth, creating erosion and water runoff problems.
The concentration of people, particularly in horse parties, on excessively
steep slopes that follow old Indian or cattle routes, has torn
up the landscape of the High Sierras in California and sent tons of
wilderness soil washing downstream each year." M. Frome, The
Forest Service 69 (1971).
SIERRA CLUB v. MORTON 745
727 DouoLAs, J., dissenting
in it, frequent it, or visit it merely to sit in solitude
and wonderment are legitimate spokesmen for it, whether
they may be few or many. Those who have that intimate
relation with the inanimate object about to be
injured, polluted, or otherwise despoiled are its legitimate
spokesmen.
The Solicitor General, whose views on this subject are
in the Appendix to this opinion, takes a wholly different
approach. He considers the problem in terms of "government
by the Judiciary." With all respect, the problem
is to make certain that the inanimate objects, which are
the very core of America's beauty, have spokesmen before
they are destroyed. It is, of course, true that most
of them are under the control of a federal or state agency.
The standards given those agencies are usually expressed
in terms of the "public interest." Yet "public interest"
has so many differing shades of meaning as to be quite
meaningless on the environmental front. Congress accordingly
has adopted ecological standards in the National
Environmental Policy Act of 1969, Pub. L. 91-190, 83
Stat. 852, 42 U. S. C. § 4321 et seq., and guidelines for
agency action have been provided by the Council on
Environmental Quality of which Russell E. Train is
Chairman. See 36 Fed. Reg. 7724.
Yet the pressures on agencies for favorable action one
way or the other are enormous. The suggestion that
Congress can stop action which is undesirable is true in
theory; yet even Congress is too remote to give meaningful
direction and its machinery is too ponderous to use
very of ten. The federal agencies of which I speak are
not venal or corrupt. But they are notoriously under
the control of powerful interests who manipulate them
through advisory committees, or friendly working relations,
or who have that natural affinity with the agency
746 OCTOBER TERM, 1971
DouGLAS, J., dissenting 405 U.S.
which in time develops between the regulator and the
regulated." As early as 1894, Attorney General Olney
predicted that regulatory agencies might become "indus-
6 The federal budget annually includes about $75 million for underwriting
about 1,500 advisory committees attached to various regulatory
agencies. These groups are almost exclusively composed of
industry representatives appointed by the President or by Cabinet
members. Although public members may be on these committees,
they are rarely asked to serve. Senator Lee Metcalf warns: "Industry
advisory committees exist inside most important federal agencies,
and even have offices in some. Legally, their function is purely as
kibitzer, but in practice many have become internal lobbies-printing
industry handouts in the Government Printing Office with taxpayers'
money, and even influencing policies. Industry committees perform
the dual function of stopping government from finding out about
corporations while at the same time helping corporations get inside
information about what government is doing. Sometimes, the same
company that sits on an advisory council that obstructs or turns
down a government questionnaire is precisely the company which is
withholding information the government needs in order to enforce
a law." Metcalf, The Vested Oracles: How Industry Regulates
Government, 3 The Washington Monthly, July 1971, p. 45. For proceedings
conducted by Senator Metcalf exposing these relationships,
see Hearings on S. 3067 before the Subcommittee on Intergovernmental
Relations of the Senate Committee on Government Operations,
91st Cong., 2d Sess. (1970); Hearings on S. 1637, S. 1964,
and S. 2064 before the Subcommittee on Intergovernmental Relations
of the Senate Committee on Government Operations, 92d
Cong., 1st Sess. (1971).
The web spun about administrative agencies by industry representatives
does not depend, of course, solely upon advisory committees
for effectiveness. See Elman, Administrative Reform of the
Federal Trade Commission, 59 Geo. L. J. 777, 788 (1971); Johnson,
A New Fidelity to the Regulatory Ideal, 59 Geo. L. J. 869, 874,
906 (1971); R. Berkman & K. Viscusi, Damming The West, The
Ralph Nader Study Group Report on The Bureau of Reclamation
155 (1971); R. Fellmeth, The Interstate Commerce Omission, The
Ralph Nader Study Group Report on the Interstate Commerce Commission
and Transportation 15--39 and passim (1970); J. Turner,
The Chemical Feast, The Ralph Nader Study Group Report on Food
SIERRA CLUB v. MORTON 747
727 DOUGLAS, J ., dissenting
try-minded," as illustrated by his forecast concerning
the Interstate Commerce Commission:
"The Commission . . . is, or can be made, of great
use to the railroads. It satisfies the popular clamor
for a government supervision of railroads, at the
same time that that supervision is almost entirely
nominal. Further, the older such a commission gets
to be, the more inclined it will be found to take
the business and railroad view of things." M.
Josephson, The Politicos 526 (1938).
Years later a court of appeals observed, "the recurring
question which has plagued public regulation of
industry [is] whether the regulatory agency is unduly
oriented toward the interests of the industry it is designed
to regulate, rather than the public interest it is
designed to protect." Moss v. CAB, 139 U. S. App.
D. C. 150, 152, 430 F. 2d 891, 893. See also Office of
Communication of the United Church of Christ v. FCC,
123 U. S. App. D. C. 328, 337-338, 359 F. 2d 994,
1003-1004; Udall v. FPC, 387 U. S. 428; Calvert Cliffs'
Coordinating Committee, Inc. v. AEC, 146 U. S. App.
D. C. 33, 449 F. 2d 1109; Environmental Defense Fund,
Inc. v. Ruckelshaus, 142 U. S. App. D. C. 74, 439
F. 2d 584; Environmental Defense Fund, Inc. v. HEW,
138 U. S. App. D. C. 381, 428 F. 2d 1083; Scenic Hudson
Preservation Conj. v. FPC, 354 F. 2d 608, 620. But see
Jaffe, The Federal Regulatory Agencies In Perspective:
Administrative Limitations In A Political Setting, 11
B. C. Ind. & Com. L. Rev. 565 (1970) (labels "industrymindedness"
as "devil" theory).
Protection and the Food and Drug Administration pa.ssim (1970);
Massel, The Regulatory Process, 26 Law & Contemp. Prob. 181, 189
(1961); J. Landis, Report on Regulatory Agencies to the President-
Elect 13, 69 (1960).
748 OCTOBER TERM, 1971
DoUGLAS, J., dissenting 405 U.S.
The Forest Service-one of the federal agencies behind
the scheme to despoil Mineral King-has been
notorious for its alignment with lumber companies,
although its mandate from Congress directs it to consider
the various aspects of multiple use in its supervision of
the national forests.7
7 The Forest Reserve Act of 1897, 30 Stat. 35, 16 U. S. C. § 551,
imposed upon the Secretary of the Interior the duty to "preserve the
[national] forests ... from destruction" by regulating their "occupancy
and use." In 1905 these duties and powers were transferred
to the Forest Service created within the Department of Agriculture
by the Act of Feb. 1, 1905, 33 Stat. 628, 16 U. S. C. § 472. The
phrase "occupancy and use" has been the cornerstone for the
concept of "multiple use" of national forests, that is, the policy
that uses other than logging were also to be taken into consideration
in managing our 154 national forests. This policy was made more
explicit by the Multiple-Use Sustained-Yield Act of 1960, 74 Stat.
215, 16 U. S. C. §§ 528-531, which provides that competing considerations
should include out.door recreation, range, timber, watershed,
wildlife, and fish purposes. The Forest Service, influenced by
powerful logging interests, has, however, paid only lip service to its
multiple-use mandate and has auctioned away millions of timberland
acres without considering environmental or conservational interests.
The importance of national forests to the construction and logging
industries results from the type of lumber grown therein which is
well suited to builders' needs. For example, Western acreage produces
Douglas fir (structural support) and ponderosa pine (plywood
lamination). In order to preserve the tot.al acreage and so-called
"maturity" of timber, the annual size of a Forest Service harvest is
supposedly equated with expected yearly reforestation. Nonetheless,
yearly cuts have increased from 5.6 billion board feet in 1950
to 13.74 billion in 1971. Forestry professionals challenge the Service's
explanation that this harvest increase to 240% is not really overcutting
but instead has resulted from its improved management of
timberlands. "Improved management," answer the critics, is only a
euphemism for exaggerated regrowth forecasts by the Service. N. Y.
Times, Nov. 15, 1971, p. 48, col. 1. Recent rises in lumber prices
have caused a new round of industry pressure to auction more
federally owned timber. See Wagner, Resources Report/LumberSIERRA
CLUB v. MORTON 749
727 DOUGLAS, J.1 dissenting
The voice of the inanimate object, therefore, should
not be stilled. That does not mean that the judiciary
takes over the managerial functions from the federal
men, conservationists head for new battle over government timber,
3 National J. 657 (1971).
Aside from the issue of how much timber should be cut annually,
another crucial question is how lumber should be harvested. Despite
much criticism, the Forest Service had adhered to a policy of permitting
logging companies to "clearcut" tracts of auctioned acreage.
"Clearcutting," somewhat analogous to strip mining, is the indiscriminate
and complete shaving from the earth of all trees-regardless
of size or age-often across hundreds of contiguous acres.
Of clearcutting, Senator Gale McGee, a leading antagonist of
Forest Service policy, complains: "The Forest Service's management
policies are wreaking havoc with the environment. Soil is eroding,
reforestation is neglected if not ignored, streams are silting, and
clearcutting remains a basic practice." N. Y. Times, Nov. 14, 1971,
p. 60, col. 2. He adds: "In Wyoming ... the Forest Service is very
much ... nursemaid ... to the lumber industry .... " Hearings on
Management Practices on the Public Lands before the Subcommittee
on Public Lands of the Senate Committee on Interior and Insular
Affairs, pt. 1, p. 7 (1971).
Senator Jennings Randolph offers a similar criticism of the leveling
by lumber companies of large portions of the Monongahela National
Forest in West Virginia. Id., at 9. See also 116 Cong. Rec. 36971
(reprinted speech of Sen. Jennings Randolph concerning Forest
Service policy in Monongahela National Forest). To investigate
similar controversy surrounding the Service's management of
the Bitterroot National Forest in Montana, Senator Lee Metcalf
recently asked forestry professionals at the University of Montana
to study local harvesting practices. The faculty group concluded
that public dissatisfaction had arisen from the Forest Service's "overriding
concern for sawtimber production" and its "insensitivity to
the related forest uses and to the ... public's interest in environmental
values." S. Doc. No. 91-115, p. 14 (1970). See also Behan,
Timber Mining: Accusation or Prospect?, American Forests, Nov.
1971, p. 4 (additional comments of faculty participant); Reich, The
Public and the Nation's Forests, 50 Calif. L. Rev. 381-400 (1962).
Former Secretary of the Interior Walter Hickel similarly faulted
clearcutting as excusable only as a money-saving harvesting practice
750 OCTOBER TERM, 1971
DOUGLAS, J., dissenting 405 U.S.
agency. It merely means that before these priceless bits
of Americana (such as a va1ley, an alpine meadow, a
river, or a lake) are forever lost or are so transformed as
to be reduced to the eventual rubble of our urban environment,
the voice of the existing beneficiaries of these
environmental wonders should be heard.8
for large lumber corporations. W. Hickel, Who Owns America? 130
( 1971). See also Risser, The U. S. Forest Service: Smokey's Strip
:Miners, 3 The Washington .:\fonthly, Dec. 1971, p. 16. And at least
one Forest Service study team shares some of these criticisms of clearcutting.
U. S. Dept. of Agriculture, Forest Management in Wyoming
12 (1971). See also Public Land Law Review Comm'n, Report to
the President and to the Congress 44 (1970); Chapman, Effects of
Logging upon Fish Resources of the West Coast, 60 J. of Forestry
533 (1962).
A third category of criticism results from the Service's huge backlog
of delayed reforestation projects. It is true that Congress has
underfunded replanting programs of the Service but it is also true
that the Service and lumber companies have regularly ensured that
Congress fully funds budgets requested for the Forest Service's
"timber sales and management." M. Frame, The Environment and
Timber Resources, in What's Ahead for Our Public Lands? 23, 24
(H. Pyles ed. 1970).
8 Permitting a court to appoint a representative of an inanimate
object would not be significantly different from customary judicial
appointments of guardians ad litem, executors, conservators, receivers,
or counsel for indigents.
The values that ride on decisions such as the present one are
often not appreciated even by the so-called experts.
"A teaspoon of living earth contains 5 million bacteria, 20 million
fungi, one million protozoa, and 200,000 algae. No living human
can predict what vital miracles may be locked in this dab of life,
this stupendous reservoir of genetic materials that have evolved continuously
since the dawn of the earth. For example, molds have
existed on earth for about 2 billion years. But only in this century
did we unlock the secret of the penicillins, tetracyclines, and other
antibiotics from the lowly molds, and thus fashion the most powerful
and effective medicines ever discovered by man. Medical scientists
still wince at the thought that we might have inadvertently wiped
SIERRA CLUB v. MORTON 751
727 DouoLAs, J ., dissenting
Perhaps they will not win. Perhaps the bulldozers of
"progress" will plow under all the aesthetic wonders of
this beautiful land. That is not the present question.
The sole question is, who has standing to be heard?
Those who hike the Appalachian Trail into Sunfish
Pond, New Jersey, and camp or sleep there, or run the
out the rhesus monkey, medically, the most important research
animal on earth. And who knows what revelations might lie in the
cells of the blackback gorilla nesting in his eyrie this moment in the
Virunga Mountains of Rwanda? And what might we have learned
from the European lion, the first species formally noted (in 80 A. D.)
as extinct by the Romans?
"When a species is gone, it is gone forever. Nature's genetic
chain, billions of years in the making, is broken for all time." Conserve-
Water, Land and Life, Nov. 1971, p. 4.
Aldo Leopold wrote in Round River 147 (1953):
"In Germany there is a mountain called the Spessart. Its south
slope bears the most magnificent oaks in the world. American
cabinetmakers, when they want the last word in quality, use Spessart
oak. The north slope, which should be the better, bears an indifferent
stand of Scotch pine. Why? Both slopes are part of the same
state forest; both have been managed with equally scrupulous care
for two centuries. Why the difference?
"Kick up the litter under the oaks and you will see that the leaves
rot almost as fast as they fall. Under the pines, though, the needles
pile up as a thick duff; decay is much slower. Why? Because in
the Middle Ages the south slope was preserved as a deer forest by a
hunting bishop; the north slope was pastured, plowed, and cut by
settlers, just as we do with our woodlots in Wisconsin and Iowa
today. Only after this period of abuse was the north slope replanted
to pines. During this period of abuse something happened
to the microscopic flora and fauna of the soil. The number of species
was greatly reduced, i. e., the digestive apparatus of the soil lost some
of its parts. Two centuries of conservation have not sufficed to restore
these losses. It required the modern microscope, and a century
of research in soil science, to discover the existence of these 'small
cogs and wheels' which determine harmony or disharmony between
men and land in the Spessart."
752 OCTOBER TERM, 1971
DouaLAs, J ., dissenting 405 U.S.
Allagash in Maine, or climb the Guadalupes in West
Texas, or who canoe and portage the Quetico Superior
in Minnesota, certainly should have standing to defend
those natural wonders before courts or agencies, though
they live 3,000 miles away. Those who merely are
caught up in environmental news or propaganda and
flock to defend these waters or areas may be treated differently.
That is why these environmental issues should
be tendered by the inanimate object itself. Then there
will be assurances that all of the forms of life 9 which it
represents will stand before the court-the pileated
woodpecker as well as the coyote and bear, the lemmings
as well as the trout in the streams. Those inarticulate
members of the ecological group cannot speak. But
those people who have so frequented the place as to
know its values and wonders will be able to speak for
the entire ecological community.
Ecology reflects the land ethic; and Aldo Leopold
wrote in A Sand County Almanac 204 (1949), "The
land ethic simply enlarges the boundaries of the community
to include soils, waters, plants, and animals, or
collectively: the land."
That, as I see it, is the issue of "standing" in the
present case and controversy.
9 Senator Cranston has introduced a bill to establish a 35,000-acre
Pupfish National Monument to honor the pupfish whi<'h are one
inch Jong and are useless to man. S. 2141, 92d Cong., 1st Sess.
They are too small to eat and unfit for a home aquarium. But as
Michael Frome has said:
"Still, I agree with Senator Cranston that saving the pupfish
would symbolize our appreciation of diversity in God's tired old
biosphere, the qualities which hold it together and the interaction
of life forms. When fishermen rise up united to save the pupfish
they can save the world as well." Field & Stream, Dec. 1971,
p. 74.
1
l
SIERRA CLUB v. MORTON
727 Appendix to opinion of DouGLAS, J., dissenting
APPENDIX TO OPINION OF DOUGLAS, J.,
DISSEKTING
753
Extract From Oral Argument of the Solicitor General*
"As far as I know, no case has yet been decided which
holds that a plaintiff which merely asserts that, to quote
from the complaint here, its interest would be wi<lely
affected [a]nd that 'it would be aggrieved' by the acts
of the defendant, has standing to raise legal questions
in court.
"But why not? Do not the courts exist to decide legal
questions? And are they not the most impartial and
learned agencies that we have in our governmental system?
Are there not many questions which must be decided
by the courts? Why should not the courts decide
any question which any citizen wants to raise?
"As the tenor of my argument indicates, this raises,
I think, a true question, perhaps a somewhat novel
question, in the separation of powers ....
"Ours is not a government by the Judiciary. It is a
government of three branches, each of which was intended
to have broad and effective powers subject to
checks and balances. In litigable cases, the courts have
great authority. But the Founders also intended that
the Congress should have wide powers, and that the
Executive Branch should have wide powers.
"All these officers have great responsibilities. They
are not less sworn than are the members of this Court
to uphold the Constitution of the United States.
"This, I submit, is what really lies behind the standing
> doctrine, embodied in those cryptic words 'case' and 'controversy'
in Article III of the Constitution.
*Tr. of Oral Arg. 31-35.
754 OCTOBER TERM, 1971
Appendix to opinion of DouGLAs, J., dissenting 405 U.S.
"Analytically one could have a system of government
in which every legal question arising in the core of government
would be decided by the courts. It would not
be, I submit, a good system.
"More important, it is not the system which was ordained
and established in our Constitution, as it has been
understood for nearly 200 years.
"Over the past 20 or 25 years, there has been a great
shift in the decision of legal questions in our governmental
operations into the courts. This has been the
result of continuous whittling away of the numerous doctrines
which have been established over the years, designed
to minimize the number of governmental questions
which it was the responsibility of the courts to consider.
"I've already mentioned the most ancient of all;
case or controversy, which was early relied on to prevent
the presentation of feigned issues to the court.
"But there are many other doctrines, which I cannot
go into in detail: reviewability, justiciability, sovereign
immunity, mootness in various aspects, statutes of limitations
and !aches, jurisdictional amount, real party in
interest, and various questions in relation to joinder.
"Under all of these headings, limitations which previously
existed to minimize the number of questions decided
in courts, have broken down in varying degrees.
"I might also mention the explosive development of
class actions, which has thrown more and more issues into
the courts.
"If there is standing in this case, I find it very difficult
to think of any legal issue arising in government
which will not have to await one or more decisions of the
Court before the administrator, sworn to uphold the law,
can take any action. I'm not sure that this is good for
the government. I'm not sure that it's good for the
I l
SIERRA CLUB v. MORTON 755
727 BLACKMUN, J., di.,"Senting
courts. I do find myself more and more sure that it
is not the kind of allocation of governmental power in
our tripartite constitutional system that was contemplated
by the Founders.
"I do not suggest that the administrators can act at
their whim and without any check at all. On the contrary,
in this area they are subject to continuous check
by the Congress. Congress can stop this development
any time it wants to."
MR. JUSTICE BRENNAN, dissenting.
I agree that the Sierra Club has standing for the reasons
stated by my Brother BLACKMUN in Alternative No.
2 of his dissent. I therefore would reach the merits.
Since the Court does not do so, however, I simply note
agreement with my Brother BLACKMUN that the merits
are substantial.
MR. JUSTICE BLACKMUN, dissenting.
The Court's opinion is a practical one espousing and
adhering to traditional notions of standing as somewhat
modernized by Data Processing Service v. Camp,
397 U. S. 150 (1970); Barlow v. Collins, 397 U. S. 159
(1970); and Flast v. Cohen, 392 U. S. 83 (1968). If
this were an ordinary case, I would join the opinion and
the Court's judgment and be quite content.
But this is not ordinary, run-of-the-mill litigation.
The case poses---if only we choose to acknowledge and
reach them-significant aspects of a wide, growing, and
disturbing problem, that is, the Nation's and the world's
deteriorating environment with its resulting ecological
disturbances. Must our law be so rigid and our procedural
concepts so inflexible that we render ourselves
helpless when the existing methods and the traditional
756 OCTOBER TERM, 1971
BLACKMUN, J., clissenting 405 u. s.
concepts do not quite fit and do not prove to be entirely
adequate for new issues?
The ultimate result of the Court's decision today, I
fear, and sadly so, is that the 35.3-million-dollar complex,
over 10 times greater than the Forest Service's suggested
minimum, will now hastily proceed to completion; that
serious opposition to it will recede in discouragement;
and that Mineral King, the "area of great natural beauty
nestled in the Sierra Nevada Mountains," to use the
Court's words, will become defaced, at least in part, and,
like so many other areas, will cease to be "uncluttered
by the products of civilization."
I believe this will come about because: (1) The District
Court, although it accepted standing for the Sierra
Club and granted preliminary injunctive relief, was reversed
by the Court of Appeals, and this Court now upholds
that reversal. (2) With the reversal, interim relief
by the District Court is now out of the question and a
permanent injunction becomes most unlikely. (3) The
Sierra Club may not choose to amend its complaint or,
if it does desire to do so, may not, at this late date, be
granted permission. ( 4) The ever-present pressure to
get the project under way will mount. (5) Once under
way, any prospect of bringing it to a halt will grow
dim. Reasons, most of them economic, for not stopping
the project will have a tendency to multiply. And the
irreparable harm will be largely inflicted in the ear lier
stages of construction and development.
Rather than pursue the course the Court has chosen
to take by its affirmance of the judgment of the Court
of Appeals, I would adopt one of two alternatives:
1. I would reverse that judgment and, instead, approve
the judgment of the District Court which recognized
standing in the Sierra Club and granted preliminary relief.
I would be willing to do this on condition that the
Sierra Club forthwith amend its complaint to meet the
'
' '
'
'
SIERRA CLUB v. MORTON 757
727 BLACKMUN, J., dissenting
specifications the Court prescribes for standing. If Sierra
Club fails or refuses to take that step, so be it; the case
will then collapse. But if it does amend, the merits will
be before the trial court once again. As the Court,
ante, at 730 n. 2, so clearly reveals, the issues on the
merits are substantial and deserve resolution. They
assay new ground. They are crucial to the future of
Mineral King. They raise important ramifications for
the quality of the country's public land management.
They pose the propriety of the "dual permit" device as
a means of avoiding the 80-acre "recreation and resort"
limitation imposed by Congress in 16 U. S. C. § 497, an
issue that apparently has never been litigated, and is
clearly substantial in light of the congressional expansion
of the limitation in 1956 arguably to put teeth into the
old, unrealistic five-acre limitation. In fact, they concern
the propriety of the 80-acre permit itself and the
consistency of the entire, enormous development with
the statutory purposes of the Sequoia Game Refuge, of
which the Valley is a part. In the context of this particular
development, substantial questions are raised
about the use of a national park area for Disney purposes
for a new high speed road and a 66,000-volt power line
to serve the complex. Lack of compliance with existing
administrative regulations is also charged. These issues
are not shallow or perfunctory.
2. Alternatively, I would permit an imaginative expansion
of our traditional concepts of standing in order
to enable an organization such as the Sierra Club, possessed,
as it is, of pertinent, bona fide, and well-recognized
attributes and purposes in the area of environment,
to litigate environmental issues. This incursion upon
tradition need not be very extensive. Certainly, it
should be no cause for alarm. It is no more progressive
than was the decision in Data Processing itself. It need
only recognize the interest of one who has a provable,
758 OCTOBER TERM, 1971
BLACKMUN, J ., dissenting 405 U.S.
sincere, dedicated, and established status. We need not
fear that Pandora's box will be opened or that there
will be no limit to the number of those who desire to
participate in environmental litigation. The courts will
exercise appropriate restraints just as they have exercised
them in the past. Who would have suspected 20
years ago that the concepts of standing enunciated in
Data Processing and Barlow would be the measure for
today? And MR. JusTICE DouGLAS, in his eloquent
opinion, has imaginatively suggested another means and
one, in its own way, with obvious, appropriate, and selfimposed
limitations as to standing. As I read what he
has written, he makes only one addition to the customary
criteria ( the existence of a genuine dispute; the assurance
of adversariness; and a conviction that the party
whose standing is challenged will adequately represent
the interests he asserts), that is, that the litigant be one
who speaks knowingly for the environmental values he
asserts.
I make two passing references:
1. The first relates to the Disney figures presented to
us. The complex, the Court notes, will accommodate
14,000 visitors a day (3,100 overnight; some 800 employees;
10 restaurants; 20 ski lifts). The State of
California has proposed to build a new road from Hammond
to Mineral King. That road, to the extent of
9.2 miles, is to traverse Sequoia National Park. It will
have only two lanes, with occasional passing areas, but
it will be capable, it is said, of accommodating 700-800
vehicles per hour and a peak of 1,200 per hour. We
are told that the State has agreed not to seek any further
improvement in road access through the park.
If we assume that the 14,000 daily visitors come by
automobile (rather than by helicopter or bus or other
known or unknown means) and that each visiting automobile
carries four passengers (an assumption, I am
SIERRA CLUB v. MORTON 759
727 BLACKMUN, J., dissenting
sure, that is far too optimistic), those 14,000 visitors will
move in 3,500 vehicles. If we confine their movement
(as I think we properly may for this mountain area) to
12 hours out of the daily 24, the 3,500 automobiles will
pass any given point on the two-lane road at the rate
of about 300 per hour. This amounts to five vehicles
per minute, or an average of one every 12 seconds. This
frequency is further increased to one every six seconds
when the necessary return traffic along that same twolane
road is considered. And this does not include service
vehicles and employees' cars. Is this the way we
perpetuate the wilderness and its beauty, solitude, and
quiet?
2. The second relates to the fairly obvious fact that
any resident of the Mineral King area-the real "user"-
is an unlikely adversary for this Disney-governmental
project. He naturally will be inclined to regard the situation
as one that should benefit him economically. His
fishing or camping or guiding or handyman or general
outdoor prowess perhaps will find an early and ready
market among the visitors. But that glow of anticipation
will be short-lived at best. If he is a true lover
of the wilderness-as is likely, or he would not be near
Mineral King in the first place-it will not be long
before he yearns for the good old days when masses of
people-that 14,000 influx per day-and their thus far
uncontrollable waste were unknown to Mineral King.
Do we need any further indication and proof that
all this means that the area will no longer be one "of
great natural beauty" and one "uncluttered by the
products of civilization?" Are we to be rendered helpless
to consider and evaluate allegations and challenges
of this kind because of procedural limitations rooted in
traditional concepts of standing? I suspect that this
may be the result of today's holding. As the Court
points out, ante, at 738-739, other federal tribunals have
760 OCTOBER TERM, 1971
BLACKMUN, J ., dissenting 405 U.S.
not felt themselves so confined.1 I would join those
progressive holdings.
The Court chooses to conclude its opinion with a footnote
reference to De Tocqueville. In this environmental
context I personally prefer the older and particularly
pertinent observation and warning of John Donne.2
1 Environmental Defense Fund, Inc. v. Hardin, 138 U. S. App.
D. C. 391, 394-395, 428 F. 2d 1093, 1096-1097 (1970); Citizens
Committee for the Hudson Valley v. Volpe, 425 F. 2d 97, 101-105
(CA2 1970), cert. denied, 400 U.S. 949; Scenic Hudson Preservation
Conj. v. FPC, 354 F. 2d 608, 615-617 (CA2 1965); Izaak Walton
League v. St. Clair, 313 F. Supp. 1312, 1316-1317 (Minn. 1970);
Environmental Defense Fund, Inc. v. Corps of Engineers, 324 F.
Supp. 878, 879-880 (DC 1971); Environmental Defense Fund, Inc.
v. Corps of Engineers, 325 F. Supp. 728, 734-736 (ED Ark. 1970--
1971); Sierra Club v. Hardin, 325 F. Supp. 99, 107-112 (Alaska
1971); Upper Pecos Assn. v. Stans, 328 F. Supp. 332, 333-334 (N.
Mex. 1971); Cape May County Chapter, Inc., Izaak Walton League
v. Macchia, 329 F. Supp. 504, 510--514 (N. J. 1971). See National
Automatic Laundry & Cleaning Council v. Shultz, 143 U. S. App.
D. C. 274, 278-279, 443 F. 2d 689, 693-694 (1971); West Virginia
Highlands Conservancy v. Island Creek Coal, Co., 441 F. 2d 232,
234-235 (CA4 1971); Environmental Defense Fund, Inc. v. HEW,
138 U. S. App. D. C. 381, 383 n. 2, 428 F. 2d 1083, 1085 n. 2 (1970);
Honchok v. Hardin, 326 F. Supp. 988,991 (Md. 1971).
2 "No man is an Iland, intire of itselfe; every man is a peece of
the Continent, a part of the maine; if a Clod bee washed away by
the Sea, Europe is the lesse, as well as if a Promontorie were, as well
as if a Mannor of thy friends or of thine owne were; any man's
death diminishes me, because I am involved in Mankinde; And
therefore never send to know for whom the bell tolls; it tolls for
thee." Devotions XVII.
============--;_.=~=---- --
REPOR'l'ER'S NOTE
The next page is purposely numbered 901. The numbers between
760 and 901 were intentionally omitted, in order to make it pos.~ible
to publish the orders in the current preliminary prints of the United
States Reports with permanent page numbers, thus makin11; the
official citations immediately available.

ORDERS FROM FEBRUARY 22 THROUGH
APRIL 17, 1972
FEBRUARY 22, 1972
Affirmed on Appeal
No. 71-533. NATIVE AMERICAN CHURCH OF NAVAJOLAND,
INC., ET AL. v. ARIZONA CORPORATION COMMISSION.
Affirmed on appeal from D. C. Ariz. Reported below:
329 F. Supp. 907.
MR. JUSTICE DOUGLAS, with whom MR. JusTICE STEWART
and MR. JusTICE REHNQUIST join, dissenting.
This is a direct appeal from the order of a three-judge
District Court, convened pursuant to 28 U. S. C. § 2281,1
denying appellants' prayer for injunctive relief. Jurisdiction
over the appeal is based upon 28 U.S. C. § 1253.2
If the three-judge court were improperly convened, however,
the appeal lies not to this Court, but to the Court
of Appeals. Moody v. Flowers, 387 U. S. 97 .. My anal-
1 Title 28 U. S. C. § 2281:
"An interlocutory or permanent injunction restraining the enforcement,
operation or execution of any State statute by restraining
the action of any officer of such State in the enforcement or execution
of such statute or of an order made by an administrative
board or "ommis~ion acting under State statutes, shall not be granted
by any district court or judge thereof upon the ground of the
unconstitutionality of such statute unless the application therefor
is heard and determined by a district court of three judges under
section 2284 of this title."
2 Title 28 U. S. C. § 1253:
"Except as otherwise provided by law, any party may appeal
to the Supreme Court from an order granting or denying, after
notice and hearing, an interlocutory or permanent injunction in any
civil action, suit or prooeeding required by any Act of Congress to
be heard and determined by a district court of three judges."
901
902 OCTOBER TERM, H}71
DoUGLAS, J., dissenting 405 U.S.
ysis leads me to conclude that a three-judge court was
not required, so I would dismiss this appeal.
The controversy involves the efforts of appellant Native
American Church of N avajoland, Inc., to obtain a certificate
of incorporation from the Arizona Corporation
Commission. According to Arizona law, "Any number
of persons may associate themselves together and become
incorporated for the transaction of any lawful business."
Ariz. Rev. Stat. Ann.§ 10.-121 (emphasis supplied). The
Commission refused to issue the certificate for the reason
that it believed appellant Church's proposed Articles of
Incorporation revealed that the organization had an unlawful
purpose for incorporating, that being "to work for
unity in the use of Peyote, as a Sacrament and as a means
of divine healing through its Divine Power." It appears
to be conceded that the Commission's decision was
prompted by the fact that the use, possession, and sale of
peyote is made a misdemeanor by Ariz. Rev. Stat. Ann.
§ 36-1061, and because peyote is subject to regulation as
a "dangerous drug" under Ariz. Rev. Stat. Ann. §§ 32-
1964 (A)(7), 32--1965, and 32-1975. Appellants then
sought declaratory and injunctive relief from the District
Court.
Two injunctions were sought. The first asked that
the Corporation Commission be enjoined from refusing
to grant appellants a certificate of incorporation "for
failure to comply with" Ariz. Rev. Stat. Ann. § § 10.-121
and 36-1061. Insofar as this prayer asked to enjoin
Commission action taken under color of Ariz. Rev. Stat.
Ann. § 10.-121, however, it was insufficient to require a
three-judge court. Nowhere in their complaint did appellants
attack the constitutionality of§ 10.-121, either on
its face or as applied. Indeed, they concede its constitutionality
before this Court, stating explicitly that it is
"neutral in scope and application." (Reply Brief for Appellants
4.) But, as has been long held, an action t.o enORDERS
903
901 DOUGLAS, J., dissenting
join the allegedly unconstitutional result reached by the
Commission in the exercise of its authority under § 10-121
would not sustain the jurisdiction of a three-judge court.
Phillips v. United States, 312 U. S. 246; Ex parte Bransford,
310 U. S. 354; Ex parte Hobbs, 280 U. S. 168.
"It is necessary to distinguish between a petition for
injunction on the ground of the unconstitutionality
of a statute as applied, which requires a three-judge
court, and a petition which seeks an injunction on
the ground of the unconstitutionality of the result
obtained by the use of a statute which is not attacked
as unconstitutional. The latter petition does
not require a three-judge court. In such a case the
attack is aimed at an allegedly erroneous administrative
action. " Ex parte Bransford, supra,
at 361.3
3 We have recently employed this very distinction in analyzing
our jurisdiction under an analogous statute. In United States v.
Christian Echoes National Ministry, Inc., 404 U. S. 561, the Government
attempted to take a direct appeal from the decision of a
one-judge district court that the Internal Revenue Service had
improperly revoked Christian Echoes' tax exemption as a religious
organization under § 501 (c) (3) of the Code (because of alleged
political activity). Our jurisdiction over the appeal depended on
the constitutionality of § 501 (c) (3) "as applied," having been called
into question by the District Judge's opinion. 28 U. S. C. § 1252.
Despite the fact that the District Judge found the Service's interpretation
of § 501 (c) (3) violated Christian Echoes' First Amendment
rights, we held that his commentary did not constitute a
finding that the statute was unconstitutional "as applied."
"[Tl he District Court's commentary on the denial of the appellee's
First Amendment rights was directed to the particular interpretation
given to § 501 (c) (3) by the Internal Revenue Service in this
case and to its means of enforcing that interpretation. . . . The
court refused to interpret and apply the section to require an
analysis of the 'religious' or 'non-religious' character of every activity
by a concededly religious organization, because such an interpretation
and application would infringe the right to free exercise
904 OCTOBER TERM, 1971
DOUGLAS, J ., dissenting 405 U.S.
Moreover, a three-judge court was not required to hear
appellants' challenge to the Commission's alleged "enforcement"
of the Arizona drug law which was attacked
as unconstitutional. The Commission is not authorized
by state law to enforce criminal statutes. Its authority
extends only to the enforcement of the negative implications
of Ariz. Rev. Stat. Ann. § 10-121. Its opinion that
the use of peyote in religious sacraments is an unlawful
purpose for incorporation does not reflect an official position
on the part of those state officers who are charged
with law enforcement that members of the Native American
Church can be arrested for observing the tenets of
their religion. Section 2281 requires that appellants' action
be one to restrain "the action of any officer of such
State in the enforcement or execution of such statute"
and this requirement cannot be circumvented "by joinof
religion. It stated that the Internal Revenue Service had already
gone too far in its enforcement of this interpretation. But the
statement that the Service violated the appellee's First Amendment
rights is not the same as a holding that Congress did so in enacting
§ 501 (c)(3). The court avoided holding that the section itself
was unconstitutional 'as applied'-i. e., that the section, by its own
terms, infringed constitutional freedoms in the circumstances of the
particular case. Rather, it held that the Service had misinterpreted
§ 501 (c) (3) and that the section must be narrowly construed.
Although the construction was based on a constitutional
premise, it did not amount to a holding that an Act of Congress is
unconstitutional .... " Id., at 564--566.
Similarly, the fact that the Arizona Corporation Commission
might have infringed appellants' First Amendment rights in its
interpretation of the phrase "lawful business" in Ariz. Rev. Stat. Ann.
§ 10-121 does not mean that appellants' commentary on this action
called into question the constitutionality of § 10-121 "as applied."
As in Christian Echoes, "[a]lthough the [attack] was based on a
constitutional premise, it did not amount to a [claim] that [the
statute] is unconstitutional," supra, a.t 565-566. Rather, it was
merely a challenge to "allegedly erroneous administrative action,"
Ex parte Bransford, 310 U. S. 354, 361.
ORDERS 905
901 DouGLAs, J ., dissenting
ing, as nominal parties defendant, state officers whose
action is not the effective means of the enforcement or
execution of the challenged statute," Wilentz v. Sovereign
Camp, 306 U. S. 573, 579-580. This prayer,
therefore, was also insufficient to require a three-judge
court.
Appellants' second prayer for injunctive relief seems
at first glance to cure the above-mentioned defects. It
prays that the Governor of Arizona "and his subordinate
officials, agents, and employees" be restrained from enforcing
the Arizona drug laws against appellants "in
any way which infringes upon their right to the free
exercise of their religion." The difficulty is that, taking
the complaint "as we find it," Moody v. Flowers, supra,
at 104, it nowhere appears that the challenged statutes
have ever been, are now, or ever will be enforced against
appellants. The complaint, and the motion to dismiss
filed in response thereto, permit the inference that Arizona
already purports to except the Native American Church
from the operation of the challenged laws.4 An amended
complaint might not be open to this criticism. But we
require that the substantiality of the federal question
presented appear from the face of the pleadings that
• Thus, appellee's motion to dismiss, filed in the court below, contained
an affidavit from an official of the Narcotics Enforcement
Division of the Arizona Department of Public Safety, wherein he
averred that he has been with the Department "since 1966 and
during that time they have never arrested any members of the
Native American Church of Navajoland where such members were
holding an alleged religious ceremony and where there was present
at such ceremony only Indians."
At least one Arizona court, moreover, has explicitly ruled that
its narcotics statute could not constitutionally be applied to members
of the Native American Church. Arizona v. Attakai, Cr. No.
4098, Coconino County, July 26, 1960. The State's appeal in
Attakai was dismissed by the Arizona Supreme Court.
906 OCTOBER TERM, 1971
February 22, 1972 405 U.S.
are filed, not those which might have been. Oklahoma
Gas Co. v. Packing Co., 292 U. S. 386; Arneson v. Denny,
25 F. 2d 988; Bunce v. William,c;, 159 F. Supp. 325.
A,ppellants' failure to come under § 2281 might appear
to rest on a view of pleading at a variance with the
liberal notions which are said to underlie the Federal
Rules. But, as we have of ten remarked, it is § 2281
which is at variance with our notions of orderly federal
procedures. It is not "a measure of broad social policy
to be construed with great liberality, but ... an enactment
technical in the strict sense of the term and to be
applied as such." Phillips v. United States, supra,
at 251.
We should vacate the judgment below and remand
for the entry of a fresh decree, so that appellants might
pursue their appropriate remedy in the Court of Appeals.
Moody v. Flowers, supra; Phillips v. United
States, supra.
No. 71-561. KOEHLER ET AL. v. OGILVIE, GOVERNOR
OF ILLINOIS, ET AL. Affirmed on appeal from D. C. N. D.
Ill.
No. 71-658. QUINCY COLLEGE & SEMINARY CORP. ET
AL. v. BURLINGTON NORTHERN, INC., ET AL. Affirmerl
on appeal from D. C. N. D. Ill. Reported below: 328
F. Supp. 808.
No. 71-770. PRINSBURG Coop FERTILIZER Co. ET AL.
v. UNITED STATES ET AL.; and
No. 71-786. STERNER INDUSTRIES, INC. v. UNITED
STATES ET AL. Affirmed on appeal from D. C. Minn.
No. 71--664. CLOUD ET AL. v. DEITZ ET AL. Affirmed
on appeal from D. C. E. D. Ky. MR. JUSTICE DOUGLAS
would note probable jurisdiction and set case for oral
argument.
ORDERS 907
405 u. s. February 22, 1972
Appeals Dismissed
No. 71-657. HAWAIIAN LAND Co., LTD. v. DIRECTOR
OF TAXATION OF HAWAII. Appeal from Sup. Ct. Hawaii
dismissed for want of substantial federal question. MR.
JusTICE DouGLAS would note probable jurisdiction and
set case for oral argument. Reported below: 53 Haw.
45, 487 P. 2d 1070.
No. 71-726. JORDAN V. MEISSER ET AL. Appeal from
Ct. App. N. Y. dismissed for want of substantial federal
question. Reported below: 29 N. Y. 2d 661, 274 N. E.
2d 444.
No. 71-767. KAWITT ET AL. v. MAHIN, DIRECTOR OF
REVENUE OF ILLINOIS, ET AL. Appeal from Sup. Ct. Ill.
dismissed for want of substantial federal question. Reported
below: 49 Ill. 2d 73, 271 N. E. 2d 35.
No. 71-735. REY v. UNITED STATES. Appeal from
C. A. 5th Cir. dismissed for want of jurisdiction. Treating
the papers whereon the appeal was taken as a petition
for writ of certiorari, certiorari denied. Reported
below: 441 F. 2d 727.
No. 71-822. KING v. CITY oF SAN BERNARDINO ET AL.
Appeal from Ct. App. Cal., 4th App. Dist., dismissed for
want of jurisdiction. Treating the papers whereon the
appeal was taken as a petition for writ of certiorari, certiorari
denied.
No. 71-746. HARGROVE v. NEWSOME ET AL. Appeal
from Sup. Ct. Tenn. Motion to dispense with printing
jurisdictional statement granted. Appeal dismissed for
want of jurisdiction. Treating the papers whereon the
appeal was taken as a petition for writ of certiorari,
certiorari denied. Reported below: - Tenn. -, 470
S. W. 2d 348.
908 OCTOBER TERM, 1971
February 22, 1972 405 u. s.
No. 71-831. GIORDANO ET AL. V. STUBBS ET AL. Appeal
from Sup. Ct. Ga. dismissed for want of jurisdiction.
Treating the papers whereon the appeal was taken
as a petition for writ of certiorari, certiorari denied. Reported
below: 228 Ga. 75, 184 S. E. 2d 165.
No. 71-838. PHOENIX NEWSPAPERS, lNc., ET AL. v.
CHURCH. Appeal from Super. Ct. Ariz., County of
Maricopa, dismissed for want of jurisdiction. Treating
the papers whereon the appeal was taken as a petition
for writ of certiorari, certiorari denied.
No. 71-5558. NEWSOME v. NEW YORK. Appeal from
App. Term, Sup. Ct. N. Y., 2d and 11th Jud. Dists.,
dismissed for want of jurisdiction. Treating the papers
whereon the appeal was taken as a petition for writ of
certiorari, certiorari denied.
Certiorari Granted-Vacated and Remanded. ( See also
No. 70--5075, ante, p. 1, and No. 71-352, ante, p. 9.)
No. 71-298. RosENGART v. LAIRD, SECRETARY OF DEFENSE,
ET AL. C. A. 2d Cir. Certiorari granted, judgment
vacated, and case remanded for reconsideration in
light of suggestions of the Solicitor General and upon
independent examination of entire record. Reported below:
449 F. 2d 523.
MR. JUSTICE WHITE, with whom THE CHIEF JusTICE
and MR. JUSTICE REHNQUIST concur, dissenting.
The Court vacates the judgment of the Court of Appeals,
449 F. 2d 523, and directs that the Court of Appeals
consider the views of the United States presented in this
case. Finding the suggestions of the United States unacceptable,
I dissent from today's judgment.
In its memorandum filed October 13, 1971, in response
to the petition for certiorari, the United States asserted
that in passing on petitioner's conscientious objector's
claim the Army considered petitioner's opposition to war
to be sincere and rejected the claim solely because petiORDERS
909
908 WHITE, J ., dissenting
tioner's views did not qualify as religious under the standards
of Welsh v. United States, 398 U.S. 333 (1970). It
was therefore error, the United States urged, for the
Court of Appeals to have put aside the Welsh issue and
to have affirmed the denial of habeas corpus on insincerity
grounds after making an "independent search of the
administrative record" to discover a basis in fact for such
a judgment.
These assertions were incredible. The Army Review
Board, in its final order entered on September 10, 1970,
denying the conscientious objector claim, unanimously
found that "lLT Rosengart's purported conscientious
objector beliefs are not truly held; and that any objection
to war in any form he might sincerely hold is based
solely on philosophical views and sociological experiences."
The plain meaning of this order is that the
Board both found that petitioner was not sincere and
determined that his views were solely philosophical and
sociological.
The Court of Appeals so read the Board's order, saying
" [ t]he Board found that any conscientious objection held
by Rosengart was based solely on philosophical views and
sociological experiences (a curious finding in the light of
Welsh) and that Rosengart's 'purported conscientious
[objector] beliefs are not truly held.' " Supra, at 528.
The Court of Appeals then put aside the issue of
whether petitioner's beliefs were religious within the
meaning of the Act and affirmed the denial of habeas
corpus after agreeing with the District Court that there
was a basis in fact for a conclusion of insincerity because
the record "cast a cloud upon the sincerity of his professed
deeply-held beliefs of conscientious objection."
Ibid.
There was nothing untoward in the way the Court of
Appeals approached the case, particularly since the
United States in its October 13 memorandum flatly asserted
that there was indeed sufficient evidence in the
910 OCTOBER TERM, 1971
February 22, 1972 405 u. s.
record to support the judgment of insincerity and that
"under normal circumstances, such evidence would, in
our view, provide ample factual basis for a denial of petitioner's
application for discharge."
When asked for further response, the United States
filed a supplemental memorandum on December 10, 1971,
modifying its position. It now concedes the dual basis
of the Board's order and that " [ v] iewed solely in light
of the September 10 Board decision, the majority's conclusion
in this regard is not unwarranted." It also reveals
that "[i]ndeed, such a result was suggested by the
government's argument below .... " Nevertheless, although
again not disagreeing "with the conclusion reached
by the majority below that there was basis in fact on this
record to sustain a finding of 'insincerity' with respect to
petitioner's claimed opposition to war," the Government's
position in the Court of Appeals is characterized as placing
"undue emphasis on the final recommendation of the
Army Review Board." It is now urged that the Board's
September 10 decision be read in conjunction with its
earlier decisions and that in context the Board be deemed
to have found petitioner to be sincere.
I find nothing to commend the Government's position
in this case. It would be one thing if it forthrightly supported
petitioner's sincerity. It is quite another thing
to assert that the record supports a judgment of insincerity,
and then, notwithstanding this concession, to urge
setting aside the final order of the Army Review Board
which plainly found petitioner insincere and which the
United States does not straightforwardly argue was beyond
the power of the Board.
No. 71-5709. JIMENEZ v. BETO, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Motion for leave to proceed in
forma pauper-is and certiorari granted. Judgment vacated
and case remanded for further consideration in
light of Haines v. Kerner, 404 U. S. 519.
ORDERS 911
405 U.S. February 22, 1972
No. 71-757. KING ET AL. v. JONES ET AL. C. A. 6th
Cir. Certiorari granted. Judgment of the Court of
Appeals vacated and case remanded to the District
Court for the Northern District of Ohio with directions
to dismiss proceedings as moot. Reported below: 450
F. 2d 478.
Miscellaneous Orders
No. A-520. IN RE DISBARMENT OF SAMPLES. It having
been reported to the Court that Franklin P. Samples
of Huntsville, Alabama, has been disbarred from the
practice of law by the Supreme Court of Alabama, duly
entered September 1, 1971, and this Court by order of
November 22, 1971 [ 404 U. S. 963], having suspended
the said Franklin P. Samples from the practice of law
in this Court and directed that a rule issue requiring him
to show cause why he should not be disbarred;
And it appearing that the said rule was duly issued
and served upon the respondent, and that the time
within which to file a return to the rule has expired;
IT Is ORDERED that the said Franklin P. Samples be,
and he is hereby, disbarred from the practice of law
in this Court and that his name be stricken from the
roll of attorneys admitted to practice before the Bar
of this Court.
No. A-771. PESOLI ET AL. v. MURPHY ET AL. C. A.
7th Cir. Application for temporary injunction presented
to MR. JUSTICE REHNQUIST, and by him referred to the
Court, denied. MR. JusTICE DOUGLAS is of the opinion
that the application should be granted as to applicant
Pesoli, he having been suspended solely on the ground
that he invoked the self-incrimination clause of the
Fifth Amendment.
No. A-775. CuLAno v. UNITED STATES. C. A. 2d Cir.
Application for stay of mandate presented to MR. Jus-
TICE DouGLAS, and by him referred to the Court, denied.
912 OCTOBER TERM, 1971
February 22, 1972 405 U.S.
No. A-816. BULLOCK, SECRETARY OF STATE OF TEXAS
v. WEISER ET AL. D. C. N. D. Tex. Motion of appellees
to advance and expedite and to dispense with printing
denied.
No. A---822. THORBUS v. BETO, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Application for bail presented to
MR. JUSTICE DouGLAS, and by him referred to the Court,
denied.
No. A-838. WoonsuM v. BoYD ET AL. D. C. M. D.
Fla. Application for stay order presented to MR. JusTICE
PowELL, and by him referred to the Court, denied.
No. 69-5003. FURMAN v. GEORGIA; and
No. 69-5030. JACKSON v. GEORGIA. Sup. Ct. Ga.
[Certiorari granted, 403 U. S. 952.] Motion of respondent
for leave to file supplemental brief, after argument,
granted.
No. 70-75. MOOSE LODGE No. 107 v. lRVIS ET AL.
Appeal from D. C. M. D. Pa. [Probable jurisdiction
postponed, 401 U. S. 992.] Motion of the Attorney
General of Pennsylvania for leave to participate in oral
argument denied.
No. 70-5015. ARGERSINGER v. HAMLIN, SHERIFF.
Sup. Ct. Fla. [Certiorari granted, 401 U. S. 908.] Motion
of the Solicitor General for leave to participate in
oral argument as amicus curiae granted and a total of
20 minutes allotted for that purpose.
No. 70-5276. MuREL ET AL. v. BALTIMORE CITY CRIMINAL
CouRT ET AL. C. A. 4th Cir. [Certiorari granted,
404 U. S. 999.] Motion of petitioners for additional
time for oral argument denied. MR. JUSTICE STEWART
is of the opinion that the motion should be granted. Motion
for additional counsel to argue on behalf of petitioners
granted.
ORDERS 913
405 U.S. February 22, 1972
No. 70-5112. WEBER v. AETNA CASUALTY & SURETY
Co. ET AL. Sup. Ct. La. [ Certiorari granted, 404 U. S.
821.] Motion of American Civil Liberties Union for
leave to file a brief as amicus curiae granted.
No. 71-224. SwENSON, WARDEN v. STIDHAM. C. A.
8th Cir. [Certiorari granted, 404 U. S. 1058.] Motion
of respondent for appointment of counsel granted. It is
ordered that Mark M. Hennelly, Esquire, of St. Louis,
Missouri, be, and he is hereby, appointed to serve as
counsel for respondent in this case.
No. 71-247. RABE v. WASHINGTON. Sup. Ct. Wash.
[Certiorari granted, 404 U.S. 909.] Motion of Morality
in Media, Inc., for leave to file a brief as amicus curiae
granted.
No. 71-404. COLTEN v. KENTUCKY. Appeal from Ct.
App. Ky. [Probable jurisdiction noted, 404 U.S. 1014.]
Motion of M. Curran Clem, Esquire, for leave to permit
Robert W. Willmott, Jr., Esquire, to argue orally pro
hac vice on behalf of appellee granted.
No. 71-801. CouNTY OF ALAMEDA ET AL. v. CALIFORNIA
WELFARE RIGHTS ORGANIZATION ET AL. Appeal from
Sup. Ct. Cal. The Solicitor General is invited to file a
brief in this case expressing the views of the United
States. Reported below: 5 Cal. 3d 730, 488 P. 2d 953.
No. 71-834. McCLANAHAN v. ARIZONA TAx CoMMISSION.
Appeal from Ct. App. Ariz. The Solicitor
General is invited to file a brief in this case expressing
the views of the United States. Reported below: 14
Ariz. App. 452, 484 P. 2d 221.
No. 71-5656. PHILPOTT ET AL. v. EssEx CouNTY WELFARE
BOARD. Sup. Ct. N. J. The Solicitor General is
invited to file a brief in this case expressing the views of
the United States. Reported below: 59 N. J. 75, 279
A. 2d 806.
914 OCTOBER TERM, 1971
February 22, 1972 405 U.S.
No. 71 5423. MOSES ET AL. v. WASHINGTON. Sup.
Ct. \V ash. The Solicitor General is invited to file a brief
in this case expressing the views of the l,; nited States.
Reported below: 79 \Vash. 2d 104, 483 P. 2d 832.
No. 71-982. HALL, SECRETARY OF HrMAN RELATIONS
AGENCY, ET AL. v. VILLA ET AL. Sup. Ct. Cal. Motion
of Attorney General of California for accelerated consideration
of petition and to postpone oral argument in
No. 70-5064 [Jefferson v. Hackney, probable jurisdiction
noted, 404 r. S. 820] denied. Reported below: 6 Cal. 3d
227, 490 P. 2d 1148.
Xo. 71 5078. PETERS v. KIFF, WARDEN. C. A. 5th
Cir. [Certiorari granted, 404 U. S. 964.) Motion of
NAACP Legal Defense & Educational Fund, Inc., for
leave to file a brief as amicus curiae granted. MR. Jus-
TICE MARSHALL took no part in the consideration or
decision of this motion.
~o. 71 - 5255. BARKER v. WINGO, WARDEN. C. A.
6th Cir. [Certiorari granted, 404 'C'. S. 1037.] Motion
of J. Chester Porter, Esquire, for leave to permit James
E. Milliman, Esquire, to argue orally pro hac vice on
behalf of petitioner granted.
~o. 71-5677. Jt'STICE v. VNITED STATES CoL'RT OF
APPEALS FOR THE FouRTH Crncu1T. Motion for leave
to file and petition for writ of habeas corpus denied.
No. 71-5582. GERARDI v. SuPERIOR CouRT OF CALIFORNIA,
CoeNTY OF Los ANGELES, ET AL. Motion for
leave to file petition for writ of mandamus denied.
Probable Jurisdiction iV oted
X o. 71 - 666. 'C°NITED STATES v. GLAXO GROUP LTD.
ET AL. Appeal from D. C. D. C. Probable jurisdiction
noted. Reported below: 328 F. Supp. 709.
ORDERS 915
405 u. s. February 22, 1972
No. 71- 703. UNITED STATES v. FIRST NATIONAL
BANCORPORATION, INc., ET AL. Appeal from D. C. Colo.
Probable jurisdiction noted. MR. JUSTICE POWELL took
no part in the consideration or decision of this case.
Reported below: 329 F. Supp. 1003.
No. 71-749. UNITED STATES v. KRAS. Appeal from
D. C. E. D. N. Y. Motion of appellee for leave to proceed
in forma pauperis granted. Probable jurisdiction
noted. Reported below: 331 F. Supp. 1207.
Certiorari Granted
No. 71-678. EXECUTIVE JET AVIATION, INC., ET AL. v.
CITY OF CLEVELAND ET AL. C. A. 6th Cir. Certiorari
granted. Reported below: 448 F. 2d 151.
No. 71-485. GOTTSCHALK, ACTING COMMISSIONER OF
PATENTS v. BENSON ET AL. C. C. P. A. Motions of
Information Industry Assn., International Business Machines
Corp., and Business Equipment Manufacturers
Assn. for leave to file briefs as amici curiae granted.
Certiorari granted. MR. JUSTICE STEWART, MR. JUSTICE
BLACKMUN, and MR. JUSTICE POWELL took no part in
the consideration or decision of these motions and petition.
Reported below: - C. C. P. A. (Pat.) -, 441
F. 2d 682.
No. 71-708. TRAFFICANTE ET AL. v. METROPOLITAN
LIFE INSURANCE Co. ET AL. C. A. 9th Cir. Motion to
dispense with printing petition and certiorari granted.
Reported below: 446 F . 2d 1158.
No. 71-827. HuGHES TooL Co. ET AL. v. 'TRANS
WORLD AIRLINES, lNc.; and
No. 71-830. TRANS WoRLD AIRLINES, INC. v. HuGHES
TooL Co. ET AL. C. A. 2d Cir. Certiorari granted.
Cases consolidated and a total of one hour allotted for
oral argument. Reported below: 449 F. 2d 51.
916 OCTOBER TERM, 1971
February 22, 1972 405 U.S.
No. 71-1017. GRAVEL v. UNITED STATES; and
No. 71-1026. UNITED STATES v. GRAVEL. C. A. 1st
Cir. Certiorari granted. Cases consolidated and a total
of one hour allotted for oral argument. Reported below:
455 F. 2d 753.
No. 71-5421. MIDGETT v. SLAYTON, PENITENTIARY
SUPERINTENDENT. C. A. 4th Cir. Motion for leave to
proceed in forma pauperis granted. Certiorari granted
and case set for oral argument with No. 71-5103 [Morrissey
v. Brewer, certiorari granted, 404 U. S. 999]. Reported
below: 443 F. 2d 1090.
No. 71-5685. JOHNSON ET AL. V. NEW YORK STATE
EDUCATION DEPARTMENT ET AL. C. A. 2d Cir. Motion
for leave to proceed in forma pauperis and certiorari
granted. Reported below: 449 F. 2d 871.
Certiorari Denied. (See also Nos. 71-735, 71-822, 71-
831, 71-838, 71-5558, and 71-746, supra.)
No. 70--5291. MoRGAN ET AL. v. NEIL, WARDEN.
C. A. 6th Cir. Certiorari denied.
No. 71-269. NATIONAL BREWING Co. v. CALDWELL
ET AL. C. A. 5th Cir. Certiorari denied. Reported below:
443 F. 2d 1044.
No. 71-403. GouGH INDUSTRIES, INc. v. RoTHMAN
ET AL. C. A. 9th Cir. Certiorari denied. Reported
below: 446 F. 2d 536.
No. 71-434. LOUISIANA MATERIALS Co., INC. v.
CRONVICH, SHERIFF, ET AL. Sup. Ct. La. Certiorari
denied. Reported below: 258 La. 1039, 249 So. 2d 123.
No. 71-521. DESERT OUTDOOR ADVERTISING, INC.,
ET AL. v. CouNTY OF RIVERSIDE. Ct. App. Cal., 4th App.
Dist. Certiorari denied.
ORDERS 917
405 U.S. February 22, 1972
No. 71-655. CROSBY ET AL. v. UNITED STATES. C. A.
2d Cir. Certiorari denied.
No. 71-667. GRoss ET AL. v. WALSH, Tm;STEE IN
BANKRUPTCY, ET AL. C. A. 3d Cir. Certiorari denied.
Reported below: 445 F. 2d 385.
No. 71-669. UNITED STATES STEEL CORP. v. UNITED
STATES; and
No. 71-673. UNITED STATES v. UNITED STATES STEEL
CORP. C. A. 2d Cir. Certiorari denied. Reported below:
445 F. 2d 520.
No. 71-670. SuNNY HILL FARMS DAIRY Co., INC. v.
BUTZ, SECRETARY OF AGRICULTURE. C. A. 8th Cir. Certiorari
denied. Reported below: 446 F. 2d 1124.
No. 71-671. WES'l'WOOD CHEMICAL, INc. v. OwENSCoRNING
FIBERGLAS CORP. C. A. 6th Cir. Certiorari
denied. Reported below: 445 F. 2d 911.
No. 71-676. COLEMAN v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
No. 71-677. WILCOX v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 450 F. 2d
1131.
No. 71-681. O'BRIEN v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 448 F. 2d 643.
No. 71- 682. MICHIGAN v. RANES. Sup. Ct. Mich.
Certiorari denied. Reported below: 385 Mich. 234, 188
N. W. 2d 568.
No. 71-684. CITY OF COLUMBUS ET AL. v. BOWER
ET AL. Sup. Ct. Ohio. Certiorari denied. Reported
below: 27 Ohio St. 2d 7, 271 N. E. 2d 860.
918 OCTOBER TERM, 1971
February 22, 1972 405 U.S.
No. 71- 686. BLANKENSHIP, ATTORNEY GENERAL OF
OKLAHOMA, ET AL. V. OKLAHOMA EX REL. WILSON. C. A.
10th Cir. Certiorari denied. Reported below: 447 F.
2d 687.
No. 71 - 687. SILVA v. UNITED STATES. C. A. 1st Cir.
Certiorari denied. Reported below: 449 F. 2d 145.
No. 71-688. LADucA v. UNITED STATES. C. A. 2d
Cir. Certiorari denied.
No. 71- 689. PENNSYLVANIA ET AL. v. BAKER ET AL.,
TRUSTEES IN REORGANIZATION. C. A. 3d Cir. Certiorari
denied. Reported below: 446 F. 2d 1109.
No. 71-690. ANDERSON ET ux. v. UNITED STATES.
C. A. 8th Cir. Certiorari denied. Reported below: 447
F. 2d 833.
~o. 71-693. REYNOLDS ET AL. v. TEXAS GULF SuLPHGR
Co. ET AL. C. A. 10th Cir. Certiorari denied. Reported
below: 446 F. 2d 90.
No. 71-694. LOUISIANA STATE DEPARTMENT OF HIGHWAYS
v. DARDAR ET AL. C. A. 5th Cir. Certiorari denied.
Reported below: 447 F. 2d 952.
No. 71-695. SILVERMAN v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 449 F. 2d 1341.
No. 71-696. ericA SQUARE NATIONAL BANK OF TtTLSA
v. WOODSON, TRUSTEE. C. A. 10th Cir. Certiorari denied.
Reported below: 447 F. 2d 241.
No. 71-698. EVANS v. DEPARTMENT OF TRANSPORTATION.
C. A. 5th Cir. Certiorari denied. Reported below:
446 F. 2d 821.
No. 71- 699. PONDER v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 444 F. 2d 816.
ORDERS 919
405 U.S. February 22, 1972
No. 71-700. PAIEWONSKY v. PAIEWONSKY. C. A. 3d
Cir. Certiorari denied. Reported below: 446 F. 2d 178.
No. 71-704. ScHANBARGER v. KELLOGG ET AL. App.
Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied.
Reported below: 35 App. Div. 2d 902, 315 N. Y. S. 2d
1013.
No. 71-706. BucKLEY ET AL. v. GIBNEY, DEPUTY DISTRICT
DIRECTOR OF IMMIGRATION AND NATURALIZATION
SERVICE, ET AL. C. A. 2d Cir. Certiorari denied. Reported
below: 449 F. 2d 1305.
No. 71-707. ARIZONA STATE DEPARTMENT OF PUBLIC
WELFARE V. DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE ET AL. C. A. 9th Cir. Certiorari denied. Reported
below: 449 F. 2d 456.
No. 71-710. ScHARFMAN v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 448 F. 2d 1352.
No. 71-712. BRIDGES ET AL. v. DAVIS ET AL. C. A.
9th Cir. Certiorari denied. Reported below: 443 F. 2d
970 and 445 F. 2d 1401.
No. 71-719. BRADLEY LUMBER Co., INC. v. SHARPE
ET AL. C. A. 4th Cir. Certiorari denied. Reported below:
446 F. 2d 152.
No. 71-721. FREEMAN v. VIRGINIA. Sup. Ct. Va.
Certiorari denied.
No. 71-722. AusTIN v. BERRY BROTHERS O1L FIELD
SERVICE, lNc., E'l' AL. C. A. 5th Cir. Certiorari denied.
Reported below: 446 F. 2d 887.
No. 71-727. REGISTER ET AL. v. GEORGIA. Ct. App.
Ga. Certiorari denied. Reported below: 124 Ga. App.
136, 183 S. E. 2d 68.
920 OCTOBER TERM, 1971
February 22, 1972 405 U.S.
No. 71-724. SKLAROFF v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 450 F. 2d 77.
No. 71-725. ScHOOR v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 447 F. 2d 1312.
No. 71- 731. THOMAS, SHERIFF , ET AL. v. MoRGAN.
C. A. 5th Cir. Certiorari denied. Reported below: 448
F. 2d 1356.
No. 71-733. ALLEN ET UX. V. STATE BOARD OF EDUCATION
OF NORTH CAROLINA ET AL. C. A. 4th Cir. Certiorari
denied. Reported below: 447 F. 2d 960.
No. 71-736. DRISCOLL v. UNITED STATES. C. A. 1st
Cir. Certiorari denied. Reported below: 449 F. 2d 894.
No. 71-742. Gouw ET ux:. v. AMERICAN WATER
WORKS SERVICE Co., INC., ET AL. Super. Ct. N. J. Certiorari
denied. Reported below: See 59 N. J . Super. 268,
281 A. 2d 530.
No. 71-743. LoCTITE CORP. v. BROADVIEW CHEMICAL
CORP. C. A. 2d Cir. Certiorari denied.
No. 71-750. WOLKOMIR El' AL. V. FEDERAL LABOR RELATIONS
COUNCIL ET AL. C. A. D. C. Cir. Certiorari
denied.
No. 71-752. THOMAS v. OHIO. Ct. App. Ohio, Lorain
County. Certiorari denied.
No. 71-753. AMERICAN EXPORT IsBRANDTSEN LINES,
INc. v. SuN SHIPBUILDING & DRY DocK Co. C. A. 3d
Cir. Certiorari denied. Reported below: 449 F. 2d 1267.
No. 71-761. THOMPSON v. BoARD OF COMMISSIONERS
OF OAK BROOK PARK DISTRICT oF Du PAGE CouNTY.
App. Ct. Ill., 2d Dist. Certiorari denied. Reported below:
132 Ill. App. 2d 178, 268 N. E. 2d 570.
ORDERS 921
405 U.S. February 22, 1972
No. 71-762. EnwARn HINES LUMBER Co. v. CENTEXWrnsTON
CoRP. C. A. 7th Cir. Certiorari denied. Reported
below: 447 F. 2d 585.
No. 71-764. ScoTT ET AL. v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 448 F. 2d
581.
No. 71-768. WILLIAMS ET ux. v. DILL ET AL. C. A.
5th Cir. Certiorari denied.
No. 71-774. BROCKSTEIN ET AL., DBA CHURCH AVENUE
PouLTRY v. NATIONWIDE MuTUAL INSURANCE Co.
C. A. 2d Cir. Certiorari denied. Reported below: 448
F. 2d 987.
No. 71-778. HERRIMAN ETAL. v. MrnwESTERN UNITED
LIFE INSURANCE Co. C. A. 7th Cir. Certiorari denied.
Reported below: 450 F. 2d 999.
No. 71-779. Dow v. CONNELL ET AL. C. A. 10th Cir.
Certiorari denied. Reported below: 448 F. 2d 763.
No. 71-780. JOHNSON v. DENNIS, DIRECTOR, DEPARTMENT
OF MOTOR VEHICLES. Sup. Ct. Neb. Certiorari
denied. Reported below: 187 Neb. 95, 187 N. W. 2d 605.
No. 71-781. CooK INDUSTRIES, INC. v. C. IToH & Co.
(AMERICA), INC. C. A. 2d Cir. Certiorari denied. Reported
below: 449 F. 2d 106.
No. 71-782. SMITH, SUPERINTENDENT OF INSURANCE,
ET AL. v. OHIO VALLEY INSURANCE Co. ET AL. Sup. Ct.
Ohio. Certiorari denied. Reported below: 27 Ohio St.
2d 268, 272 N. E. 2d 131.
No. 71-794. JOHNSON v. INDIANA. Sup. Ct. Ind.
Certiorari denied. Reported below: - Ind. - , 269
N. E. 2d 879.
922 OCTOBER TERM, 1971
February 22, 1972 405 U.S.
No. 71- 785. MARIEMONT, INc. v. MASHETER, Dr-
RECTOR OF HIGHWAYS. Sup. Ct. Ohio. Certiorari denied.
No. 71-795. SoeTHERN RAILWAY Co. v. CITY oF
MORRISTOWN. C. A. 6th Cir. Certiorari denied. Reported
below: 448 F. 2d 288.
Ko. 71-802. BARBARA v. JOHNSON, WARDEN. C. A.
6th Cir. Certiorari denied. Reported below: 449 F. 2d
1235.
No. 71-804. WoL:FF v. KoRHOLz 1-.;r AL. C. A. 7th Cir.
Certiorari denied. Reported below: 449 F. 2d 82.
No. 71 - 808. FLllOR WESTERN, INc. v. G & H OFFSHORE
TOWING Co., INC. C. A. 5th Cir. Certiorari
denied. Reported below: 447 F. 2d 35.
No. 71- 811. MARKS v. DEMOCRATIC PARTY OF THE
UNITED STATES ET AL. C. A. 9th Cir. Certiorari denied.
~O. 71 - 820. GENERAL l\foTORS CORP. V. JENKINS.
C. A. 5th Cir. Certiorari denied. Reported below: 446
F. 2d 377.
No. 71-823. JORGENSON v. UNITED STATES. C. A.
10th Cir. Certiorari denied. Reported below: 451 F.
2d 516.
No. 71-825. ENREsco, INc., ET AL. v. VALMONT INDFSTRIES,
INc., ET AL. C. A. 10th Cir. Certiorari denied.
Reported below: 446 F. 2d 1193.
No. 71 - 835. GIACALONE v. LucAs, SHERIFF. C. A.
6th Cir. Certiorari denied. Reported below: 445 F. 2d
1238.
No. 71-837. ROPER v. ILLINOIS. App. Ct. Ill., 1st
Dist. Certiorari denied. Reported below: - Ill. App.
2d -, 272 N. E. 2d 667.
ORDERS 923
405 U.S. February 22, 1972
No. 71-841. INDIANA HARBOR BELT RAILROAD Co. ET
AL. V. PUBLIC SERVICE COMMISSION OF INDIANA ET AL.
App. Ct. Ind. Certiorari denied. Reported below: -
Ind. App. - , 263 N. E. 2d 292.
No. 71-843. CouNTY OF WAYNE ET AL. v. JUDGES FOR
THE THIRD JumCIAL CIRCUIT OF MICHIGAN. Sup. Ct.
Mich. Certiorari denied. Reported below: 386 Mich. 1,
190 N. W. 2d 228.
No. 71-845. MARTIN OrL SERVICE, INC. v. ILLINOIS
DEPARTMENT OF REVENUE. Sup. Ct. Ill. Certiorari denied.
Reported below: 49 Ill. 2d 260, 273 N. E. 2d 823.
No. 71-848. TEDESCO v. CINCINNATI GAs & ELECTRIC
Co. C. A. 6th Cir. Certiorari denied. Reported below:
448 F. 2d 332.
No. 71-856. SECURITY SAVINGS & LOAN ASSN. ET AL.
v. WESTINGHOUSE CREDIT CORP. ET AL. C. A. 9th Cir.
Certiorari denied. Reported below: 447 F. 2d 387.
No. 71--877. SMITH v. NEW HAMPSHIRE. Sup. Ct.
N. H. Certiorari denied. Reported below: 111 N. H.
249, 279 A. 2d 913.
No. 71-887. WILBUR-ELLIS Co. v. THE CAPTAYANNIS
"S" ET AL. C. A. 9th Cir. Certiorari denied. Reported
below: 451 F. 2d 973.
No. 71-5242. CALLOWAY ET AL. v. LEEKE, CORRECTIONS
DIRECTOR, ET AL. Sup. Ct. S. C. Certiorari denied.
Reported below: 256 S. C. 167, 181 S. E. 2d 481.
No. 71-5384. CANTRELL v. CALIFORNIA ADULT Au-
THORITY. Sup. Ct. Cal. Certiorari denied.
No. 71-5409. WAINMAN v. CLARK, SHERIFF, ET AL.
Sup. Ct. Cal. Certiorari denied.
924 OCTOBER TERM, 1971
February 22, 1972 405 U.S.
No. 71-5371. BENNETT v. SouTH CAROLINA. Sup. Ct.
S. C. Certiorari denied. Reported below: 256 S. C. 234,
182 S. E. 2d 291.
No. 71- 5440. ROGERS v. ADAMS, WARDEN, ET AL.
C. A. 2d Cir. Certiorari denied.
No. 71-5441. INMAN v. NORTH CAROLINA. Sup. Ct.
N. C. Certiorari denied.
No. 71-5466. MITCHELL v. IDEAL COLLECTION SERVICE,
INc. App. Dept., Super. Ct. Cal., County of Los
Angeles. Certiorari denied.
No. 71-5549. YouNG v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 446 F. 2d 30.
No. 71-5551. DENTON v. UNITED STATES. C. A. 5th
Cir. Certiorari denied.
No. 71-5553. LAWTON v. TARR, NATIONAL DIRECTOR,
SELECTIVE SERVICE SYSTEM, ET AL. C. A. 4th Cir. Certiorari
denied. Reported below: 446 F. 2d 787.
No. 71-5554. HooD v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 443 F. 2d 380.
No. 71-5556. NEAL v. GEORGIA ET AL. C. A. 5th Cir.
Certiorari denied.
No. 71-5557. AusTIN v. UNITED STATES. C. A. 2d
Cir. Certiorari denied.
No. 71-5559. WILLIS v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 448 F. 2d 963.
No. 71-5561. WAGGONER v. CALIFORNIA. C. A. 9th
Cir. Certiorari denied.
No. 71-5563. MAGEE v. REAGAN, GovERNOR OF CALIFORNIA,
ET AL. C. A. 9th Cir. Certiorari denied.
ORDERS 925
405 U.S. February 22, 1972
No. 71-5566. RIDGILL v. OTIS, AcTING WARDEN.
C. A. 2d Cir. Certiorari denied.
No. 71-5568. BRYAN v. KuRCEVICH, WARDEN. C. A.
3d Cir. Certiorari denied.
No. 71-5569. HAGELBERGER v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 445 F.
2d 279.
No. 71-5573. ScoTT v. FIELD, MEN'S COLONY SUPERINTENDENT.
C. A. 9th Cir. Certiorari denied.
No. 71-5574. WADE v. CALIFORNIA. Ct. App. Cal.,
2d App. Dist. Certiorari denied. Reported below: 15
Cal. App. 3d 16, 92 Cal. Rptr. 750.
No. 71-5575. EvANS v. EvANS ET AL. Sup. Ct. N. C.
Certiorari denied. Reported below: 279 N. C. 394, 183
S. E. 2d 242 and 245.
No. 71-5576. BROWN v. UNITED STATES. C. A. 2d
Cir. Certiorari denied.
No. 71-5578. BATTLE v. MosELEY, WARDEN, ET AL.
C. A. 10th Cir. Certiorari denied.
No. 71-5579. Drnas v. DuNNE ET AL. Sup. Ct. Ill.
Certiorari denied.
No. 71-5584. OsBORN v. BRIERLEY, CORRECTIONAL
SUPERINTENDENT. C. A. 3d Cir. Certiorari denied.
No. 71-5586. Rmz v. BETO, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Certiorari denied. Reported below: 445
F. 2d 811.
No. 71-5589. SANCHEZ ET AL. v. UNITED STATES.
C. A. 5th Cir. Certiorari denied. Reported below: 449
F. 2d 204.
926 OCTOBER TERM, 1971
February 22, 1972 405 U.S.
No. 71-5588. TARLTON v. UNITED STATES. C. A.
6th Cir. Certiorari denied.
No. 71-5592. ORTIZ v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 448 F. 2d 164.
No. 71-5593. RAY v. FoREMAN ET AL. C. A. 6th Cir.
Certiorari denied. Reported below: 441 F. 2d 1266.
No. 71-5594. WHITE v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 448 F. 2d 250.
No. 71-5595. FAULKNER v. UNITED STATES. C. A.
9th Cir. Certiorari denied. Reported below: 447 F.
2d 869.
No. 71-5596. NEAL v. AMERICAN VETERANS COMMITTEE.
C. A. 5th Cir. Certiorari denied.
No. 71-5597. OSKINS v. COINER, WARDEN. Sup. Ct.
App. W. Va. Certiorari denied.
No. 71-5598. RozENFELD v. NEw YoRK BOARD OF
PAROLE. C. A. 2d Cir. Certiorari denied.
No. 71-5600. TRUDO v. UNITED STATES; and
No. 71-5612. TATRO v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. Reported below: 449 F. 2d 649.
No. 71-5602. ZrMMERMAN v. UNITED STATES. C. A.
2d Cir. Certiorari denied.
No. 71-5603. HUNTER v. CITY SOLICITOR OF PHILADELPHIA
ET AL. C. A. 3d Cir. Certiorari denied. Reported
below: 444 F. 2d 1395.
},fo. 71-5604. COHEN V. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 448 F. 2d 654.
No. 71-5606. Wn,LIAMS v. ROGERS, SECRETARY OF
STATE, ET AL. C. A. 8th Cir. Certiorari denied. Reported
below: 449 F. 2d 513.
ORDERS 927
405 U.S. February 22, 1972
No. 71-5607. SPIVEY v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. Reported below: 448 F. 2d 390.
No. 71-5608. GUILE v. CALIFORNIA. Ct. App. Cal.,
4th App. Dist. Certiorari denied.
No. 71-5613. LUMSDEN v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 449 F. 2d 154.
No. 71-5614. CoLE v. UNITED STATES. C. A. 9th Cir.
Certiorari denied. Reported below: 448 F. 2d 415.
No. 71-5615. SULLIVAN v. UNITED STATES. C. A. 2d
Cir. Certiorari denied.
No. 71-5616. BoYD v. KANSAS. Sup. Ct. Kan. Certiorari
denied. Reported belov.r: 206 Kan. 597, 481 P.
2d 1015.
No. 71-5617. AGERS v. \VASHINGTON. Sup. Ct. Wash.
Certiorari denied.
No. 71- 5618. FINISTER v. WASHINGTON. Sup. Ct.
Wash. Certiorari denied.
No. 71-5619. SIMS v. McCARTHY, MEN'S COLONY
SUPERINTENDENT. C. A. 9th Cir. Certiorari denied.
No. 71-5620. ROBINSON, AKA LOPER v. UNITED STATES.
C. A. 8th Cir. Certiorari denied. Reported below: 448
F. 2d 715.
No. 71-5621. BASKIN v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 450F. 2d 1057.
No. 71-5622. GAINES ET AL. v. UNITED STATES. C. A.
3d Cir. Certiorari denied. Reported below: 450 F. 2d
186.
Ko. 71- 5623. ANDERSON v. UNITED STATES. C. A.
3d Cir. Certiorari denied. Reported below: 448 F. 2d
1379.
928 OCTOBER TERM, 1971
February 22, 1972 405 u. s.
No. 71 - 5626. CALABRO v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 449 F. 2d 885.
No. 71-5627. McDONALD v. WELLONS ET AL. C. A.
6th Cir. Certiorari denied.
~o. 71-5628. JACKSON, AKA ROBBINS v. UNITED
STATES. C. A. 5th Cir. Certiorari denied. Reported
below: 451 F. 2d 281.
No. 71-5629. JOHNSON v. SALISBURY, CORRECTIONAL
SUPERINTENDENT. C. A. 6th Cir. Certiorari denied.
Reported below: 448 F. 2d 374.
No. 71-5630. D1RosA v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 448 F. 2d 863.
No. 71-5631. ScO'I"T v. HILL ET AL. C. A. 6th Cir.
Certiorari denied. Reported below: 449 F. 2d 634.
No. 71-5632. MEMOLI v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 449 F. 2d 160.
No. 71-5634. WHITEHEAD v. MICHIGAN. Sup. Ct.
Mich. Certiorari denied.
No. 71- 5635. JOHNSON V. MANCUSI, CORRECTIONAL
SGPERINTENDENT. App. Div., Sup. Ct. N. Y., 4th Jud.
Dept. Certiorari denied.
:N°O. 71-5636. MOSCA.TELLO ET AL. V. UNITED STATES.
C. A. 7th Cir. Certiorari denied. Reported below: 450
F. 2d 985.
No. 71-5637. UNDERWOOD v. M1ssouR1. Sup. Ct.
Mo. Certiorari denied. Reported below: 470 S. W. 2d
485.
No. 71-5639. Poss v. SMITH, WARDEN. Sup. Ct. Ga.
Certiorari denied. Reported below: 228 Ga. 168, 184
S. E. 2d 465.
ORDERS 929
405 U.S. February 22, 1972
No. 71-5640. FITZGERALD v. CIVIL SERVICE COMMISSION
OF RADNOR TOWNSHIP. Super. Ct. Pa. Certiorari
denied.
No. 71-5641. CARTER v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 448 F. 2d
1245.
No. 71-5642. FouNTAIN v. UNITED STATES. C. A.
8th Cir. Certiorari denied. Reported below: 449 F.
2d 629.
No. 71-5643. CASELLA v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 449 F. 2d 277.
No. 71-5644. EDWARDS v. FISHMAN. C. A. 7th Cir.
Certiorari denied.
No. 71- 5646. BELL v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied.
No. 71-5649. COLABELLA v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 448 F. 2d 1299.
No. 71-,5650. NoRTHERN v. TEXAS. Ct. Crim. App.
Tex. Certiorari denied.
No. 71-5651. TREVINO v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 446 F. 2d 45.
No. 71-5653. PRESSLEY v. UNITED STATES. C. A. 5th
Cir. Certiorari denied.
No. 71-5654. WINKFIELD v. UNITED STATES. C. A.
10th Cir. Certiorari denied.
No. 71-5655. OVERTON v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 448 F. 2d 1381.
No. 71- 5658. SARRAMEDA v. SECRETARY OF HEALTH,
EDUCATION, AND WELFARE. C. A. 1st Cir. Certiorari
denied.
930 OCTOBER TERM, 1971
February 22, 1972 405 u. s.
No. 71-5659. BRooKs E'l' AL. v. UNITED STATES. C. A.
3d Cir. Certiorari denied. Reported below: 449 F. 2d
1263.
No. 71-5660. FAERIES v. PARKER, WARDEN. C. A. 3d
Cir. Certiorari denied.
N 0. 71-5661. KELSEY V. UNITED STATES. C. A. 10th
Cir. Certiorari denied.
No. 71-5662. GRAY v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
No. 71-5663. TAYLOR v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. Reported below: 448 F. 2d 1280.
No. 71-5664. BucHANAN v. TEXAS. Ct. Crim. App.
Tex. Certiorari denied. Reported below: 471 S. W. 2d
401.
No. 71-5665. EARLES v. OHIO. Sup. Ct. Ohio. Certiorari
denied.
No. 71-5667. AVERY, AKA KENYATTA i,, UNITED
STATES. C. A. 4th Cir. Certiorari denied. Reported
below: 447 F. 2d 978.
No. 71-5668. SERRANO v. HocKER, WARDEN. C. A.
9th Cir. Certiorari denied. Reported below: 444 F. 2d
1093.
No. 71- 5669. WRIGHT v. BATESON, INSURANCE COMMISSIONER.
Ct. App. Ore. Certiorari denied. Reported
below: 5 Ore. App. 628, 485 P. 2d 641.
No. 71-5670. ABARCA-ESPINOSA v. UNITED STATES.
C. A. 9th Cir. Certiorari denied. Reported below: 440
F. 2d 1354.
No. 71-5673. JENNINGS v. ILLINOIS. App. Ct. Ill.,
2d Dist. Certiorari denied. Reported below: 132 Ill.
App. 2d 147, 267 N. E. 2d 511.
ORDERS 931
405 u. s. February 22, 1972
No. 71-5674. LOPEZ v. UNITED STATES. C. A. 9th Cir.
Certiorari denied. Reported below: 450 F. 2d 169.
No. 71-5676. YouNG v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
No. 71-5678. BULLOCK v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
No. 71-5680. MURPHY v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
No. 71-5681. McKILLOP v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
No. 71- 5684. PowELEIT v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
No. 71-5688. WooDARD v. UNITED STATES; and
No. 71-5727. COLE v. UNITED STATES. C. A. 8th Cir.
Certiorari denied. Reported below: 449 F. 2d 194.
No. 71-5689. NACHBAUR v. HERMAN. C. A. 2d Cir.
Certiorari denied.
No. 71-5691. HUFFMAN v. MooRE, WARDEN. C. A.
6th Cir. Certiorari denied.
No. 71-5692. BROWN v. Omo. Sup. Ct. Ohio. Certiorari
denied.
~o. 71-5694. HUNTER v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 449 F. 2d 156.
No. 71- 5695. PICKING v. STATE FINANCE CoRP. ET AL.
C. A. 4th Cir. Certiorari denied. Reported below: 450
F. 2d 881.
No. 71-5696. TEAGUE v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
No. 71-5699. ALKES v. U.S. BOARD OF PAROLE ET AL.
C. A. 10th Cir. Certiorari denied.
932 OCTOBER TERM, 1971
February 22, 1972 405 U.S.
No. 71-5698. CARTER v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied. Reported below: 144 U.S. App.
D. C. 193, 445 F. 2d 669.
No. 71-5700. HARRIS v. UNITED STATES; and
No. 71-5717. Cox v. UNITED STATES. C. A. 4th Cir.
Certiorari denied.
No. 71-5702. WAUGH v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
No. 71-5703. SMITH ET AL. v. UNITED STATES. C. A.
3d Cir. Certiorari denied. Reported below: 450 F. 2d
312.
No. 71-5704. RoLLINS v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
No. 71-5705. TROY v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 446 F. 2d
358.
No. 71-5706. HEARD v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
No. 71-5708. LusTMAN v. CALIFORNIA. Ct. App.
Cal., 2d App. Dist. Certiorari denied. Reported below:
13 Cal. App. 3d 278, 91 Cal. Rptr. 548.
No. 71-5712. YouNG v. MARYLAND. Ct. Sp. App.
Md. Certiorari denied.
No. 71-5715. BARTLETT v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 449 F. 2d 700.
No. 71-5716. WION v. UNITED STATES ET AL. C. A.
10th Cir. Certiorari denied.
No. 71-5718. BECKER v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 449 F. 2d 156.
ORDERS 933
405 U.S. February 22, 1972
No. 71-5721. OLLER v. CALIFORNIA. Ct. App. Cal.,
5th App. Dist. Certiorari denied.
No. 71-5724. AMATO v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
No. 71-5725. MARRERO v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 450 F. 2d 373.
No. 71-5728. WELP v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 446 F. 2d 867.
No. 71-5732. ENGLAND v. CALIFORNIA. Ct. App.
Cal., 2d App. Dist. Certiorari denied.
No. 71-5733. COLEY v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied.
No. 70-272. KATZ ET AL. v. McAuLAY ET AL. C. A.
2d Cir. Certiorari denied. MR. JUSTICE DOUGLAS,
MR. JusTICE BRENNAN, and MR. JUSTICE MARSHALL are
of the opinion that certiorari should be granted. Reported
below: 438 F. 2d 1058.
No. 71-183. AGUA CALIENTE BAND OF MISSION INDIANS
ET AL. v. COUNTY OF RIVERSIDE, CALIFORNIA.
C. A. 9th Cir. Certiorari denied. MR. JusTICE DOUGLAS,
MR. JusTrCE BRENNAN, and MR. JUSTICE MARSHALL
are of the opinion that certiorari should be granted. Reported
below: 442 F. 2d 1184.
No. 71-659. DEVILLIERS v. ATLAS CoRP. C. A. 10th
Cir. Certiorari denied. MR. JUSTICE DouGLAS is of the
opinion that certiorari should be granted. Reported below:
447 F. 2d 799.
No. 71-661. DAVIS v. 1:NITED STATES. C. A. 9th Cir.
Certiorari denied. MR. JusTICE DouGLAS is of the opinion
that certiorari should be granted. Reported below:
447 F. 2d 1376.
934 OCTOBER TERM, 1971
February 22, 1972 405 u. s.
Ko. 71-680. FERGUSON, U. S. DISTRICT JUDGE v.
UNITED STATES. C. A. 9th Cir. Certiorari denied. MR .
.JusTICE DouGLAS is of the opinion that certiorari should
be granted. Reported below: 448 F. 2d 169.
Ko. 71-683. INSURANCE COMPANY OF NoRTH AMERICA
v. CONTINENTAL OrL Co. ET AL. C. A. 5th Cir.
Certiorari denied. MR. JusTICE DouGLAS is of the opinion
that certiorari should be granted. Reported below:
449 F. 2d 1209.
Ko. 71- 714. FARINAS v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. MR. JusTICE DouGLAS is of the
opinion that certiorari should be granted. Reported belmv:
448 F. 2d 1334.
No. 71-723. MEISTER v. DALTON. Sup. Ct. Wis.
Certiorari denied. MR. JcsTICE DouGLAS is of the opinion
that certiorari should be granted. Reported below:
52 Wis. 2d 173, 188 N. W. 2d 494.
No. 71-748. KANE v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. MR. JusncE DouGLAS is of the opinion
that certiorari should be granted. Reported below:
450 F. 2d 77.
No. 71-755. TARABOCCHIA v. ZIM ISRAEL NAVIGATION
Co., LTD. C. A. 2d Cir. Certiorari denied. MR. J us-
TICE DOUGLAS is of the opinion that certiorari should
be granted. Reported below: 446 F. 2d 1375.
No. 71-5548. MuNDS v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. MR. JusTICE DouGLAS is of
the opinion that certiorari should be granted. Reported
below: 441 F. 2d 1165.
No. 71-5555. UPSHAW v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. MR. JusTICE DouGLAS is of the
opinion that certiorari should be granted. Reported below:
448 F. 2d 1218.
ORDERS 935
405 U.S. February 22, 1972
No. 71-741. MESSENGER v. INTERNATIONAL UNION OF
OPERATING ENGINEERS, LocAL 4, ET AL. C. A. 1st Cir.
Certiorari denied. Mn. JrsTICE DouGLAS is of the opinion
that certiorari should be granted.
No. 71-5562. HALL v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. Ma. JUSTICE DoL'GLAS is of the opinion
that certiorari should be granted. Reported below:
448 F. 2d 114.
No. 71-5565. HUTCHINGS v. TEXAS. Ct. Crim. App.
Tex. Certiorari denied. MR. JUSTICE DouGLAS is of the
opinion that certiorari should be granted. Reported below:
466 S. W. 2d 584.
No. 71-5599. \VHEELER v. WARDEN, LEAVENWORTH
PENITENTIARY. C. A. 10th Cir. Certiorari denied.
Mn. JUSTICE DOUGLAS is of the opinion that certiorari
should be granted.
No. 71-5633. OBA v. UNITED STATES. C. A. 9th Cir.
Certiorari denied. MR. JUSTICE DouGLAS is of the opinion
that certiorari should be granted. Reported below:
448 F. 2d 892.
No. 71-5638. MunRAY v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Mn. JUSTICE DOUGLAS is of the
opinion that certiorari should be granted. Reported
below: 452 F. 2d 503.
No. 71- 5683. NoRDLOF v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. MR. JusTICE DouGLAS is of the
opinion that certiorari should be granted.
No. 71-5697. PowELL v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. MR. JUSTICE DOUGLAS is of
the opinion that certiorari should be granted. Reported
below: 449 F. 2d 706.
936 OCTOBER TERM, 1971
February 22, 1972 405 U.S.
No. 71-654. LovisI v. VIRGINIA. Sup. Ct. Va. Motion
of respondent to dispense with printing brief
granted. Certiorari denied.
No. 71-705. GALVESTON CITY Co. ET AL. v. UNITED
STATES. C. A. 5th Cir. Certiorari denied. MR. J us-
TICE DouGLAS took no part in the consideration or decision
of this petition. Reported below: 446 F. 2d 1030.
No. 71-713. VIRGINIA IMPRESSION PRODUCTS Co., INc.
v. SCM CoRP. C. A. 4th Cir. Certiorari denied. MR.
JusTICE DouGLAS is of the opinion that certiorari should
be granted. MR. JUSTICE POWELL took no part in the
consideration or decision of this petition. Reported below:
448 F. 2d 262.
No. 71-717. KROZAK v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. MR. JUSTICE MARSHALL took
no part in the consideration or decision of this petition.
No. 71-751. BOARD OF EDUCATION OF LITTLE ROCK
ScHoOL DISTRICT ET AL. v. CLARK ET AL. C. A. 8th Cir.
Certiorari denied. MR. JusTICE MARSHALL took no part
in the consideration or decision of this petition. Reported
below: 449 F. 2d 493.
No. 71-729. SHEPPARD v. WASHINGTON. Ct. App.
Wash. Motion to dispense with printing petition
granted. Certiorari denied.
No. 71-744. ADDONIZIO v. UNITED STATES;
No. 71-745. LAMORTE v. UNITED STATES;
No. 71-754. VrcARO v. UNITED STATES; and
No. 71-756. BIANCONE v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 451 F. 2d 49.
MR. JUSTICE DouGLAS, dissenting.
At the trial involved in these cases there was much
evidence of corrupt practices by the administration of
petitioner Addonizio during his tenure as mayor of
Newark, New Jersey. But the question posed to the
ORDERS 937
936 DouGLAS, J., dissenting
jury below was not whether these petitioners had engaged
in corrupt practices, but the narrower issue of
whether they had entered into and executed a criminal
agreement to extract kickbacks from public contractors
through threats of physical harm or economic ruin in
violation of 18 U. S. C. § 1951.1 Although the petitioners
were charged with 65 substantive acts of coercive
extraction of kickbacks, the key issue in the trial
was who, if anyone, had conspired to commit these
acts. Absent a finding that such a confederation had
been formed, most of the evidence which damaged the
petitioners could not have been introduced at all inasmuch
as this evidence was hearsay admitted provisionally
under the so-called coconspirator exception.
That the jury found a conspiracy to have existed, however,
was under the circumstances of this trial the
unsurprising and virtually inevitable result of the many
disabilities imposed upon an accused by the ordeal of
a multi-defendant conspiracy prosecution.2
1 Section 1951 provides:
"(a) Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in commerce,
by robbery or extortion or attempts or conspires so to do, or commits
or threatens physical violence to any person or property in furtherance
of a plan or purpose to do anything in violation of this section
shall be fined not more than $10,000 or imprisoned not more than
twenty years, or both.
"(b) (2) The term 'extortion' means the obtaining of property
from another, with his consent, induced by wrongful use of actual
or threatened force, violence, or fear, or under color of official right."
2 The potential for abuse of multi-defendant conspiracy proceedings
has been discussed in O'Dougherty, Prosecution and Defense
Under Conspiracy Indictments, 9 Brooklyn L. Rev. 263 (1940); Note,
Developments in the Law: Criminal Conspiracy, 72 Harv. L. Rev.
922, 983 (1959); Wessel, Procedural Safeguards for the Mass Conspiracy
Trial, 48 A. B. A. J. 628 (1962); Goldstein, The Krulewitch
Warning: Guilt By Association, 54 Geo. L. J. 133 (1965).
938 OCTOBER TERM, 1971
DoUGLAS, J., dissenting 405 U.S.
Mr. Justice Jackson catalogued many of these disabilities
in his well-known concurrence in Krulewitch v.
United States, 336 U.S. 440,446 (1949), reversing a conspiracy
conviction, where he concluded that the prevailing
"loose practice as to [ the conspiracy] offense
constitutes a serious threat to fairness in our
administration of justice." He criticized the tendency
of courts to dispense "with even the necessity to infer
any definite agreement, although that is the gist of the
offense." Id., at 452. As to the procedural evils of this
device he found that the risk to a codefendant of guilt
by association was abnormally high:
"A co-defendant in a conspiracy trial occupies
an uneasy seat. There generally will be evidence
of wrongdoing by somebody. It is difficult for the
individual to make his own case stand on its own
merits in the minds of jurors who are ready to
believe that birds of a feather are flocked together.
If he is silent, he is taken to admit it and if, as
often happens, co-defendants can be prodded into
accusing or contradicting each other, they convict
each other." Id., at 454.
Mr. Justice Jackson also regretted the wide leeway that
prosecutors enjoyed in the broad scope of evidence admissible
to prove conspiracy ( and consequently to prove
substantive acts as well). Under conspiracy law, the
declarations and acts of any confederate in furtherance
of the joint project are attributable to and admissible
against all of its participants. This is true even if the
declarant is not available for cross-examination. Moreover,
such statements are admissible "subject to connection"
by the prosecutor later in the trial. At the
close of the Government's case, for example, the judge
may believe that the Government failed to present a
jury question as to a defendant's participation in a
ORDERS 939
936 DoUGLAS, J., dissenting
collective criminal plot. In such a case, the judge must
ask the jury to disregard the provisionally admitted
hearsay. Obviously, however, it will be difficult in a
lengthy trial (such as this one filling 5,500 pages of
transcript) for jurors to excise the stricken testimony
from their memories. In the alternative case where
the judge believes that a jury question has been presented
as to a defendant's participation in a criminal
enterprise, the jury is permitted to consider the provisionally
admitted matter in determining whether or
not a defendant was a conspirator. In other words,
the jury is allowed to assume its ultimate conclusion.
Mr. Justice Jackson was particularly sensitive to the
abuse potential in this vicious logic:
"When the trial starts, the accused feels the full
impact of the conspiracy strategy. Strictly, the
prosecution should first establish prima facie the
conspiracy and identify the conspirators, after which
evidence of acts and declarations of each in the
course of its execution are admissible against all.
But the order of proof of so sprawling a charge
is difficult for a judge to control. As a practical
matter, the accused often is confronted with a
hodgepodge of acts and statements by others which
he may never have authorized or intended or even
known about, but which help to persuade the jury
of existence of the conspiracy itself. In other
words, a conspiracy often is proved by evidence that
is admissible only upon assumption that conspiracy
existed. The naive assumption that prejudicial effects
can be overcome by instructions to the jury,
cf. Blumenthal v. United States, 332 U. S. 539,
559, all practicing lawyers know to be unmitigated
fiction. See Skidmore v. Baltimore & Ohio R. Co.,
167 F. 2d 54." Id., at 453.
940 OCTOBER TERM, 1971
DoUGLAs, J., dissenting 405 U.S.
There are other disabilities. Often testimony will be
receivable only against a particular codefendant, yet it
may also inculpate another accused such as where (a) a
codefendant "opens the door" to prejudicial evidence
by placing his reputation in issue,3 (b) a codefendant
wants to place before the jury information which
is helpful to him but is damaging to other defendants,
or ( c) the Government desires to offer evidence admissible
against less than all of the codefendants. Cautionary
instructions, of course, are routinely given where such
circumstances arise but we have often recognized the
inability of jurors to compartmentalize information according
to defendants. Bruton v. United States, 391
U. S. 123 (1968). See also Jackson v. Denno, 378 U. S.
368, 388 (1964); Krulewitch v. United States, supra, at
3 An example of a single defendant's opening the door to prosecution
rebuttal prejudicial to other defendants was presented in the
famous Apalachin trial (United States v. Bufalino, 285 F. 2d 408
(CA2 1960)):
"The reputation of the Apalachin delegates and the character of
the meeting had been the subject of much public comment during
the two years before trial. Many reports had described the lengthy
criminal records of some of the delegates, had characterized the
meeting as a convention of the 'Mafia' a.nd had given other lurid
details of what had occurred. None of this evidence was considered
sufficiently material to the charge to warrant its introduction at trial.
"Toward the end of the trial, one of the defendants placed his
reputation squarely in issue. He called witnesses who testified to his
excellent reputation for truth and veracity at the time of the trial.
"Ordinarily it would have been entirely proper to attempt to refute
this testimony by cross-examining with reference to the earlier publicity;
the defendant himself had elsewhere complained about how
much it had hurt his reputation. However, such evidence might
have had equally serious adverse effects upon the nineteen co-defendants,
who had done nothing to open the door against themselves."
Wessel, Procedural Safeguards for the Mass Conspiracy Trial, supra,
n. 2, at 631.
ORDERS 941
936 DoUGLAs, J ., dissenting
453 ( quoted above). This shortcoming of the jury is
compounded when, as here, the jury is also asked to digest
voluminous testimony.
A victim of the multi-defendant conspiracy trial has
fewer options for trial strategy than the ordinary defendant
tried alone. Counsel may reluctantly give up
the option of pointing the accusing finger at his client's
codefendants in order to obtain similar concessions from
other trial counsel. Counsel must also divert his preparation
in part toward generating possible responses to
evidence which may be admissible only against other
codefendants. As for the defendant, he may be put to
the choice of hiring less experienced counsel or less
actively pursuing discovery or investigation because of
the higher legal expenses imposed by longer joint trials.
Furthermore, although an accused normally has "the
right to present his own witnesses to establish a defense,"
Washington v. Texas, 388 U. S. 14, 19 (1967),
an accused in a mass conspiracy trial may not put on
his codefendants without their prior waivers of their
absolute rights not to testify!
All of these oppressive features were present in various
degrees in this trial. But, in particular, the most
onerous burden cast upon these petitioners was their
inability to cross-examine each other as to comments
which Government witnesses said they had heard them
utter. The Court of Appeals recognized that "[t]here
4 Even at a severed trial of only one defendant, another alleged
coconspirator may, if called to testify, invoke his privilege against
self-incrimination. Where the severed trial is delayed until after
the acquittal or finalized conviction of the witness, however, invocation
of the privilege would be improper. In any event, even if the
witness refused to answer questions, the defendant would at least
obtain whatever inference of innocence might result from the apparent
guilt of the witness.
942 OCTOBER TERM, 1971
DouoLAS, J., dissenting 405 u. s.
was much testimony as to statements made by various
co-conspirators during the course, and in furtherance of
the conspiracy." 451 F. 2d 49, 71. For example, one
important prosecution witness testified that he had been
a contractor hired by the city administration and that
one of the accused conspirators, "Tony Boy" Boiardo,
had told him: "You pay me the 10% ... I take care
of the Mayor. I take care of the Council." (App.
2611a.) The lawyer for the former mayor, however,
was not permitted to put Boiardo on the stand and to
ask him whether Addonizio had, in fact, entered into
an agreement with him to coerce kickbacks. This
handicap of an accused is at war with the holdings of
this Court that a defendant should be permitted to confront
his accusers, especially where, as here, their declarations
might have been purposely misleading or selfserving.
Pointer v. Texas, 380 U. S. 400, 407 (1965);
Douglas v. Alabama, 380 U. S. 415 (1965); Brookhart
v. Janu;, 384 U. S. 1 (1966); Bruton v. United States,
supra; Barber v. Page, 390 U. S. 719 (1968); Roberts
v. Russell, 392 U. S. 293 (1968). Dutton v. Evans,
400 U. S. 74 ( 1970), is not inconsistent with this proposition.
There the Court found that the hearsay was probably
reliable. "[T]he circumstances under which [ the
declarantJ made the statement were such as to give
reason to suppose that [he] did not misrepresent [his
coconspirator's] involvement in the crime." Id., at 89.
On the other hand, involved here were declarants, as
mentioned earlier, who might have been motivated to
misrepresent the roles of other parties in order to induce
contractors, such as Rigo (the Government's key witness),
to make kickbacks. Moreover, in Dutton the
hearsay was "of peripheral significance at most," whereas
here much of the case against the petitioners, as the
ORDERS 943
936 DouGLAs, J., dissenting
Court of Appeals pointed out, was admitted under the
coconspirator exception to the hearsay rule.5
In addition, the petitioners were deprived of the right
to cross-examine codefendant Gordon ( who is not one
of the petitioners). He had testified at the prior grand
jury proceeding and that testimony was introduced at
trial by the Government to corroborate the story of
the Government's key witness, Rigo, as to various kickback
transactions. The circumstances at trial were substantially
similar to those involved in Bruton except
that Gordon's grand jury remarks did not directly mention
his codefendants. Normally, that difference would
be sufficient to support the lower court's finding that
Bruton was inapposite but for the fact that the Government's
case against all of the defendants turned upon
Rigo's credibility. On cross-examination of Rigo, the
codefendants had relentlessly attacked his credibility.
But when the Government introduced the grand jury
transcript in rebuttal, the defense challenge was completely
terminated because Gordon, who was also on
trial, could not be called to the stand. The judge, of
course, gave instructions to the jury to consider the
impact of the transcript upon Rigo's credibility only
when assessing Gordon's guilt, but it is doubtful that
the jurors could faithfully adhere to the delicate logic
that Rigo may have told the truth as to Gordon but
5 The Dutton plurality opinion found the coconspirator hearsay
had played a minor role in the trial:
"In the trial of this case no less than 20 witnesses appeared and
testified for the prosecution. Evans' counsel was given full opportunity
to cross-examine every one of them. The most important witness,
by far, wa.s the eyewitness who described all the details of the
triple murder and who was cross-examined at great length. Of the
19 other witnesses, the testimony of but a single one is at issue here."
Dutton v. Evam, 400 U. S. 74, 87 ( 1970).
944 OCTOBER TERM, 1971
February 22, 1972 405 U.S.
may have lied as to his codefendants. The contrary
conclusion, to borrow from Mr. Justice Jackson, would be
"unmitigated fiction." Krulewitch v. United States,
supra, at 453.
In light of the claims of prejudice committed in this
multi-defendant conspiracy trial, I would grant certiorari
to consider whether the extensive reliance by the prosecutor
on the coconspirator exception to the hearsay rule
and the admission of the Gordon transcript deprived these
petitioners of constitutional rights.
No. 71-888. WYMAN, COMMISSIONER OF NEw YORK
DEPARTMENT OF SOCIAL SERVICES v. ALMENARES ET AL.
C. A. 2d Cir. Motions of respondents for leave to proceed
in forrna pauperis granted. Certiorari denied.
Reported below: 453 F. 2d 1075.
No. 71- 5547. McCRAY v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. Reported below: See 334 F.
2d 760.
MR. JUSTICE DouGLAS, dissenting.
Petitioner was found guilty of five violations of the
Mann Act and sentenced to a total of 10 years-some of
the sentences being consecutive and some concurrent.
There is no doubt that petitioner transported the same
woman to various cities over a period of a year for
prostitution. There were five counts, two of which
charged transportation in commerce of the named woman
between designated cities for the purpose of prostitution.
Each was an offense under 18 U.S. C. § 2421, which provides
a fine of $5,000 or five years in prison, or both.1
1 Section 2421 provides:
"Whoever knowingly transports in interstate or foreign commerce,
or in the District of Columbia or in any Territory or Possession of
the United States, any woman or girl for the purpose of prostitution
or debauchery, or for any other immoral purpose, or with the intent
and purpose to induce, entice, or compel such woman or girl to beORDERS
945
944 DouoLAs, J., dissenting
Three of the five counts charged that petitioner persuaded,
induced, enticed, or coerced this same woman
"to go from one place to another" in interstate commerce
for the purpose of prostitution, each count charging an
offense under 18 U. S. C. § 2422 which carries a fine of
$5,000 or five years in prison, or both.2
As a matter of semantics there is an offense under
§ 2421 whenever a person "transports" a woman for the
illegal purpose and there is one under § 2422 when a
come a prostitute or to give herself up to debauchery, or to engage
in any other immoral practice; or
"Whoever knowingly procures or obtains any ticket or tickets, or
any form of transportation or evidence of the right thereto, to be
used by any woman or girl in interstate or foreign commerce, or in
the District of Columbia or any Territory or Possession of the United
States, in going to any place for the purpose of prostitution or debauchery,
or for any other immoral purpose, or with the intent or
purpose on the part of such person to induce, entice, or compel her
to give herself up to the practice of prostitution, or to give herself
up to debauchery, or any other immoral practice, whereby any such
woman or girl shall be transported in interstate or foreign commerce,
or in the District of Columbia or any Territory or Possession of the
United States-
"Shall be fined not more than $5,000 or imprisoned not more than
five years, or both."
2 Section 2422 provides:
"Whoever knowingly persuades, induces, entices, or coerces any
woman or girl to go from one place to another in interstate or foreign
commerce, or in the District of Columbia or in any Territory or
Possession of the United States, for the purpose of prostitution or
debauchery, or for any other immoral purpose, or with the intent
and purpose on the part of such person that such woman or girl
shall engage in the practice of prostitution or debauchery, or any
other immoral practice, whether with or without her consent, and
thereby knowingly causes such woman or girl to go and to be
carried or transported as a passenger upon the line or route of any
common carrier or carriers in interstate or foreign commerr.e, or in
the District of Columbia or in any Territory or Possession of the
United States, shall be fined not more than $5,000 or imprisoned
not more than five years, or both."
946 OCTOBER TERM, 1971
DOUGLAS, J., dissenting 405 U.S.
person "induces" a woman to move interstate for the
purpose of prostitution. The two sections seem complementary.
But there are two substantial questions:
First, can § 2422 be fragmented into a series of acts,
each being described as an inducement to the same woman
to move interstate to live the life of a prostitute? Or
within the meaning of the Act is she "induced" only
once in the series?
Second, where, as here, petitioner and the woman
move around the country in one continuous enterprise,
is there a separate offense each time they cross a state
line?
In Bell v. United States, 349 U. S. 81, we held that
where a man for purposes of prostitution took two women
across a state line on the same trip and in the same vehicle,
he committed only a single offense. We said:
''When Congress leaves to the Judiciary the task of
imputing to Congress an undeclared will, the ambiguity
should be resolved in favor of lenity." Id.,
at 83.
A man who induces a woman to go on a prostitution
tour certainly violates the Act. But what kind of inducement
fits the Act? Here this woman, a divorcee, merely
got instruction from petitioner as to how to work a cocktail
lounge and bar. The legislative history of the Act
shows a purpose "to prevent panderers and procurers
from compelling ... women and girls against their will
and desire to enter and continue in a life of prostitution.''
S. Rep. No. 886, 61st Cong., 2d Sess., 10 (1910). It was
supposed to reach those "who, by means of force and restraint,
compel their victims to practice prostitution."
Id., at 11. Examples were given of the use of "[l]iquor,
trickery, deceit, fraud and the use of force" by a procurer
"to place the girl under his power." Ibid. For
maintaining a regime of prostitution, the Report said,
ORDERS 947
405 U.S. February 22, 1972
"the procurer has [sic] resort to physical violence and
the maintenance of a system of surveillance which makes
her, to all intents and purposes, a prisoner." Id., at 12.
There was no such force or compulsion in the present case.
The Report makes plain that the Act "does not attempt
to regulate the practice of voluntary prostitution" or to
displace any laws of the States. Id., at 10.
Since at best this case is a marginal one, should not the
Act be strictly, not loosely, construed? Since petitioner
and the woman (plus petitioner's wife) were on a year's
tour, do the offenses multiply every time a state line is
crossed or should the enterprise be considered as one
entity? Or, where there is but one inducement, is there
not, so far as § 2422 is concerned, but one offense?
These are questions on which we should have briefs
and argument.
The Court has not been consistent in its approach to
this Act, as a comparison of Caminetti v. United States,
242 U. S. 470, with Bell v. United States, supra, makes
plain. The present case of voluntary prostitution is an
appropriate vehicle for a re-examination of the judicial
decisions in this area.
No. 71-5591. LEIGHTON v. NEIL, WARDEN. C. A. 6th
Cir. Certiorari denied. MR. JUSTICE STEWART and
MR. JUSTICE PowELL are of the opinion that certiorari
should be granted. Reported below: 443 F. 2d 1183.
No. 71- 5675. MOONEY v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. MR. JusTICE BLACKMUN took
no part in the consideration or decision of this petition.
No. 71-5687. WRIGHT v. UNITED STATES. C. A
D. C. Cir. Certiorari denied. MR. JUSTICE DouGLAS
and MR. JusTICE MARSHALL are of the opinion that certiorari
should be granted. Reported below: 146 U. S.
App. D. C. 126, 449 F. 2d 1355.
948 OCTOBER TERM, 1971
February 22, 1972 405 U.S.
Rehearing Denied
No. 70-90. ScHILB ET AL. v. KuEBEL, 404 U.S. 357;
No. 70-315. RESOLUTE INSURANCE Co. ET AL. v. SEVENTH
JUDICIAL DISTRICT CouRT OF OKJ,AHOMA CouNTY ET AL.,
404 U. s. 997;
No. 71-254. ·wEsTMORELAND v. MissISSIPrI, 404 U. S. 1038;
No. 71-463. KADANS v. COLLINS, CHIEF JusTICE, SuPREME
COURT OF NEVADA, ET AL., 404 u. s. 1007;
No. 71-518. Coucn, ADMINISTRATRIX v. Missouru-KANSASTExAs
RAILROAD Co., 404 U. S. 1025;
No. 71-545. UNITED STATES STEEL CoRP. v. BLAIR, 404
u. s. 1018;
No. 71-5171. CUNNINGHAM v. WINGO, WARDEN, 404 U.S.
1064;
No. 71-5326. FELAN v. UNITED STATES, 404 U. S. 978;
No. 71-5380. GALDEIRA ET AL. v. RICHARDSON ET AL., 404
U.S.993;
No. 71-5394. SHAPPELL v. MARTIN-MARIETTA CoRP., 404
u. s. 1002;
No. 71-5479. ToDARO v. UNITED STATES, 404 U. S. 1040;
No. 71-5482. McCRAY v. UNITED STArns MARSHAL FOR
THE DISTRICT OF KANSAS ET AL., 404 U. S. 1040; and
No. 71-5524. LoGAN v. CoRRRCTIONAL SuPimINTENDENT,
WALLKILL PRISON, 404 U. S. 1061. Petitions for rehearing
denied.
No. 70-38. FEDERAL PowER CoMMissroN v. FLORIDA PowER
& LIGHT Co., 404 U. S. 453. Petition for rehearing denied.
MR. JUSTICE STEw ART took no part in the consideration or
decision of this petition.
No. 70-5025. HAINES v. KERNER ET AL., 404 U.S. 519. Petition
for rehearing denied. MR. J usTICE PowELL and MR.
JusTICE REHNQUIST took no part in the consideration or
decision of this petition.
ORDERS 949
405 U.S. February 22, 23, 28, 1972
No. 70-193. Russo v. UNITED STATES, 404 U.S. 1023. Petition
for rehearing denied. MR. J uSTLCE WHITE took no part
in the consideration or decision of this petition.
Assignment Order
An order of THE CHIEF JUSTICE designating and assigning
Mr . .T ustice Clark (retired) to perform judicial duties in
the United State,g Court of Appeals for the Tenth Circuit
during the period beginning March 13, 1972, and ending
March 15, 1972, and for such additional time in advance
thereof to prepare for the trial of cases, and for such
further time as may be required to complete unfinished
business, pursuant to 28 U. S. C. § 294 (a) , is ordered entered
on the minutes of this Court, pursuant to 28 U. S. C. § 29:"\.
FERRUARY 23, 1972
D-ismissals Under Rule 60
No. 70-95. BoARD OF ELECTIONS FOR THE DISTRICT OF Co-
L UMBIA ET AL. v. LESTER ET AT,. Appeal from D. C. D. C.
dismissed under Rule 60 of the Rules of this Court. Reported
below: 319 F. Supp. 505.
No. 71-6014. LEPISCOPO v, UNITED STATES. C. A. 9th Cir.
Petition for writ of certiorari dismissed under· Rule 60 of
the Rules of this Court.
FEBRUAlff 28, 1972
Affirmed on Appeal
No. 71-765. NoRTIUm), NATURAL GAs Co. v. 1Vn,soN ET AL.
Affirmed on appeal from D. C. Kan. Reported below: 340 F.
Supp.1126.
No. 71-5464. KIRK v. McME1rn ET AL. Affit·med on appeal
from D. C. N. D. Iowa. MR. JUSTICE DOUGLAS would note
probable jurisdiction and set case for oral argument.
No. 71-5743. TORRES ET AL. v. NEw YoRK STATI-; DEPARTM•;
NT OF LABOR ET AL. Affirmed on appeal from D. C. S. D.
N. Y. MR. ,JusTICJ<J DouGLAS, ~fR. JcsTICE BRENNAN, and
MR. JcsTICE MARSHALL would note probable jurisdiction
and reverse. Goldberg v. Kelly, 397 U. S. 254 (1970). Reported
below : 333 F. Supp. 341.
Appeals Dismissed
No. 70-56. GILLIGAN, GovERNOR OF Onrn, ET AL. v. Sw};ETENIIAU
ET AL. Appeal from D. C. S. D. Ohio [probable jurisdiction
noted, 401 U. S. 991] dismissed as moot. Reported
below: 318 F. Supp. 1262.
950 OCTOBER TERM, 1971
February 28, 1972 405 U.S.
No. 71-828. DETROIT POLICE OFFICERS AssN. ET AL.
v. CITY OF DETROil'. Appeal from Sup. Ct. Mich. dismissed
for want of substantial federal question. Reported
below: 385 Mich. 519, 190 N. W. 2d 97.
No. 71 855. ,YrLLIS v. STATE BoARD OF CONTROL ET AL.
Appeal from Ct. App. Cal., 4th App. Dist., dismissed for
want of substantial federal question.
No. 71 880. HAYNES ET AL. v. LINDER ET AL. Appeal
from Sup. Ct. 11o. dismissed for want of jurisdiction.
Treating the papers whereon the appeal was taken as a
petition for writ of certiorari, certiorari denied. Reported
below: 472 S. W. 2d 412.
lvf iscellaneous Orders
No. A-871. FRASER & JOHNSTON Co. v. LODGE 1327,
INTERNATIONAL ASSOCIATION OF ;\,fACHINISTS & AEROSPACE
\YORKERS, AFL-CIO. C. A. 9th Cir. Application
for stay presented to MR. JusTICE DouGLAS, and by him
referred to the Court, denied.
No. 70-74. P1PEFITTERS LOCAL PNION No. 562 ET AL.
v. "C°NITED STATES. C. A. 8th Cir. [Certiorari granted,
402 e. R. 994.] Motion of petitioners for leave to file
supplemental brief after argument granted. MR. Jl1STICE
BLACKMt:N took no part in the consideration or
decision of this motion.
Xo. 70-220. CAPLIN, TRUSTEE v. MARINE MIDLAND
GRACE THrST Co. OF );°Ew YoRK. C. A. 2d Cir. [Certiorari
granted. 404 U. S. 982.] Motion of the Solicitor
General for leave to participate in oral argument on behalf
of the Securities and Exchange Commission granted
and a total of 15 minutes allotted for that purpose.
Counsel for respondent allotted 15 additional minutes for
oral argument.
ORDERS 951
405 U.S. February 28, 1972
No. 40, Orig. PENNSYLVANIA v. NEw YORK ET AL.
Motion of American Express Co. for leave to file a brief
as amicus curiae denied. [For earlier orders herein, see,
e. g., 401 U. S. 931.]
No. 70---250. CARLESON, DIRECTOR, DEPARTMENT OF
SocIAL ·WELFARE, ET AL. v. REMILLARD ET AL. Appeal
from D. C. N. D. Cal. [Probable jurisdiction noted, 404
U. S. 1013.] Motion of appellee Remillard for appointment
of counsel granted. It is ordered that Carmen L.
Massey, of Richmond, California, be, and she is hereby,
appointed to serve as counsel for appellee Remillard in
this case.
No. 70---5015. ARGERSINGER v. HAMLIN, SHERIFF.
Sup. Ct. Fla. [Certiorari granted, 401 U. S. 908.] Motion
for leave to cite supplemental authority granted.
No. 70---5061. KIRBY v. ILLINOIS. App. Ct. Ill., 1st
Dist. [Certiorari granted, 402 U. S. 995.] Motion of
the Attorney General of California for leave to participate
in oral argument as amicus curiae granted and a
total of 15 minutes allotted for that purpose. Counsel
for petitioner allotted 15 additional minutes for oral
argument.
No. 70---5276. MUREL ET AL. v. BALTIMORE CITY CRIMINAL
COURT ET AL. C. A. 4th Cir. [Certiorari granted,
404 U. S. 999.] Motion to dispense with printing amicus
curiae brief of Prison Research Council of the University
of Pennsylvania Law School granted.
No. 71-5097. HUFFMAN v. B0ERSEN. Sup. Ct. Neb.
[Certiorari granted, 404 U. S. 990.] Motion of respondent
for leave to proceed in forrna pauperis granted.
No. 71-5103. MORRISSEY ET AL. v. BREWER, WARDEN,
ET AL. C. A. 8th Cir. [Certiorari granted, 404 U. S.
999.] Motion to dispense with printing amicus curiae
brief of James H. Russell granted.
952 OCTOBER TERM, 1971
February 28, 1972 405 U.S.
No. A-797 (71-994). EPSTEIN v. AssOCIATION OF THE
BAR OF THE CITY OF NEW YORK. App. Div., Sup. Ct.
N. Y., 1st Jud. Dept. Application for stay presented to
MR. JUSTICE DOUGLAS, and by him referred to the Court,
<lenied. MR. J"CSTICE Do"CGLAS and MR. JUSTICE BLACKMUN
are of the opinion that the stay should be granted.
Reported below: 37 App. Div. 2d 333, 325 N. Y. S.
2d 657.
No. 71-5470. BEASLEY v. UNITED STATES;
No. 71-5707. SMITH v. MAcGRUDER;
No. 71 - 5710. HORTON v. ~ORTH CAROLINA; and
No. 71-5711. ENLOW v. LASH , WARDEN. Motions
for leave to file petitions for writs of habeas corpus
denied.
No. 71 - 5701. LAUCHLI v. Poos, U.S. DISTRICT J uDGE;
No. 71 5713. MooRE v. WHIPPLE, U. S. DISTRICT
JvDGE; and
No. 71 -5751. McCRAY v. ARRAJ, U. S. DISTRICT
JUDGE, ET AL. Motions for leave to file petitions for writs
of mandamus denied.
No. 71-798. SILK v. KLEPPE, ADMINISTRATOR OF
SMALL Bus1NESS ADMINISTRATION. Motion to dispense
with printing petition granted. Motion for leave to file
petition for writ of mandamus denied.
Probable Jurisdiction Noted
No. il-873. UNITED STATES v. FALSTAFF BREWING
CoRP. ET AL. Appeal from D. C. R. I. Probable jurisdiction
noted and case set for oral argument with No.
71-703 [ C:nited States v. First ,\:ational Ban.corporation,
Inc., probable jurisdiction noted, ante, p. 915]. Reported
below: 332 F. Supp. 970.
No. 71 - 879. HEUBLEIN, INc. v. SouTH CAROLINA TAX
COMMISSION. Appeal from Sup. Ct. S. C. Probable
jurisdiction noted. Reported below: 257 S. C. 17, 183
S. E. 2d 710.
ORDERS 953
405 U.S. February 28, 1972
Certiorari Granted
No. 71-857. Evco, DBA Evco INSTRUCTIONAL DESIGNS
V. JONES, COMMISSIONER OF BUREAU OF REVENUE, ET AL.
Ct. App. N. M. Certiorari granted. Reported below:
83 N. M. 110, 488 P. 2d 1214.
No. 71-858. RICCI v. CHICAGO MERCANTILE Ex-
CHANGE ET AL. C. A. 7th Cir. Certiorari granted. Reported
below: 447 F. 2d 713.
No. 71-895. NATIONAL LABOR RELATIONS BOARD v.
INTERNATIONAL VAN LINES. C. A. 9th Cir. Certiorari
granted. Reported below: 448 F. 2d 905.
No. 71-732. ScHNECKLOTH, CoNSERVATION CENTER
SUPERINTENDENT v. BusTAMONTE. C. A. 9th Cir. Motion
of respondent for leave to proceed in forma pauperis
and certiorari granted. Reported below: 448 F. 2d 699.
No. 71-863. CoLUMBIA BROADCASTING SYSTEM, INC.
v. DEMOCRATIC NATIONAL CoMMITI'EE;
No. 71-864. FEDERAL COMMUNICATIONS COMMISSION
ET AL. V. BUSINESS EXECUTIVES' MOVE FOR VIETNAM
PEACE ET AL. ;
No. 71-865. PosT-NEwswEEK STATIONS, CAPITAL
AREA, INC. v. BUSINESS EXECUTIVES' MOVE FOR VIETNAM
PEACE; and
No. 71-866. AMERICAN BROADCASTING Cos., INC. V.
DEMOCRATIC NATIONAL COMMITTEE. C. A. D. C. Cir.
Certiorari granted. Cases consolidated and a total
of two hours allotted for oral argument. Mandate of
United States Court of Appeals for the District of Columbia
Circuit issued on October 29, 1971, in these cases
is hereby recalled and stayed pending the sending down
of judgment of this Court. MR. JusTICE DouGLAS is of
the opinion that stay should be denied. Reported below:
146 U. S. App. D. C. 181, 450 F. 2d 642.
954 OCTOBER TERM, 1971
February 28, 1972 405 U.S.
No. 71-900. UNION OIL Co. OF CALIFORNIA v. THE
SAN JACINTO ET AL. C. A. 9th Cir. Certiorari granted.
Reported below: 451 F. 2d 1369.
~o. 71-586. KEIL, WARDEN v. BIGGERS. C. A. 6th
Cir. Motion to use record in No. 237, October Term,
1967 [Biggers v. Tennessee, 390 U. S. 404] and motion
of respondent for leave to proceed in forrna pauper-is
granted. Certiorari granted. MR. JUSTICE MARSHALL
took no part in the consideration or decision of these
motions and petition. Reported below: 448 F. 2d 91.
Certiorari Denied. (See also Xo. 71-880, supra.)
No. 70-5405. CAPELLO v. GATES ET AL. C. A. 2d
Cir. Certiorari denied.
No. 71-730. WILLIAMS v. "UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 447 F.
2d 1285.
No. 71- 740. ALLEN, TRUSTEE IN BANKRUPTCY v.
LNITED STATES. C. A. 10th Cir. Certiorari denied.
Reported below: 447 F. 2d 497.
No. 71-763. BRADSHAW ET AL. v. LAIRD, SECRETARY
OF DEFENSE, ET AL. C. A. 4th Cir. Certiorari denied.
No. 71- 769. MORNING TELEGRAPH, A DIVISION OF
TRIANGLE PUBLICATIONS, INC. V. POWERS ET AL. C. A.
2d Cir. Certiorari denied. Reported below: 450 F. 2d
97.
No. 71-777. CLEVELAND ET AL. v. ILLINOIS BELL TELEPHONE
Co. ET AL.; and
No. 71-807. AGRON V. ILLINOIS BELL TELEPHONE Co.
ET AL. C. A. 7th Cir. Certiorari denied. Reported below:
449 F. 2d 906.
Xo. 71--800. COHEN v. rNITED STATES. c. A. 2d Cir.
Certiorari denied. Reported below: 448 F. 2d 1224.
ORDERS 955
405 u. s. February 28, 1972
No. 71-788. ARMOUR & Co. v. LocAL UNION Ko. 186,
UNITED PACKINGHOUSE, FOOD & ALLIED \YORKERS, AFLCIO.
C. A. 6th Cir. Certiorari denied. Reported below:
446 F. 2d 610.
No. 71-789. JACOBS v. UNITED STATES; and
No. 71- 796. KAsTENBArM v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 451 F. 2d
530.
No. 71-810. CHICKEN DELIGHT, INc., ET AL. v. SIEGEL
ET AL.; and
No. 71-824. SrnGEL ET AL. v. CHICKEN DELIGHT, INc.,
ET AL. C. A. 9th Cir. Certiorari denied. Reported below:
448 F. 2d 43.
No. 71-815. DIORIO v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. Reported below: 451 F. 2d 21.
No. 71-859. BRADFORD ET ux. v. THOMPSON ET AL.
Sup. Ct. Tex. Certiorari denied. Reported below: 470
S. W. 2d 633.
No. 71-872. JOHNSON ET AL. v. BOARD OF APPEALS
AND REVIEW. Ct. App. D. C. Certiorari denied. Reported
below: 282 A. 2d 566.
No. 71-885. COUNTY OF MIDDLESEX v. GEVYN CONSTRUCTION
ConP. C. A. 1st Cir. Certiorari denied.
Reported below: 450 F. 2d 53.
No. 71- 894. UNITED STATES STEEL CoRP. v. LAIRD ET
AL. C. A. 5th Cir. Certiorari denied. Reported below:
449 F. 2d 216.
Ko. 71-904. GREAT FIDELITY INVESTMENT Co. ET AL.
v. MARTIN ET AL. C. A. 5th Cir. Certiorari denied.
Reported below: 450 F. 2d 959.
No. 71-5094. BEATY ET AL. v. NELSON, WARDEN.
C. A. 9th Cir. Certiorari denied.
956 OCTOBER TERM, 1971
February 28, 1972 405 U.S.
No. 71-5418. SPILLER v. CALIFORNIA. Ct. App. Cal.,
4th App. Dist. Certiorari denied.
No. 71-5448. HAYNES v. TEXAS. Ct. Crim. App. Tex.
Certiorari denied. Reported below: 468 S. W. 2d 375.
No. 71-5462. WHITMORE v. NEw YORK. Ct. App.
N. Y. Certiorari denied. Reported below: 28 N. Y. 2d
826, 270 N. E. 2d 893.
No. 71-5490. PETWAY v. NORTH CAROLINA. Sup. Ct.
N. C. Certiorari denied.
No. 71-5511. FARMER v. KROPP, WARDEN. C. A. 6th
Cir. Certiorari denied. Reported below: 445 F. 2d 5.
No. 71-5513. ROGERS v. NEW YoRK. App. Div., Sup.
Ct. N. Y., 2d Jud. Dept. Certiorari denied.
No. 71-5734. HOAK ET AL. v. PENNSYLVANIA. Sup.
Ct. Pa. Certiorari denied.
No. 71-5736. WILLIS v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied.
No. 71-5738. AcARINO v. MISHLER, CHIEF JuDGE,
U. S. DISTRICT COURT. C. A. 2d Cir. Certiorari denied.
No. 71-5739. BARROW v. BouNDS, CORRECTIONS DIRECTOR.
C. A. 4th Cir. Certiorari denied.
No. 71-5741. SINCLAIR v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
No. 71-5746. GRINDSTAFF v. WARDEN, LEAVENWORTH
PENITENTIARY. C. A. 10th Cir. Certiorari denied.
No. 71-5747. RosENBERG v. MANCUSI, CORRECTIONAL
SUPERINTENDENT. C. A. 2d Cir. Certiorari denied.
Reported below: 445 F. 2d 613.
No. 71-5748. WIMBERLEY v. LAIRD, SECRETARY OF DEFENSE,
ET AL. C. A. 7th Cir. Certiorari denied.
ORDERS 957
405 U.S. February 28, 1972
No. 71-5749. SAsKo v. UNITED STATES. C. A. 3d Cir.
Certiorari denied.
No. 71-5750. BAYS v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. Reported below: 448 F. 2d 977.
No. 71-5752. LEwrs v. UNITED STATES CouRT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT. C. A.
D. C. Cir. Certiorari denied.
No. 71-5754. BOYD V. BETO, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Certiorari denied. Reported below: 447
F. 2d 148.
No. 71-5756. HALL v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. Reported below: 449 F. 2d 1206.
No. 71-5757. FERGUSON v. VIRGINIA. Sup. Ct. Va.
Certiorari denied.
No. 71-5758. LANGLEY ET AL. v. TURNER, WARDEN.
C. A. 10th Cir. Certiorari denied.
No. 71-5759. HIDALGO v. PURCELL ET AL. Ct. App.
Ore. Certiorari denied. Reported below: 5 Ore. App.
513, 488 P. 2d 858.
No. 71-5760. YANICH v. MUMMERT, SHERIFF. C. A.
9th Cir. Certiorari denied.
No. 71-5763. OVERTON v. UNITED STATES. C. A. 2d
Cir. Certiorari denied.
No. 71-5764. NOEL v. UNITED STATES; and
No. 71-5774. JONES ET AL. v. UNITED STATES. C. A.
3d Cir. Certiorari denied. Reported below: 450 F. 2d
1057.
No. 71-5765. CHICQUELO v. UNITED STATES. C. A.
D. C. Cir. Certiorari denied. Reported below: 146
U. S. App. D. C. 381, 452 F. 2d 1310.
958 OCTOBER TERM, 1971
February 28, 1972 405 U.S.
No. 71~486. MONGER v. FLORIDA. Sup. Ct. Fla. Certiorari
denied, it appearing that judgment of the Supreme
Court of Florida rests upon an adequate state
ground. Reported below: 249 So. 2d 433.
MR. JusTICE DouGLAS, with whom MR. JUSTICE BRENNAN
and MR. JusTICE STEWART concur, dissenting.
Petitioner was employed in a newsstand which sold
"girlie" magazines. He was charged with the sale of two
allegedly obscene magazines--Body Shop and The
Erotic Cinema-in violation of Florida's obscenity statute
1 and, on November 3, 1970, the jury returned verdicts
of guilty on both counts. On January 12, 1971,
the trial court orally pronounced its judgment of guilty
and imposed a sentence of either a $1,000 fine or six
months' imprisonment on each count, plus costs. That
same day, petitioner filed his notice of appeal and a motion
for supersedeas. On January 18, the trial court
entered its written order nunc pro tune January 12. This
order recited that petitioner's notice of appeal was filed
after the entry of judgment. Because he was challenging
the constitutionality of a state statute, petitioner's appeal
was transferred by the District Court of Appeal of Florida,
First District, to the Florida Supreme Court.
Respondent then made a motion to dismiss the appeal
because "the notice of appeal ... was filed prior to entry
of either judgment or sentence." Respondent's argument
was apparently founded upon the fact that the
notice of appeal was filed after the oral entry of judgment
but before the written nunc pro tune order. In a
1 Fla. Stat. Ann. § 847.011. This statute was held unconstitutional
by a three-judge district court, Meyer v. Austin, 319 F. Supp.
457, and an appeal from that judgment is presently pending before
this Court, No. 70-35, Austin v. Meyer.
ORDERS 959
958 DOUGLAS, J., dissenting
4--3 decision, the Florida Supreme Court dismissed the
appeal. Justice Ervin dissented, saying:
"I think it altogther too technical to refuse to give
credence to notices of appeals filed ante to judgments
or sentences being reduced to writing and placed in
a minute or judgment book after they have been
pronounced in open court and reflected in the minutes.
A person convicted should not be deln,yed in
taking an appeal or commencing service of sentence.
A notice of appeal is not necessarily invalid because
it antedates a written judgment. It picks up when
the judgment is entered unless the state can show
some prejudice by early filing of the notice, which
it can't in this case."
Petitioner now contends that it is a denial of due
process to dismiss a criminal defendant's only appeal for
failing to meet a procedural technicality where the failure
does not prejudice the State.2 Alternatively, petitioner
argues that the basis of the dismissal by the Florida Supreme
Court was not an adequate and independent state
ground which would bar this Court's review of his First
Amendment claims. Respondent answers that the State's
rules of appellate procedure are necessary "to avoid chaotic
and haphazard appellate proceedings" and thus comport
with the requirements of procedural due process.
In any event, argues respondent, the judgment below
rests upon an adequate state ground and thus is not
within our certiorari jurisdiction. 28 U.S. C. § 1257 (3).
The Federal Constitution contains no requirement that
a State provide appellate courts or even that there be a
right to appellate review. Griffin v. Illinois, 351 U. S.
2 Petitioner argues that the notice of appeal was filed January 12
in order to prevent the trial court from increasing the sentence it
had imposed orafly.
960 OCTOBER TERM, 1971
DOUGLAS, J., dissenting 405 u. s.
12, 18; McKane v. Durston, 153 U.S. 684, 687-688. This
is not to say, however, that once appellate review has
been provided a State may deny it arbitrarily or capriciously
without violating the Equal Protection and Due
Process Clauses of the Fourteenth Amendment. Douglas
v. California, 372 U. S. 353; Burns v. Ohio, 360 U. S. 252;
Griffin v. Illinois, supra. A substantial constitutional
question is presented, therefore, when federal rights secured
by the First Amendment are rejected on the basis
of procedural technicalities such as the one involved here.
See Daniels v. Allen, 344 U.S. 443, 557-558 (Frankfurter,
J., dissenting); Brinkerhoff-Faris Co. v. Hill, 281 U. S.
673, 682; Rogers v. Alabama, 192 U. S. 226, 230--231;
Hill, The Inadequate State Ground, 65 Col. L. Rev. 941,
959-962 ( 1965).
In my view, the basis of the dismissal in the Supreme
Court of Florida is not an adequate and independent
state ground sufficient to bar this Court's review of petitioner's
First Amendment claims. "Whatever springes
the State may set for those who are endeavoring to assert
rights that the State confers, the assertion of federal
rights, when plainly and reasonably made, is not to be
defeated under the name of local practice. . . . [I]t is
necessary to see that local practice shall not be allowed to
put unreasonable obstacles in the way." Davis v. Wechsler,
263 U. S. 22, 24-25. Thus. the rule that this Court
will not review decisions founded upon state grounds is
subject to exception so that federal claims may properly
be vindicated.
In Rogers v. Alabama, SU'[)Ta, for example, the state
court had stricken from the record a motion on the
ground that it was "prolix," but we nonetheless reached
the federal question raised in that motion. We have
similarly reached federal questions which had been
avoided by state courts on the ground that the improper
remedy had been used, NAACP v. Alabama, 357 U. S.
ORDERS 961
958 DoUGLAS, J ., dissenting
449; that the argument advanced had been too indefinite
or was improperly presented for consideration by the
state court, Barr v. City of Columbia, 378 U. S. 146;
NAACP v. Alabama, 377 U. S. 288, 293--302; Staub v.
City of Baxley, 355 U. S. 313, 318-320; Lovell v. Griffin,
303 U. S. 444, 449--450; that the state appellate court
lacked jurisdiction because the appellant had failed to
give opposing counsel the requisite opportunity to examine
and correct the transcript, Sullivan v. Little Hunting
Park, 396 U. S. 229; that a criminal defendant had
not made timely objection to the admission of evidence,
Henry v. Mississippi, 379 U.S. 443; or that the required
certification of the state appeal had not been obtained,
Parrot v. Tallahassee, 381 U. S. 129. See also R. Stern
& E. Gressman, Supreme Court Practice 131-142 ( 4th ed.
1969); Hill, supra; Note, 74 Harv. L. Rev. 1375 (1961);
Note, 62 Col. L. Rev. 822 (1962). In Henry v. Mississippi,
supra, at 446--447, we summarized the effect of
procedural irregularities in state proceedings upon the
scope of this Court's review:
"It is, of course, a familiar principle that this
Court will decline to review state court judgments
which rest on independent and adequate state
grounds, even where those judgments also decide
federal questions. The principle applies not only
in cases involving state substantive grounds, but
also in cases involving state procedural grounds.
But it is important to distinguish between state
substantive grounds and state procedural grounds.
Where the ground involved is substantive, the determination
of the federal question cannot affect the
disposition if the state court decision on the state
law question is allowed to stand. Under the view
taken in Murdock [20 Wall. 5901 of the statutes
conferring appellate jurisdiction on this Court, we
have no power to revise judgments on questions of
962 OCTOBER TERM, 1971
DOUGLAS, J., dissenting 405 U.S.
state law. Thus, the adequate nonfederal ground
doctrine is necessary to avoid advisory opinions.
"These justifications have no application where
the state ground is purely procedural. A procedural
default which is held to bar challenge to a conviction
in state courts, even on federal constitutional
grounds, prevents implementation of the federal
right. Accordingly, \Ve have consistently held that
the question of when and how defaults in compliance
with state procedural rules can preclude our
consideration of a federal question is itself a federal
question." (Citations omitted.)
We then concluded "that a litigant's procedural defaults
in state proceedings do not prevent vindication
of his federal rights unless the State's insistence on compliance
with its procedural rule serves a legitimate state
interest. In every case we must inquire whether the
enforcement of a procedural forfeiture serves such a
state interest. If it does not, the state procedural rule
ought not be permitted to bar vindication of important
federal rights." Id., at 447--448.
I assume that Florida has a legitimate interest in
foreclosing interlocutory appeals in order to avoid piecemeal
litigation of criminal cases. That assumption,
however, does not dispose of the present case because
Henry requires that "every case" be considered on its
own facts. Here, I can fathom no state interest which
would be served by rejecting a notice of appeal filed
after an oral pronouncement of judgment but before
a written order. This is not a case where the orderly
progress of the trial was disrupted by a dilatory interlocutory
appeal or where an appeal was sought before
some vital aspect of the trial was completed. Nor is
this a case where the record on appeal was missing
some formal document or pleading. Indeed, tellingly
absent from the order of the Supreme Court of Florida
ORDERS 963
405 U.S. February 28, 1972
and the brief of the respondent is the assertion of any
state interest which would have been served had the
trial court's January 12 order been written instead of
oral or had the petitioner waited until January 18 to
file his formal notice of appeal. Under such circumstances,
Henry v. Mississippi teaches that we are free
to consider petitioner's federal claims.
I would grant the petition for a writ of certiorari and
reverse and remand on Redrup v. New York, 386 U.S. 767.
No. 71-554. LrnPMAN v. CALIFORNIA. Ct. App. Cal.,
2d App. Dist. Certiorari denied. MR. JusTICE DouGLAS
is of the opinion that certiorari should be granted.
No. 71- 629. VALDEZ ET AL. v. BLACK ET AL. C. A.
10th Cir. Certiorari denied. MR. JUSTICE DoGGLAS is
of the opinion that certiorari should be granted. Reported
below: 446 F. 2d 1071.
No. 71-772. MENNA v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. MR. JUSTICE DOUGLAS is of the
opinion that certiorari should be granted. Reported below:
451 F. 2d 982.
No. 71-791. RoMAN v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. MR. JusTICE DOUGLAS is of the
opinion that certiorari should be granted. Reported below:
451 F. 2d 579.
No. 71-870. FEINLOWITZ v. NEw YORK. Ct. App.
:-.T. Y. Certiorari denied. MR. JUSTICE DOUGLAS is of
the opinion that certiorari should be granted. Reported
below: 29 N. Y. 2d 176, 272 N. E. 2d 561.
No. 71- 668. RIVERA v. UNITED STATES; and
Xo. 71-832. MARQUEZ v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. MR. JUSTICE WHITE took no
part in the consideration or decision of these petitions.
Reported below: 449 F. 2d 89.
964 OCTOBER TERM, 1971
February 28, 1972 405 U.S.
No. 71-5365. FosTER v. MANCUSI, CORRECTIONAL St:-
PERINTENDENT. C. A. 2d Cir. Certiorari denied. MR.
JusTICE DouGLAS is of the opinion that certiorari should
be granted.
No. 71-5505. BIVENS v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. MR. JusTICE DOUGLAS is of the
opinion that certiorari should be granted. Reported below:
445 F. 2d 1064.
No. 71-5745. MACLEAN v. LAIRD, SECRETARY OF DEFENSE,
ET AL. C. A. 9th Cir. Certiorari denied. MR.
JuSTICE DOUGLAS is of the opinion that certiorari should
be granted.
No. 71-672. UNITED STATES v. Two HUNDRED AND
ONE 50-POUND BAGS OF FuRAZOLIDONE ET AL. C. A. 8th
Cir. Certiorari denied. THE CHIEF JUSTICE is of the
opinion that certiorari should be granted.
No. 71-709. SuMIDA ET AL. v. YuMEN ET AL. C. A.
9th Cir. Motions to dispense with printing petition and
brief in opposition granted. Certiorari denied. Reported
below: 444 F. 2d 1281.
No. 71-720. CERONE ET AL. v. UNITED STATES;
No. 71-759. ANGELINI v. UNITED STATES; and
No. 71-760. CORTINA v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. MR. JusTICE DOUGLAS is of the
opinion that certiorari should be granted for reasons
stated in his dissent in Addonizio v. United States, ante,
p. 936. Reported below: 452 F. 2d 274.
No. 71-884. CHANDLER, U. S. DISTRICT JuoGE v.
O'BRYAN. C. A. 10th Cir. Certiorari denied. MR.
JUSTICE DouGLAS is of the opinion that certiorari should
be granted. MR. .JusTICE MARSHALL took no part in
the consideration or decision of this petition. Reported
below: 445 F. 2d 1045.
ORDERS 965
405 U.S. February 28, 1972
No. 71-737. MICHIGAN v. TRUDEAU. Sup. Ct. Mich.
Motion of respondent for leave to proceed in forma
pauperis granted. Certiorari denied. Reported below:
385 Mich. 276, 187 N. W. 2d 890.
No. 71-790. PERKINS v. LAIRD, SECRETARY OF DEFENSE.
C. A. 8th Cir. Certiorari denied. MR. JusTICE
DouGLAS and MR. JuSTICE BRENNAN are of the opinion
that certiorari should be granted.
No. 71-792. GRUBBS ET AL. v. UNITED STATES. C. A.
5th Cir. Motion to dispense with printing petition
granted. Certiorari denied. Reported below: 451 F. 2d
275.
No. 71-799. UNIVERSITY HILL FouNDATION v. CoMMISSIONER
OF lN'rERNAL REVENUE. C. A. 9th Cir. Certiorari
denied. MR. JUSTICE STEWART is of the opinion
that certiorari should be granted. Reported below: 446
F. 2d 701.
No. 71-814. CORTRIGHT ET AL. v. FROEHLKE, SECRETARY
OF THE ARMY, ET AL. C. A. 2d Cir. Motion to
dispense with printing petition granted. Certiorari denied.
MR. JusTICE DOUGLAS is of the opinion that certiorari
should be granted. Reported below: 447 F. 2d 245.
No. 71-881. ILLINOIS v. HUDSON. Sup. Ct. Ill. Certiorari
denied, it appearing that judgment of the Supreme
Court of Illinois rests upon an adequate state ground.
Reported below: 50 Ill. 2d 1, 276 N. E. 2d 345.
No. 71-5686. LAUCHLI v. UNITED STATES. C. A. 7th
Cir. Certiorari denied.
MR. JusTICE DoDGLAS, dissenting.
Petitioner brought this civil rights lawsuit pursuant to
42 U. S. C. § 1985 to recover damages from agents of the
Alcohol, Tobacco, and Firearms Division of the Treasury
Department. He alleged that they had conducted un966
OCTOBER TERM, 1971
DOUGLAS, J ., dissenting 405 U.S.
lawful searches of his property beyond the scope of
their warrants. Both lower courts denied the petitioner,
a pauper, permission to proceed in forma pauperis. The
terse orders simply stated that the unlawful search issue
was frivolous. 1 Yet there is no doubt that a civil rights
damages action is appropriate where federal agents ransack
one's premises without authority. Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
The Solicitor General, however, contends that the order
of the Court of Appeals was nonetheless correct because
the agents' searches had already been validated in the
previous and finalized criminal proceeding.2
This action, brought to vindicate deprivations of Fourth
Amendment privileges, is akin to that of the remedy of
federal habeas corpus. The latter relief is not barred
merely because the grounds relied on have been rejected
on direct review of the conviction. 3 Inasmuch as both 42
1 With respect to the frivolity standard under 28 U. S. C. § 1915,
I have previously stated my view that the principle of equal protection
of the laws prohibits a court from denying a pauper access to
judicial machinery where a similarly situated but wealthier litigant
could have obtained a ruling on the merits of his claim simply by
paying docketing fees. Here the petitioner was unable to pay the
docketing fee required by the Court of Appeals and was unable to
pay the service fee (but was able to pay the $15 docketing fee) required
by the District Court. Cruz v. Hauck, 404 U.S. 59 (1971).
2 The Solicitor General may not be entirely correct in his implied
assertion that all of the issues tendered in the instant complaint had
been litigated in the criminal proceeding. Only searches conducted
on April 17, 1969, were before the Court of Appeals. 444 F. 2d
1037, 1041 (CA7 1971). In addition to those seizures, petitioner's
civil rights complaint attacked searches conducted on other date,,
which were not litigated in the previous prosecution inasmurh as the
seized items were not sought to be introduced.
3 Even where a federal prisoner continues to raise the same issue
by filing repetitive petitions pursuant to 28 U. S. C. § 2255, the reviewing
judge may not perfunctorily deny the later ones solely on
the doctrine of res judicata. "[I]t is open to the applicant to show
ORDERS 967
965 DOUGLAS, J., dissenting
U. S. C. § 1985 and federal habeas corpus are designed to
make whole those who have been injured, either through
loss of liberty or property, by unconstitutional conduct, it
is unclear why collateral estoppel should apply against a
prisoner in a civil rights action but not in his habeas
action on the same issue. If Lauchli is subsequently
freed on habeas on the very claim tendered here, will his
civil rights action still be barred?
The Solicitor General says that the validity of petitioner's
arrest and the searches of his premises, now challenged
in this civil action, was "fully litigated and upheld
in the criminal proceedings." That is partially true
but not completely so. In the criminal case the motion
to suppress the evidence was heard only by the court and
it ruled on the question whether there was "probable
cause" for the searches. But the issues tendered in this
civil rights case will be for a jury to resolve. Is Lauchli
barred from a jury trial on his civil rights suit merely
because in the prior criminal case a judge ruled there was
"probable cause" for the search?
These are important questions upon which we should
have briefs and arguments.
The issue assumes added importance in light of the
Government's current position that collateral estoppel
does not bar it from re-prosecuting a defendant in a
forfeiture lawsuit for the same alleged course of conduct
for which he had previously been acquitted. In No. 71-
672, United States v. Two Hundred and One 50-pound
Bags of Furazolidone, the Solicitor General has petitioned
this Court to reverse a Court of Appeals' determination
that a prior acquittal of a defendant charged
with smuggling animal feed in violation of 18 U. S. C.
§ 545 is a bar to a subsequent in rem forfeiture action
that the ends of justice would be served by permitting the redetermination
of the ground." Sanders v. United States, 373 U. S. 1, 16
(1963).
968 OCTOBER TERM, 1971
February 28, 1972 405 U.S.
brought by the Government against the feed on grounds
that it was imported in violation of the same section.
The forfeiture case is not distinguishable from this
case on the theory that the forfeiture action is "civil" and
requires a lesser standard of proof. We have long held
that "proceedings instituted for the purpose of declaring
the forfeiture of a man's property by reason of offences
committed by him, though they may be civil in form, are
in their nature criminal." Boyd v. United States, 116
U. S. 616, 634 (1886). In United States v. U. S. Goin
& Currency, 401 U. S. 715, 718 (1971),. we found "no
difference between a man who 'forfeits' $8,674 because he
has used the money in illegal gambling activities and a
man who pays a 'criminal fine' of $8,674 as a result of
the same course of conduct."
May the Government have its cake and eat it too?
May it (a) maintain that res judicata does not defeat
forfeiture actions which are brought subsequent to acquittals
and which are based on the same course of conduct,
yet (b) plead collateral estoppel to a prisoner's attempts
to recover damages for allegedly unconstitutional searches
previously sustained on direct review of his conviction? 4
I would grant the petition for certiorari or at the very
least hold it for our disposition of No. 71-672.
No. 71-5762. SHARROW v. BROWN. C. A. 2d Cir.
Certiorari denied. MR. JUSTICE MARSHALL took no part
in the consideration or decision of this petition. Reported
below: 44 7 F. 2d 94.
4 This proposition, of course, does not foreclose the possibility that
the Court could hold against the Government in both situations. By
analogizing the subsequent civil rights lawsuit to the habeas action,
collateral estoppel might be found inapplicable. By requiring that
the Government join all "criminal" charges flowing from a single
course of conduct in a single proceeding the Government's subsequent
forfeiture action could be barred. Green v. United States, 355 U. S.
184 (1957); see my dissenting opinion in Hoag v. New Jersey, 356 u. s. 464, 477 (1958).
ORDERS 969
405 U.S. Februar~r 28, 1972
No. 71-5761. JOYCE v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied. MR. JusTICE DouGLAS and MR.
JusTICE STEWART are of the opinion that certiorari
should be granted. Reported below: 147 U. S. App.
D. C. 128, 454 F. 2d 971.
Rehearing Denied
No. 71--499. MASCIA v. UNITED STATES, 404 U. S.
1025;
No. 71-527. UNITED STATES v. STANDARD OIL Co.
OF CALIFORNIA, 404 U. 8. 558;
No. 71- 536. WILKINS, ADMINISTRATRIX v. AMERICAN
EXPORT ISBRANDTSEN LINES, INC., 404 U. s. 1018;
No. 71-591. RAWLS v. CoNDE NAST PUBLICATIONS,
INc., 404 U. S. 1038; and
No. 71-5546. DuNLEAVAY v. RocKEFELLER CENTER,
INC., ET AL., 404 U. S. 1062. Petitions for rehearing
denied.
No. 70-79. RELIANCE ELECTRIC Co. v. EMERSON
ELECTRIC Co., 404 U. S. 418. Petition for rehearing denied.
MR. JusTICE POWELL and MR. JUSTICE REHNQUIST
took no part in the consideration or decision of
this petition.
No. 70-290. GAs LIGHT Co. OF COLUMBUS v. GEORGIA
PowER Co. ET AL., 404 U. S. 1062; and
No. 70-5049. BURNS v. SWENSON, WARDEN, ET AL.,
404 U. S. 1062. Petitions for rehearing denied. MR.
JUSTICE POWELL took no part in the consideration or
decision of these petitions.
No. 71-5444. CARLOUGH v. RICHARDSON, SECRETARY
OF HEALTH, EDUCATION, AND WELFARE, 404 U. S. 1026.
Petition for rehearing denied. MR. JusTICE DOUGLAS
took no part in the consideration or decision of this
petition.
970 OCTOBER TERM, 1971
February 28, March 3, 6, 1972 405 U.S.
No. 71-5277. CARTER v. COURT OF CRIMINAL APPEALS
OF TEXAS, 404 U. S. 1012. Motion for leave to file petition
for rehearing denied.
MARCH 3, 1972
Miscellaneous Order
No. 71-1080. UNITED MINE WORKERS OF AMERICA
v. BRYANT, U. S. DISTRICT JUDGE. Motion for leave to
file petition for writ of mandamus denied.
MARCH 6, 1972
Order Appointi11g Clerk
It is ordered that Michael Rodak, Jr .. be appointed
Clerk of this Court to succeed E. Robert Seaver effective
at the commencement of business March 4, 1972, and
that he take the oath of office and give bond as required
by statute and the order of this Court entered !\Tovember
22, 1948.
Affirmed on Appeal
No. 71 - 929. F01rnrsH ET AL. v. WALLACE, GOVERNOR
OF ALABAMA, ET AL. Affirmed on appeal from D. C'.
M. D. Ala. Reported below: 341 F. Supp. 217.
N"o. 71-5806. CHARLESTON ET AL. V. \VoHLGEMUTH
ET AL. Affirmed on appeal from D. C. E. D. Pa. MR.
J1:STICE Dot:GLAS is of the opinion that probable jurisdiction
should be noted and case set for oral argument.
Reported below: 332 F. Supp. 1175.
Appeals Dismissed
~o. 71-805. PHILADA HOME FUND, lNc. v. BOARD OF
REVIEW, OHIO BUREAU OF EMPLOYMENT SERVICES. Appeal
from Sup. Ct. Ohio dismissed for want of jurisdiction.
Treating the papers whereon the appeal was taken
as a petition for writ of certiorari, certiorari denied.
ORDERS 971
405 u. s. March 6, 1972
~o. 71 624. THOMPSON 1·. THOMPSON. Appeal from
Super. Ct. Pa. ::VIotion of appeller for leave to proceed
in f or1na pauperis granted. Appeal dismis!'led for want
of jurisdiction. Treating the papers wherPon the appeal
was taken as a petition for writ of certiorari, certiorari
denied. Reported below: 217 Pa. ~uper. 874, 272 A. 2d
189.
No. 71 ,'5773. FAIR v. "\VIGGINs. .\ppeal from Sup. Ct.
Fla. dismissed for want of jurisdiction. Treating the
papers whereon the appeal was taken as a petition for
writ of certiorari, certiorari denied.
No. 71-!t32. Wooos ET AL. v. Soc1ETY FOR THE PROPAGATION
OF THE FAITH OF THE ARCHDIOCESE OF NEW
ORLEANS, lNc., ET AL. Appeal from Sup. Ct. La. dismissed
for want of substantial federal question. Reported
below: 259 La. 897, 253 So. 2d 221.
Vacated and Remanded on Appeal
No. 70--291. OSMOND ET AL. v. SPENCE ET AL. Appeal
from D. C. Del. Motion to dispense with printing jurisdictional
statement granted. Judgment vacated and
case remallcled for further consideration in light of Swarb
v. Lennox, ante, p. 191, and D. H. Overmyer Co., I nc., of
Ohio v. Frick C'o., ante, p. 174. Order of June 21, 1971,
entered by Mn. JrRTICE BRENNAN, as modified by his
order of August 20, 1971. shall continue in effect unless
and until superseded by order of District Court. Reported
below: 327 F. Supp. 1349.
No. 71 - 5262. CARPENTER ET AL. v. STERRETT, ADMINISTRATOR,
DEPAHTMENT OF PlTBLIC \VELFARE OF INDIANA,
ET AL. Appeal from D. C. :\". D. Ind. Motion for leave
to proceed in forma pauperis granted. Judgment vacated
and case remanded for further consideration in light of
Townsend v. Simnk and .l lexander v. Swank, 404 r. S.
282.
972 OCTOBER TERM, 1971
March 6, 1972 405 U.S.
Other Summary Disposition
No. 71- 5421. MIDGETT v. SLAYTON, PENITENTIARY
SUPERINTENDENT. Order of this Court heretofore entered
on February 22, 1972 [ certiorari granted, ante, p. 916],
in this case is hereby revoked. Certiorari dismissed.
Reported below: 443 F. 2d 1090.
Miscellaneous Orders
No. 71-41. INTERNATIONAL UNION OF OPERATING
ENGINEERS. LOCAL 150, AFL-CIO V. FLAIR BCILDERS,
I Ne. [ Certiorari granted, 404 U. S. 982.] Request for
additional time for filing brief for respondent granted
and 30 additional days allotted for that purpose. Typewritten
briefs may be filed in lieu of printed briefs.
J. Robert Murphy, Esquire, of Aurora, Illinois, invited
to file a brief and argue in this case as amicus curiae in
support of judgment below.
~o. il-709. SUMIDA ET AL. v. YuMEN Er AL., ante, p.
964. Motion to disbar denied.
No. 71-1017. GRAVEL v. FNITED STATES; and
~o. 71-1026. lJ"NITED STATES v. GRAVEL. [Certiorari
granted, ante, p. 916.] Motion to expedite granted so
that the consolidated cases may be briefed and argued
during the present Term of Court. Motion of Unitarian
Universalist Assn. for leave to participate in oral argument
as amicus curiae in :No. 71- 1017 denied.
No. 71-665. YASQUEZETAL. v. WALSH, WARDEN. Motion
for leave to filE' petition for writ of habeas corpus
denied.
No. 71-812. LEMELSON v. PETTINE, CHIEF JUDGE,
t:. S. DISTRICT CorRT. Motion for leave to file petition
for writ of mandamus and/ or prohibition denied.
No. 71- 5812. MAGEE v. NELSON, WARDEN, ETAL. Motion
for leave to file petition for writ of prohibition
denied.
ORDERS 973
405 U.S. March 6, 1972
No. 71--5791. CLEAVES v. PENNSYLVANIA ET AL.; and
No. 71-5792. KNIGHT v. UNITED STATES CouRT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CrncuIT. Motions
for leave to file petitions for writs of mandamus
denied.
Certiorari Granted
No. 71-1016. FEDERAL PowER CoMMISSION v. LouisIANA
PowER & L1GHT Co. ET AL.; and
No. 71-1040. UNITED GAs PrPE LINE Co. ET AL. v.
LouISIANA PowER & LIGHT Co. ET AL. C. A. 5th Cir.
Petitions for certiorari to review judgment of United
States Court of Appeals for the Fifth Circuit in Federal
Power Commission v. Louisiana Power & Light Co.
(CA No. 71-2550) granted and cases consolidated. Petitions
for certiorari before judgment to review opinion
and order of Federal Power Commission (FPC Opinion
No. 606, United Gas Pipe Line Co.) denied. Motion
to expedite granted so that the consolidated cases may
be briefed and argued during present Term of Court.
Motions of Humble Oil & Refining Co. and State of
Louisiana et al. for leave to file briefs as amici curiae
granted. MR. JusTICE PowELL took no part in the consideration
or decision of these petitions and motions.
Reported below: 456 F. 2d 326.
No. 71-839. ERLENBAUGH ET AL. v. UNITED STATES.
C. A. 7th Cir. Certiorari granted limited to Question 1,
presented by the petition, which reads as follows:
"1. Whether the Court of Appeals erred in not following
the opinion of the Court of Appeals for the Fourth
Circuit in a 1967 case entitled U. S. vs Arnold, 380
Federal 2nd, 366, thus creating a conflict between the
circuits."
MR. JUSTICE WHITE took no part in the consideration
or decision of this petition. Reported below: 452 F. 2d
967.
974 OCTOBER TERM, 1971
March 6, 1972 405 u. s.
No. 71-909. ENVIRONMENTAL PROTECTION AGENCY
ET AL. v. MINK ET AL. C. A. D. C. Cir. Certiorari
granted. Reported belo\v: - - U. S. App. D. C. -,
464 F. 2d 742.
Certiorari Denied. (See also Nos. 71-624, 71-805, 71-
5773, 71-1016, and 71-1040, SU!Yfa.)
No. 71-702. Tocco v. UNITED STATES;
No. 71-5916. RICHMOND v. UNITED STATES;
No. 71-5924. SMITH v. UNITED STATES; and
No. 71-5925. LoNG v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 449 F. 2d
288.
No. 71-783. MARTELLA v. MARINE CooKs & STEWARDS
UNION ET AL. C. A. 9th Cir. Certiorari denied.
Reported below: 448 F. 2d 729.
No. 71-787. MoNSANTO Co. v. DAwsoN CHEMICAL
Co. ET AL. C. A. 5th Cir. Certiorari denied. Reported
below: 443 F. 2d 1035.
No. 71- 818. PACE Co., DIVISION OF AMBAC INDUSTRIES,
INC. V. FROEHLKE, SECRETARY OF THE ARMY,
ET AL. C. A. 6th Cir. Certiorari denied. Reported below:
453 F. 2d 890.
No. 71-821. DELTA DEVELOPMENT Co., INc., ET AL.
v. UNITED STATES ET AL. C. A. 5th Cir. Certiorari
denied. Reported below: 447 F. 2d 989.
No. 71-826. 967.905 AcRES OF LAND IN CooK CouNTY
ET AL., MINNESOTA, ET AL. V. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 447 F. 2d 764.
No. 71-842. BAKER v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 452 F. 2d 21.
No. 71-846. SIRAGUSA v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 450 F. 2d 592.
ORDERS 975
405 U.S. ]\-larch 6, 1972
Xo. 71-860. TROPIANO v. UNITED STATES. C. A. 2d
Cir. Certiorari denied.
No. 71-875. IvIMEY v. NEw YoRK. App. Term, Sup.
Ct. N. Y., 9th & 10th Jud. Dists. Certiorari denied.
No. 71-878. THOMAS v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
No. 71-882. HUNTER v. NORTH CAROLINA. Sup. Ct.
N. C. Certiorari denied. Reported below: 279 N. C.
498, 183 S. E. 2d 665.
No. 71-903. JoNES v. BOARD OF EouCATION OF
DAVIESS CouNTY. Ct. App. Ky. Certiorari denied.
Reported below: 470 S. W. 2d 829.
Xo. 71-911. PRESSMAN v. NELLIS. Ct. App. D. C.
Certiorari denied. Reported below: 282 A. 2d 539.
No. 71-917. BARBrzoN ELECTRIC Co., INc. v. CITY
OF NEw YORK. App. Div., Sup. Ct. N. Y., 1st Jud.
Dept. Certiorari denied. Reported below: 36 App.
Div. 2d 923, 321 N. Y. S. 2d 322.
No. 71-922. CoHN v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. Reported below: 452 F. 2d 881.
No. 71-927. TROPIANO v. MOSELEY, WARDEN. C. A.
2d Cir. Certiorari denied.
No. 71-5753. ALTIMUS v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 449 F. 2d 736.
No. 71-5766. BETTKER v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 450 F. 2d 506.
No. 71-5767. McHENRY v. UNITED STATES. C. A.
8th Cir. Certiorari denied. Reported below: 449 F.
2d 194.
No. 71-5768. CLAYTON v. UNITED STATES. C. A. 1st
Cir. Certiorari denied. Reported below: 450 F. 2d 16.
976 OCTOBER TERM, 1971
March 6, 1972 405 U.S.
No. 71-5770. MASELLI v. MANCUSI, CORRECTIONAL
SUPERINTENDENT. C. A. 2d Cir. Certiorari denied.
No. 71-5772. DAVIS v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 448 F. 2d 781.
No. 71-5775. WHITE v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 447 F. 2d 493.
No. 71-5776. HOLMES v. MARYLAND. C. A. 4th Cir.
Certiorari denied.
No. 71-5777. GREEN v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 447 F. 2d 987.
No. 71-5778. LAWS v. YEAGER, PRINCIPAL KEEPER.
C. A. 3d Cir. Certiorari denied. Reported below: 448
F. 2d 74.
No. 71-5779. EISEN v. SILVER. C. A. 2d Cir. Certiorari
denied.
No. 71-5781. JACKSON v. PICARD, CORRECTIONAL Su-
PERINTENDENT, ET AL. C. A. 1st Cir. Certiorari denied.
No. 71-5782. YouNG v. ALABAMA. C. A. 5th Cir.
Certiorari denied. Reported below: 443 F. 2d 854.
No. 71-5783. PATTERSON v. TULSA LOCAL Xo. 513,
MOTION PICTURE OPERATORS OF THE UNITED STATES &
CANADA. C. A. 10th Cir. Certiorari denied. Reported
below: 446 F. 2d 205.
No. 71-5784. RoY v. CALIFORNIA. Ct. App. Cal., 4th
App. Dist. Certiorari denied. Reported below: 18 Cal.
App. 3d 537, 95 Cal. Rptr. 884.
No. 71-5785. GREEN v. SLAYTON, PENITENTIARY Su-
PERINTENDENT. C. A. 4th Cir. Certiorari denied.
No. 71-5786. CAGLE v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 448 F. 2d 644.
ORDERS 977
405 U.S. March 6, 1972
No. 71-5793. MAGEE v. YEAGER, PRINCIPAL KEEPER.
C. A. 3d Cir. Certiorari denied.
No. 71-5796. MILLER v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied.
No. 71-5797. McBRIDE v. UNITED STATES. C. A.
10th Cir. Certiorari denied. Reported below: 446 F.
2d 229.
No. 71-5798. McLEAN, AKA McCLEAN v. UNITED
STATES. C. A. 4th Cir. Certiorari denied. Reported
below: 448 F. 2d 1399.
No. 71-5800. CREASMAN v. FrnsT FEDERAL SAVINGS
& LOAN AssoCIATION OF HENDERSONVILLE ET AL. Sup.
Ct. N. C. Certiorari denied. Reported below: 279
N. C. 361, 183 S. E. 2d 115.
No. 71- 5802. McGAHEY v. UNITED STATES. C. A.
9th Cir. Certiorari denied. Reported below: 449 F.
2d 738.
No. 71-5804. LOGAN v. LYON ET AL. C. A. 2d Cir.
Certiorari denied.
No. 71-5805. KLABIN v. NEW YORK. App. Div.,
Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.
No. 71-5807. JOHNSON v. BRIERLEY, PENITENTIARY
SUPERINTENDENT. C. A. 3d Cir. Certiorari denied.
Reported below: 444 F. 2d 1177.
No. 71-5808. HALEY v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 444 F. 2d 61.
No. 71-5810. JOHNSON v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
No. 71-5811. CooKE v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
978 OCTOBER TERM, 1971
March 6, 1972 405 U.S.
No. 71-5809. HALEY v. LNITED Sr ATES; and
No. 71-5851. LILEY Er AL. v. UNITED STATES. C. A.
8th Cir. Certiorari denied. Reported below: 452 F. 2d
391.
No. 71-5813. S"C"LLIVAN v. BucHKOE, WARDEN. C. A.
6th Cir. Certiorari denied.
No. 71-5814. SEEWALD v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 450 F. 2d 1159.
No. 71-5939. BROWN Er AL. v. UNITED STATES. C. A.
8th Cir. Certiorari denied. Reported below: 453 F. 2d
101.
Xo. 71-246. OswALD, CORRECTION COMMISSIONER, ET
AL. v. SosrRE. C. A. 2d Cir. Motion to dispense with
printing amicus curiae brief of Xational Law Office of
X ational Legal Aid & Defender Assn. and motion of
respondent for leave to proceed in forma pauperis granted.
Certiorari denied. Reported below: 442 F. 2d 178.
No. 71-548. HAMILTON v. CALIFORNIA. App. Dept.,
Super. Ct. Cal., County of Alameda. Certiorari denied.
MR. JusTICE DouGLAS is of the opinion that certiorari
should be granted.
~o. 71-593. BERG v. SCHMIDT, JUDGE. C. A. 9th
Cir. Certiorari denied. MR. JUSTICE DouGLAS is of the
opinion that certiorari should be granted.
No. 71-910. SIMS ET AL. v. PARKE DAVIS & Co. ET AL.
C. A. 6th Cir. Certiorari denied. MR. JUSTICE DouGLAS
is of the opinion that certiorari should be granted.
Reported below: 453 F. 2d 1259.
No. 71-930. BENSON ET AL. v. RICH ET AL. C. A.
10th Cir. Certiorari denied. MR. JusTICE DovGLAS is
of the opinion that certiorari should be granted. Reported
below: 448 F. 2d 1371.
ORDERS 979
405 U.S. March 6, 1972
No. 71-5771. MuNCASTER v. UNITED STATES. C. A.
5th Cir. Certiorari denied. MR. JUSTICE DouGLAS is
of the opinion that certiorari should be granted. Reported
below: 447 F. 2d 1367.
No. 71-5799. ROBINSON v. DAVIS ET AL. C. A. 4th
Cir. Certiorari denied. MR. JusTICE DOUGLAS is of the
opinion that certiorari should be granted. Reported below:
447 F. 2d 753.
No. 71-809. SoBEL v. UNITED STATES. C. A. 9th Cir.
Certiorari denied. MR. JUSTICE STEWART is of the opinion
that certiorari should be granted. Reported below:
443 F. 2d 1370.
No. 71-833. DACOSTA v. LAIRD, SECRETARY OF DEFENSE,
ET AL. C. A. 2d Cir. Certiorari denied. MR.
JusTICE BRENNAN is of the opinion that certiorari should
be granted. Reported below: 448 F. 2d 1368.
MR. JUSTICE DOUGLAS, dissenting.
Once again, this Court is confronted with a challenge
to the constitutionality of the presidential war which has
raged in Southeast Asia for nearly a decade.1 Once again,
it denies certiorari. Once again, I dissent.
I have expressed at length my view that the constitutional
questions raised by conscription for a presidential
war are both substantial and justiciable. See, e. g.,
Massachusetts v. Laird, 400 U. S. 886 (DOUGLAS, J., dis-
'Pf'titioner DaCosta is a Portuguese citizen permanently resident
in the United States. He was conscripted into t,he United States
Army in December 1970, and commenced this action in July 1971,
to enjoin enforcement of military orders deploying him to Vietnam.
He alleges that participation by the United States in the Vietnamese
conflict has not been authorized by Congress conformably with the
Constitution, and that absent such authorization, Congress has no
power to conscript for military service in armed conflict overseas.
980 OCTOBER TERM, 1971
DouoLAs, J., dissenting 405 U.S.
senting) (Mass. I); Hart v. United States, 391 U. S. 956
(DouGLAS, J., dissenting); Holmes v. United States, 391
U.S. 936 (DOUGLAS, J., dissenting); Mora v. McNamara,
389 U. S. 934, 935 (DOUGLAS, J., dissenting); Mitchell
v. United States, 386 U.S. 972 (DouGLAs, J., dissenting).
The circuits are in conflict as to the justiciability of
these questions. Compare Massachusetts v. Laird, 451
F. 2d 26 (CAI 1971) (Mass. II), and Orlando v. Laird,
443 F. 2d 1039 (CA2 1971), with Velvel v. Nixon, 415 F.
2d 236 (CAlO 1969), and Luftig v. McNamara, 126 U.S.
App. D. C. 4, 373 F. 2d 664 ( 1967).
This Court, of course, should give deference to the
coordinate branches of the Government. But we did
not defer in the Prize Cases, 2 Black 635, when the issue
was presidential power as Commander in Chief to order
a blockade. We did not defer in the Steel Seizure Case,2
when the issue was presidential power, in time of armed
international conflict, to order the seizure of domestic
steel mills. Nor should we defer here, when the issue is
presidential power to seize, not steel, but people. See
Mass. I, supra, at 891-900.
The Constitution gives Congress the power "To declare
War," Art. I, § 8; and it is argued that the Constitution
gives to Congress the exclusive power to determine
when it has declared war. But if there is such a
"textually demonstrable constitutional commitment,''
Baker v. Carr, 369 U. S. 186, 217, it is for this Court to
determine its scope. Powell v. McCormack, 395 U. S.
486, 521. See Mass. I, supra, at 892.
While we debate whether to decide the constitutionality
of this war, our countrymen are daily compelled to
undergo the physical and psychological tortures of armed
2 Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579.
ORDERS 981
405 U.S. March 6, 8 1 1972
combat on foreign soil. Families and careers are disrupted;
young men maimed and disfigured; lives lost.
The issues are large; they are precisely framed; we should
decide them.
No. 71-883. PEARL v. LAIRD, SECRETARY OF DEFENSE,
ET AL. C. A. 1st Cir. Certiorari denied. MR. JusTICE
DouGLAS and MR. JUSTICE BRENNAN are of the opinion
that certiorari should be granted.
No. 71-920. IN RE O'CONNOR. Sup. Ct. N. J. Certiorari
denied. Mn. JusTICE BRENNAN took no part in
the consideration or decision of this petition.
No. 71-953. .JOHNSON v. REED ET vrn. Sup. Ct. Tex.
Motion to dispense with printing petition granted. Certiorari
denied. Reported below: See 464 S. W. 2d 689.
Rehearing Denied
No. 1469, October Term, 1970. HoMART DEvELOP-
~rnNT Co. v. DIAMOND ET AL., 402 u. s. 988. Joint motion
for leave to file petition for rehearing denied. THE
CHIEF JUSTICE and MR. JUSTICE BLACKMUN are of the
opinion that the motion should be granted.
No. 71-437. AMATO ET AL. V. WISCONSIN, 404 U. S.
1063;
No. 71-5504. FEURTADO V. FLORIDA, 404 U. S. 1047;
and
No. 71-5536. WICKLINE V. BROOKS ET AL., 404 U. S.
1061. Petitions for rehearing denied.
MARCH 8, 1972
Dismissal Under Rule 60
No. 71-747. GRAUSAM v. MuRPHEY, STATE HosPITAL
DIRECTOR, ET AL. C. A. 3d Cir. Petition for writ of
certiorari dismissed under Rule 60 of the Rules of this
Court. Reported below: 448 F. 2d 197.
982 OCTOBER TERM, 1971
March 17, 20, 1972
MARCH 17, 1972
Miscellaneous Order
405 u. s.
No. A-937 (71 - 1170). WHDH, INC. v. UNITED
STATES CouRr OF APPEALS FOR THE DISTRICT OF Co-
LUMBIA CrncuIT; and
No. A-937 (71-1171). WHDH, INc. v. FEDERAL CoMMUNICATIONS
COMMISSION ET AL. C. A. D. C. Cir.
Application for stay pending action on petition for writ
of certiorari [No. 71-1171] and motion for leave to file
petition for writ of mandamus [Ko. 71-1170] presented
to MR. JUSTICE Dol1GLAS, and by him referred to the
Court, denied. THE CHIEF JuSTICE took no part in the
consideration or decision of this application.
MARCH 20, 1972
Affirmed on Appeal
No. 71-936. MANARD ET AL. v. MILLER, ATTORNEY
GENERAL OF VIRGINIA, ET AL. Affirmed on appeal from
D. C. E. D. Va. MR. J-csTICE DOUGLAS is of the opinion
that probable jurisdiction should be noted.
Appeals Dismissed
No. 71-675. KAPPOS v. lowA. Appeal from Sup. Ct.
Iowa dismissed for want of jurisdiction. Treating the
papers whereon the appeal was taken as a petition for
writ of certiorari, certiorari denied. MR. JUSTICE DouGLAS
is of the opinion that probable jurisdiction should be
noted. Reported below: 189 X \V. 2d 563.
No. 71- 5399. PERRYMAN v. WASHINGTON. Appeal
from Sup. Ct. \Vash. dismissed for want of jurisdiction.
Treating the papers whereon the appeal was taken as a
petition for writ of certiorari, certiorari denied. Reported
below: See 4 Wash. App. 356, 481 P. 2d 462.
ORDERS 983
405 U.S. March 20, 1972
No. 71-5590. SALISBURY v. OREGON. Appeal from
Ct. App. Ore. dismissed for want of jurisdiction. Treating
the papers whereon the appeal was taken as a petition
for writ of certiorari, certiorari denied. Reported
below: 5 Ore. App. 463, 484 P. 2d 1129.
Certiorari Granted--Vacated and Remanded. (See No.
71-5552, ante, p. 319.)
Other Summary Disposition
No. 71-431. IMMIGRATION AND NATURALIZATION SERVICE
v. VITALES. C. A. 9th Cir. [Certiorari granted,
404 U. S. 983.] Judgment vacated and case remanded
with directions to dismiss petition to review order of
deportation. Reported below: 443 F. 2d 343.
Miscellaneous Orders
No. A-880. SHELTON v. BRFNSON ET AL. D. C. N. D.
Tex. Application for stay of deployment presented to
MR. JusTICE DovGLAS, and by him referred to the Court,
denied. MR. JUSTICE DOUGLAS would continue stay
pending timely filing and disposition of a petition for
writ of certiorari in this Court.
No. A-905. DAVIS ET AL. v. CINEMA CLASSrcs, LTD.,
INc., ET AL.; and
No. A-913. BuscH ET AL. v. CINEMA CLASSICS, LTD.,
INC., ET AL. D. C. C. D. Cal. Applications for stay
of preliminary injunction presented to MR. JUSTICE
POWELL, and by him ref erred to the Court, denied.
No. A-962. CALIFORNIA v. ANDERSON. Sup. Ct. Cal.
Application of State of California for stay of judgment
of Supreme Court of California (Crim. 13617) denied.
Reported below: 6 Cal. 3d 628, 493 P. 2d 880.
No. 50, Orig. VERMONT v. NEW YORK ET AL. Motion
of Monroe County Conservation Council for leave to
intervene as a party plaintiff denied.
984 OCTOBER TERM, 1971
March 20, 1972 405 U.S.
No. A-926. DOE (SCHWARTZ, REAL PARTY IN INTEREST)
v. UNITED STATES. C. A. 2d Cir. Application for
stay of execution of sentence for civil contempt presented
to MR. JUSTICE MARSHALL, and by him referred
to the Court, granted pending further order of this Court.
No. 54, Orig. UNITED STATES v. FLORIDA ET AL. Motion
for leave to file bill of complaint granted and defendants
allotted 60 days to answer.
No. 70---283. ADAMS, WARDEN v. WILLIAMS. C. A. 2d
Cir. [Certiorari granted, 404 U. S. 1014.] Motion of
District Attorney of New York County for leave to
participate in oral argument as amicus curiae denied.
No. 71- 110. GELBARD ET AL. v. UNITED STATES. C. A.
9th Cir. [Certiorari granted, 404 U. S. 990.) Motion
of petitioner Gelbard for assignment of a separate docket
number and/ or additional time for oral argument denied.
No. 71-263. UNITED STATES v. EGAN ET AL. C. A.
3d Cir. [Certiorari granted, 404 U. S. 990.] Motion of
Ramsey Clark and Leonard B. Boudin to permit Jack J.
Levine to argue orally pro hac vice on behalf of respondent
Egan granted.
No. 71-315. DEEPSOUTH PACKING Co., INc. v. LAITRAM
CoRP. C. A. 5th Cir. [Certiorari granted, 404
U. S. 1037.] Motion of Edward S. Irons et al., for leave
to file a brief as amici curiae granted.
No. 71-708. TRAFFICANTE ET AL. v. METROPOLITAN
LIFE INSURANCE Co. ET AL. C. A. 9th Cir. [Certiorari
granted, ante, p. 915.] Motion of petitioners to dispense
with printing briefs and appendix granted.
No. 71-858. RICCI v. CHICAGO MERCANTILE Ex-
CHANGE ET AL. C. A. 7th Cir. [Certiorari granted,
ante, p. 953.) Motion for reconsideration of petition
for certiorari denied.
405U.S.
ORDERS
March 20, 1972
985
No. 71-288. LAIRD, SECRETARY OF DEFENSE, ET AL. v.
TATUM ET AL. C. A. D. C. Cir. [Certiorari granted,
404 U. S. 955.] Motion of Sam J. Ervin, Jr., for additional
time to participate in oral argument as amicus
curiae denied. Permission for two counsel to argue on
behalf of respondents granted.
No. 71-1024. SIXTY-SEVENTH MINNESOTA STATE SENATE
v. BEENS ET AL.; and
No. 71-1145. SIXTY-SEVENTH MINNESOTA STATE SENATE
v. BEENS ET AL. Appeals from D. C. Minn. Motion
to expedite denied. Cases consolidated. Reported below:
336 F. Supp. 71.5.
No. 71-1128. KELEMEN ET AL. v. SERBIAN ORTHODOX
CHURCH CONGREGATION OF ST. DEMETRIUS OF AKRON.
Sup. Ct. Ohio. Motion for consolidation with Nos. 71-
563 [Rohrbaugh v. Presbytery of Seattle, Inc.] and
71-867 [Simich v. Milisavljevic] denied.
No. 71-5255. BARKER v. WINGO, WARDEN. C. A. 6th
Cir. [Certiorari granted, 404 U. S. 1037.] Motion of
Lawyers' Committee for Civil Rights Under Law for
leave to file a brief as amicus curiae granted. Motion
of M. Curran Clem to permit Robert W. Willmott, Jr.,
for leave to argue orally pro hac vice on behalf of respondent
granted.
No. 71-5833. ALEXANDER v. MINNESOTA. Motion for
leave to file petition for writ of certiorari denied.
No. 71-5819. BOYD v. GAFFNEY, WARDEN; and
No. 71-5847. HITCHCOCK v. EYMAN, WARDEN, ET AL.
Motions for leave to file petitions for writs of habeas
corpus denied.
No. 71-949. GARRISON ET AL. v. BROWN, CHIEF JunGE,
U. S. CouRT OF APPEALS, ET AL. Motion for leave to file
petition for writ of mandamus and/or other relief denied.
986 OCTOBER TERM, 1971
March 20, 1972 405 u. s.
No. 71--1018. TEITELBAUM v. STONE, SECRETARY OF
STATE OF FLORIDA;
No. 71-5816. PAIGE v. CHAMBERS, CHIEF JuDGE,
u. s. COURT OF APPEALS;
No. 71-5893. DEBORDE v. HAMILTON, CHIEF JusTICE,
SUPREME CouRT OF WASHINGTON, ET AL.; and
No. 71-5897. PUTNAM v. "C'NITED STATES CouRT OF
APPEALS FOR THE FOURTH CrncurT. Motions for leave
to file petitions for writs of mandamus denied.
No. 71-968. MEDANSKY v. WILL, U. S. DISTRICT
JuDGE. Motion for leave to file petition for writ of
mandamus denied. MR. JcsTICE DOUGLAS is of the opinion
that the motion should be granted.
No. 71-5837. FEATHERINGHAM v. ASHLAND COUNTY
CouRT OF CoMMON PLEAS ET AL. Motion for leave to
file petition for writ of mandamus and/ or prohibition
denied.
Probable Jurisdiction Noted
No. 71- 718. McGINNIS, CoMMISSIONER oF CoRREc-
TION ET AL. v. ROYSTER ET AL. Appeal from D. C. S. D.
N. Y. Probable jurisdiction noted. Reported below:
332 F. Supp. 973.
No. 71-862. UNITED Arn LINES, INc. v. MAHIN, DIRECTOR
OF DEPARTMENT OF REVENUE, ET AL. Appeal
from Sup. Ct. Ill. Probable jurisdiction noted. Reported
below: 49 Ill. 2d 45, 273 N. E. 2d 585.
Certiorari Granted
No. 71-366. TIDEWATER OIL Co. v. UNITED STATES
ET AL. C. A. 9th Cir. Motion for leave to file petition
for rehearing granted. Order of this Court denying
petition for writ of certiorari on :N' ovember 9, 1971 [ 404
U. S. 941], vacated. Certiorari granted.
ORDERS 987
405 U.S. March 20, 1972
No. 71-692. ILLINOIS v. SOMERVILLE. C. A. 7th Cir.
Certiorari granted. Reported below: 44 7 F. 2d 733.
No. 71-711. NATIONAL LABOR RELATIONS BoARD v.
GRANITE STATE JOINT BOARD, TEXTILE WORKERS UNION
OF AMERICA, LOCAL 1029, AFL-CIO. C. A. 1st Cir. Certiorari
granted. Reported below: 446 F. 2d 369.
No. 71-829. MOURNING v. FAMILY PUBLICATIONS
SERVICE, INc. C. A. 5th Cir. Motion of National Conference
of Commissioners on Uniform State Laws for
leave to file a brief as amicus curiae and certiorari granted.
Reported below: 449 F. 2d 235.
No. 71-964. PENNSYLVANIA v. WARE. Sup. Ct. Pa.
Motion of respondent for leave to proceed in f orma
pauperis and certiorari granted. Reported below: 446
Pa. 52, 284 A. 2d 700.
No. 71-5908. CHAMBERS v. MISSISSIPPI. Sup. Ct.
Miss. Motion for leave to proceed in forma pauperi-s
and certiorari granted. Reported below: 252 So. 2d 217.
Certiorari Denied. (See also Nos. 71-675, 71-5399, and
71-5590, supra.)
No. 71-641. EscoBAR v. CALIFORNIA. Super. Ct. Cal.,
County of Orange. Certiorari denied.
No. 71-662. RoHM ET AL. v. CALIFORNIA. Sup. Ct.
Cal. Certiorari denied.
No. 71-734. RIVERA v. UNITED STATES; and
No. 71-5946. CARABALLO v. UNITED STATES. C. A. 2d
Cir. Certiorari denied.
No. 71-776. HARVILLE RosE SERVICE v. KELLOGG Co.
C. A. 5th Cir. Certiorari denied. Reported below: 448
F. 2d 1346.
988 OCTOBER TERM, 1971
March 20, 1972 405 U.S.
No. 71-852. C. D. CONSTRUCTION CORP. v. COMMISSIONER
OF INTERN AL REVENUE. C. A. 4th Cir. Certiorari
denied. Reported below: 451 F. 2d 470.
No. 71-853. GREENBERG v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 449 F. 2d 1223.
No. 71-854. DEUTSCH Co., METAL COMPONENTS Dr-
VISION V. NATIONAL LABOR RELATIONS BOARD. C. A.
9th Cir. Certiorari denied. Reported below: 445 F. 2d
902.
No. 71-867. SIMICH ET AL. v. MILISAVLJEVIC ET AL.
Sup. Ct. Ohio. Certiorari denied.
No. 71-869. DEUTSCH Co., ELECTRONIC COMPONENTS
DIVISION V. NATIONAL LABOR RELATIONS BOARD.
C. A. 9th Cir. Certiorari denied. Reported below: 445
F. 2d 901.
No. 71-876. NEMETZ v. UNITED STATES. C. A. 3d Cir.
Certiorari denied. Reported below: 450 F. 2d 924.
No. 71-886. STRACHAN SHIPPING Co. ET AL. v. CITY
OF GALVESTON; and
No. 71-890. RoRrE v. CITY OF GALVESTON. Sup. Ct.
Tex. Certiorari denied.
No. 71- 892. ZAMBRANO v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 452 F. 2d 416.
No. 71-893. LANE v. IMMIGRATION AND NATURALIZATION
SERVICE. C. A. 9th Cir. Certiorari denied.
No. 71-896. LozoFF v. UNITED STATES. C. A. 1st Cir.
Certiorari denied.
No. 71-897. NEw YORK DISTRICT COUNCIL No. 9,
INTERNATIONAL BROTHERHOOD OF PAINTERS & ALLIED
TRADES, AFL-CIO v. NATIONAL LABOR RELATIONS BOARD.
C. A. 2d Cir. Certiorari denied.
ORDERS 989
405 U.S. March 20, 1972
No. 71-899. GARCIA-GUILLERN v. UNITED STATES.
C. A. 5th Cir. Certiorari denied. Reported below: 450
F. 2d 1189.
No. 71-902. MUNICIPAL LIGHT BoARD OF READING,
MASSACHUSETTS, ET AL. V. FEDERAL POWER COMMISSION
ET AL. C. A. D. C. Cir. Certiorari denied. Reported
below: 146 U. S. App. D. C. 294, 450 F. 2d 1341.
No. 71-905. MORSE ET ux. v. UNITED STATES. Ct. Cl.
Certiorari denied. Reported below: 195 Ct. Cl. 1, 443
F. 2d 1185.
No. 71-906. MOUNTAIN FuEL SUPPLY Co. v. UNITED
STATES. C. A. 10th Cir. Certiorari denied. Reported
below: 449 F. 2d 816.
No. 71-908. STRAUSS v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 452 F. 2d 375.
No. 71-915. UNITED STATES ET AL. v. PARKER ET AL.;
and
No. 71-973. KAIBAB INDUSTRIES ET AL. v. PARKER ET
AL. C. A. 10th Cir. Certiorari denied. Reported below:
448 F. 2d 793.
No. 71-916. KAUFMAN v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. Reported below: 452 F. 2d 1202.
No. 71-926. STUHL v. 527 MADISON AVENUE Co.
App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari
denied. Reported below: 36 App. Div. 2d 502,321 N. Y.
S. 2d 811.
No. 71-933. OHRYNOWicz v. UNITED STATES. C. A.
7th Cir. Certiorari denied.
No. 71-945. LEMELSON v. TOPPER CORP. ET AL. C. A.
2d Cir. Certiorari denied. Reported below: 450 F. 2d
845.
990 OCTOBER TERM, 1971
March 20, 1972 405 U. 8.
No. 71-934. Dt:BELKO v. DuBELKO. Sup. Ct. Ohio.
Certiorari denied.
No. 71-948. GIPE, GUARDIAN v. DEMPSEY ET AL.
C. A. 9th Cir. Certiorari denied. Reported below: 451
F. 2d 1309.
No. 71-955. CRIM, AKA M1LLER v. INDIANA. Sup.
Ct. Ind. Certiorari denied. Reported below: - Ind.
-, 272 N. E. 2d 85.
No. 71-958. AKTIEBOLAGET FLYMo ET AL. v. CODY ET
AL. C. A. D. C. Cir. Certiorari denied. Reported below:
146 U. S. App. D. C. 345, 452 F. 2d 1274.
No. 71-961. ROBERTS ET AL. v. COMMISSIONER OF INTERNAL
REVENUE. C. A. 4th Cir. Certiorari denied.
No. 71-967. WAHL Er AL. v. CARRIER MANUFACTURING
Co., INC. C. A. 7th Cir. Certiorari denied. Reported
below: 452 F. 2d 96.
No. 71-985. MAURICE A. GARBELL, INc., ET AL. v.
HAUK, U. S. D1sTRrCT JuDGE ( BOEING Co. ET AL. , REAL
PARTIES IN INTEREST). C . A. 9th ' Cir. Certiorari denied.
No. 71-987. MOODY v. MooDY. Ct. Civ. App. Tex.,
13th Sup. Jud. Dist. Certiorari denied. Reported below:
465 S. W. 2d 836.
No. 71-989. BROWN v. M1cHIGAN DEPARTMENT OF
MILITARY AFFAIRS. Sup. Ct. Mich. Certiorari denied.
Reported below: 386 Mich. 194, 191 N. W. 2d 347.
No. 71-1053. JAMIESON V. AMERICAN NATIONAL SAFE
DEPOSIT Co. ET AL. App. Ct. Ill., 1st Jud. Dist. Certiorari
denied. Reported below: 133 Ill. App. 2d 647,
273 N. E. 2d 741.
No. 71-5442. HAYS v. KENTUCKY. Ct. App. Ky.
Certiorari denied. Reported below: 467 S. W. 2d 354.
ORDERS 991
405 u. s. March 20, 1972
No. 71-5535. MITCHELL v. CALIFORNIA. Ct. App.
Cal., 4th App. Dist. Certiorari denied. Reported below:
275 Cal. App. 2d 351, 79 Cal. Rptr. 764.
No. 71-5540. REED v. CALIFORNIA. Sup. Ct. Cal.
Certiorari denied.
No. 71-5544. ALLEN v. CARDWELL, WARDEN. C. A.
6th Cir. Certiorari denied.
No. 71-5545. COLLINS v. MICHIGAN. Sup. Ct. Mich.
Certiorari denied.
N°o. 71-5570. DIMAGGIO V. PRUDENTIAL SAVINGS &
LOAN AssN. Sup. Ct. Wis. Certiorari denied.
No. 71-5583. SMITH v. FLORIDA. Sup. Ct. Fla. Certiorari
denied.
No. 71-5605. Cosco v. MEACHAM, WARDEN. Sup. Ct.
Wyo. Certiorari denied.
No. 71- 5815. DUNNINGS v. UNITED STATES. C. A.
2d Cir. Certiorari denied.
No. 71-5817. BURNS V. COLUMBIA PICTURES INTERNATIONAL
CORP. ET AL. C. A. 9th Cir. Certiorari denied.
No. 71-5822. BASKIN v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 449 F. 2d 729.
No. 71-5823. GREEN v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied.
No. 71-5824. BURTON v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Reported below: 438 F. 2d 1089.
No. 71-5825. JOYNER v. SLAYTON, PENITENTIARY
SUPERINTENDENT. C. A. 4th Cir. Certiorari denied.
No. 71-5826. JOHNSON v. MISSISSIPPI. Sup. Ct.
Miss. Certiorari denied. Reported below: 252 So. 2d
221.
992 OCTOBER TERM, 1971
March 20, 1972
No. 71-5827. BRYANT v. UNITED STATES;
405U.S.
No. 71-5996. FEGGETT v. UNITED STATES; and
No. 71-6050. BURKHALTER v. UNITED STATES. C. A.
8th Cir. Certiorari denied. Reported below: 451 F. 2d
394.
No. 71-5831. LEMON v. MANCUSI, CORRECTIONAL Su-
PERINTENDENT, ET AL. C. A. 2d Cir. Certiorari denied.
No. 71-5832. WooDFORD v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
No. 71-5834. FACKELMAN v. UNITED STATES. C. A.
4th Cir. Certiorari denied.
No. 71-5835. FREEMAN v. NEW JERSEY. C. A. 3d Cir.
Certiorari denied.
No. 71-5836. CASTALDI v. UNITED STATES; and
No. 71-5988. McBRIDE ET AL. v. UNITED STATES.
C. A. 7th Cir. Certiorari denied. Reported below: 453
F. 2d 506.
No. 71-5838. Hrn·roN v. RODRIGUEZ, WARDEN. C. A.
10th Cir. Certiorari denied.
No. 71-5839. FREEDMAN v. AMERICAN EXPORT Is-
BRANDTSEN LINES, lNc. C. A. 3d Cir. Certiorari denied.
Reported below: 451 F. 2d 157.
No. 71- 5841. McDANIEL v. UNITED STATES. C. A.
8th Cir. Certiorari denied. Reported below: 449 F. 2d
832.
No. 71-5842. BOYD v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. Reported below: 448 F. 2d 477.
No. 71-5843. LOCKETT v. OHIO. Sup. Ct. Ohio.
Certiorari denied.
405U.S.
ORDERS
March 20, 1972
993
No. 71-5844. GREEN v. LAIRD, SECRETARY OF DEFENSE,
ET AL. C. A. D. C. Cir. Certiorari denied.
No. 71-5846. BRUNGES v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 450 F. 2d 947.
No. 71-5848. LOT'I' v. OKLAHOMA. C. A. 10th Cir.
Certiorari denied.
No. 71-5849. GIBBS v. YEAGER, PRINCIPAL KEEPER.
C. A. 3d Cir. Certiorari denied.
No. 71-5850. GRAHAM v. SUPERIOR CouRT OF CALIFORNIA,
CouNTY OF Los ANGELES, ET AL. (AEROJET-GENERAL
CORP. ET AL., REAL PARTIES IN INTEREST). Ct. App.
Cal., 2d App. Dist. Certiorari denied.
No. 71-5853. TIMMONS v. PENNSYLVANIA ET AL.
C. A. 3d Cir. Certiorari denied.
No. 71-5856. CACAVAS v. GENERAL MoToRs CoRP. ET
AL. C. A. 6th C1r. Certiorari denied. Reported below:
444 F. 2d 506.
No. 71-5857. CHRISTIAN v. NEw YoRK. App. Div.,
Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. Reported
below: 37 App. Div. 2d 765, 324 N. Y. S. 2d 753.
No. 71-5859. WYATT v. OHIO. Sup. Ct. Ohio. Certiorari
denied.
No. 71- 5862. HUBER ET AL. v. STATE BOARD OF BAR
EXAMINERS OF GEORGIA ET AL. C. A. 5th Cir. Certiorari
denied. Reported below: 446 F. 2d 886.
No. 71-5863. GOODMAN ET AL. v. UNITED STATES.
C. A. 5th Cir. Certiorari denied. Reported below: 447
F. 2d 944.
No. 71-5864. WATSON ET AL. v. UNITED STATES.
C. A. 8th Cir. Certiorari denied. Reported below: 450
F. 2d 290.
994 OCTOBER TERM, 1971
March 20, 1972 405 U.S.
No. 71-5865. YouNG v. UNITED STATES. C. A. 8th
Cir. Certiorari denied.
No. 71-5867. LEWIS v. UNITED STATES. C . A. 9th
Cir. Certiorari denied. Reported below: 448 F. 2d 788.
No. 71-5868. HALPRIN v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 450 F. 2d 322.
No. 71-5869. DANIEL v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 445 F. 2d 298.
No. 71-5870. MAcCoLLOM v. ROLLINS ET AL. C. A.
10th Cir. Certiorari denied.
Ko. 71-5871. WING v. UNITED STATES. C. A. 9th Cir.
Certiorari denied. Reported below: 450 F. 2d 806.
No. 71-5873. LovE ET AL. v . VIRGINIA ET AL. C. A.
4th Cir. Certiorari denied. Reported below: 447 F.
2d 50.
No. 71-5878. KENT v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. Reported below: 449 F. 2d 751.
No. 71-5879. LFCKETT v. UNITED S ·rATES. C. A.
D. C. Cir. Certiorari denied.
No. 71-5880. FERENC v. JOHNSON, PENITENTIARY
SUPERINTENDENT. C. A. 3d Cir. Certiorari denied.
No. 71- 5882. BRONSON v. UNITED STATES. C. A.
10th Cir. Certiorari denied. Reported below: 449 E
2d 302.
No. 71-5883. BIBLE v. ARIZONA ET AL. C. A. 9th Cir.
Certiorari denied. Reported below: 449 F. 2d 111.
No. 71 - 5885. lANNARELLI v. MORTON, SECRETARY OF
THE INTERIOR, ET AL. C. A. 3d Cir. Certiorari denied.
No. 71-5889. DENMAN ET AL. v. SCANNELL ET AL.
C. A. 1st Cir. Certiorari denied.
ORDERS 995
405 U.S. March 20, 1972
No. 71-5884. BOULWARE v. NEW YoRK. Ct. App.
N. Y. Certiorari denied. Reported below: 29 N. Y. 2d
135, 272 N. E. 2d 538.
No. 71-5891. LINDSEY v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 451 F. 2d 701.
Ko. 71-5892. LEDERMAN v. NEw YORK CITY TRANSIT
AUTHORITY ET AL. App. Div., Sup. Ct. N. Y., 2d Jud.
Dept. Certiorari denied.
No. 71-5894. BARTLETT, GUARDIAN v. HOLLOPETER.
Sup. Ct. Ohio. Certiorari denied.
No. 71-5895. KELLEY v. SPRINKLE. C. A. 8th Cir.
Certiorari denied.
No. 71-5898. OAKS v. WAINWRIGHT, CoRRECTIONS
DIRECTOR. C. A. 5th Cir. Certiorari denied. Reported
below: 445 F. 2d 1062.
No. 71-5900. J\ToVICK v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 450 F. 2d 1111.
No. 71-5901. WILLIAMS v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 450 F. 2d 343.
No. 71- 5902. OLIVER v. DuGGAN, DISTRICT ATTORNEY
OF ALLEGHENY COUNTY, ET AL. C. A. 3d Cir. Certiorari
denied.
No. 71-5903. FOREMAN v. J\TEW JERSEY. Super. Ct.
N. J. Certiorari denied.
No. 71- 5904. WELLS v. UNITED STATES. Ct. App.
D. C. Certiorari denied. Reported below: 281 A. 2d
226.
No. 71-5907. HoYT v. U NITED STA'l'ES; and
No. 71-5952. BowMAN v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 451 F. 2d 570.
996 OCTOBER TERM, 1971
March 20, 1972 405 U.S.
No. il-5909. SWANSON v. ARKANSAS. Sup. Ct. Ark.
Certiorari denied. Reported below: 251 Ark. 147, 471
S. W. 2d 351.
No. 71-415. COLORADO RrvER WATER CONSERVATION
DISTRICT v. RocKY MouNTAIN PowER Co. ET AL. Sup.
Ct. Colo. Certiorari denied. MR. JusTICE DouGLAS is
of the opinion that certiorari should be granted. MR.
JusTICE REHNQUIST took no part in the consideration or
decision of this petition. Reported below: 174 Colo. 309,
486 P. 2d 438.
No. 71-563. ROHRBAUGH ET AL. v. PRESBYTERY OF
SEATTLE, INc., ET AL. Sup. Ct. Wash. Motion of Mary
Elizabeth Blue Hull Memorial Presbyterian Church, a
Georgia Nonprofit Corp., et al. for leave to file a brief
as amici curiae granted. Certiorari denied. Reported
below: 79 Wash. 2d 367, 485 P. 2d 615.
No. 71-609. TERMINAL FREIGHT HANDLING Co. ET AL.
v. SOLIEN, REGIONAL DIRECTOR, NATIONAL LABOR RELATIONS
BOARD ;
No. 71-924. SEARS, ROEBUCK & Co. ET AL. v. SOLIEN,
REGIONAL DIRECTOR, NATIONAL LABOR RELATIONS BOARD;
and
No. 71-925. TERMINAL FREIGHT CooPERATIVE AssN.
ET AL. v. SOLIEN, REGIONAL DIRECTOR, NATIONAL LABOR
RELATIONS BOARD, ET AL. C. A. 8th Cir. Motions of
Sears, Roebuck & Co. for leave to intervene in Nos. 71-
609 and 71-925 denied. Certiorari denied. MR. JUSTICE
POWELL took no part in the consideration or decision of
these motions and petitions. Reported below: No. 71-
609, 444 F. 2d 699; Ko. 71-924, 450 F. 2d 353.
No. 71-874. FELTMAN v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. MR. JusTICE DOUGLAS is of the
opinion that certiorari should be granted. Reported below:
451 F. 2d 153.
ORDERS 997
405 u. s. March 20, 1972
No. 71-868. CARTRADE, lNc. v. FoRD DEALERS ADVERTISING
ASSOCIATION OF SOUTHERN CALIFORNIA ET AL.
C. A. 9th Cir. Certiorari denied. MR. JUSTICE DouGLAS
is of the opinion that certiorari should be granted. Reported
below: 446 F. 2d 289.
No. 71-5519. HINNINGTON v. DEPARTMENT OF CORRECTIONS
01'' CALIFORNIA ET AL. C. A. 9th Cir. Certiorari
denied. MR. JusTICE DouGLAS is of the opinion
that certiorari should be granted. Reported below: 445
F. 2d 856.
No. 71- 5528. BROWN v. TENNESSEE. Ct. Crim. App.
Tenn. Certiorari denied. MR. JUSTICE DouGLAS is of
the opinion that certiorari should be granted. Reported
below: - Tenn. App.--, 470 S. W. 2d 39.
No. 71-5609. GoooART v. CALIFORNIA. Ct. App. Cal.,
4th App. Dist. Certiorari denied. MR. JusTICE DouGLAS
is of the opinion that certiorari should be granted.
No. 71-5624. ALCALA v. WYOMING. Sup. Ct. Wyo.
Certiorari denied. MR. JusTICE DouGLAS is of the opinion
that certiorari should be granted. Reported below: 487
P. 2d 448.
No. 71-5818. MARCIANO v. IMMIGRATION AND NATURALIZATION
SERVICE. C. A. 8th Cir. Certiorari denied.
MR. JusTICE DouGLAS is of the opinion that certiorari
should be granted. Reported below: 450 F. 2d 1022.
No. 71-5820. DAUGHDRILL, ADMINISTRATRIX v. DIAMOND
M. DRILLING Co. C. A. 5th Cir. Certiorari denied.
MR. JUSTICE DouGLAS is of the opinion that certiorari
should be granted. Reported below: 447 F. 2d
781.
No. 71-5829. HowARD v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. MR. JusTICE DouGLAS is of the
opinion that certiorari should be granted.
998 OCTOBER TERM, 1971
March 20, 1972 405 U.S.
No. 71-5821. MALATESTA v. UNITED STATES. C. A.
9th Cir. Certiorari denied. MR. JUSTICE DouGLAS is
of the opinion that certiorari should be granted. Reported
below: 447 F. 2d 1365.
No. 71-5877. SMART v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. MR. JusTICE DouGLAS is of the opinion
that certiorari should be granted. Reported below:
448 F. 2d 931.
No. 71-5905. CRuz v. BETO, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Certiorari denied. MR. JUSTICE DOUGLAS
is of the opinion that certiorari should be granted.
No. 71-871. PoRDUM v. UNITED STATES; and
No. 71-5890. LuDERA v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. MR. JusTICE WHITE took no
part in the consideration or decision of these petitions.
Reported below: 451 F. 2d 1015.
No. 71-907. UNITED STATES v. THOMPSON. C. A.
D. C. Cir. Motion of respondent for leave to proceed
in forma pauperis granted. Certiorari denied. Reported
below: 147 U. S. App. D. C. 1, 452 F. 2d 1333.
No. 71- 960. MULLINS v. OHIO. Sup. Ct. Ohio. Motion
to dispense with printing petition granted. Certiorari
denied.
No. 71-965. Lov1sI ET vrn v. VIRGINIA. Sup. Ct. Va.
Motion of respondent for leave to dispense with printing
brief granted. Certiorari denied. MR. JUSTICE DOUGLAS
is of the opinion that certiorari should be granted.
No. 71-5874. WHITE v. UNITED STATES. C. A. 5th
Cir. Motion for leave to file supplemental petition
granted. Certiorari denied. MR. JusTICE DOUGLAS is
of the opinion that certiorari should be granted. Reported
below: 451 F. 2d 696.
ORDERS 999
405 U.S. March 20, 1972
No. 71-5828. CROW v. UNITED STATES. C. A. 8th Cir.
Certiorari denied. MR. JusTICE DouGLAS and MR. Jus-
TICE BLACKMUN are of the opinion that certiorari should
be granted. Reported below: 451 F. 2d 323.
No. 71-5888. BAXTER v. DAVIS ET AL. C. A. 1st Cir.
Motion for leave to amend petition granted. Certiorari
denied. Reported below: 450 F. 2d 459.
Rehearing Granted. (See No. 71-366, supra.)
Rehearing Denied
No. 1588, October Term, 1970. SEARS, ROEBUCK &
Co. ET AL. v. SoLrnN, REGIONAL DIRECTOR, NATIONAL
LABOR RELATIONS BOARD, ET AL., 403 U.S. 905, 404 U.S.
960. Motion for leave to file second petition for rehearing
denied. MR. JusTICE PowELL took no part in the
consideration or decision of this motion.
No. 71-612. VoN PoPPENHEIM v. PORTLAND BOXING
& WRESTLING CoMM'N ET AL., 404 u. s. 1039. Petition
for rehearing denied.
No. 71-5171. CUNNINGHAM V. WINGO, WARDEN, 404
U. S. 1064, and ante, p. 948. Motion for leave to file
second petition for rehearing denied.
No. 71- 5534. OLIVER v. HARRISON CouNTY CLERK
ET AL., 404 U. S. 1061. Motion for leave to file petition
for rehearing denied.
Assignment Order
An order of THE CHIEF JUSTICE designating and assigning
Mr. Justice Clark (retired) to perform judicial
duties in the United States Court of Customs and Patent
Appeals during the period beginning May 1, 1972, and
ending May 5, 1972, and for such further time as may
be required to complete unfinished business, pursuant to
28 U. S. C. § 294 (a), is ordered entered on the minutes
of this Court, pursuant to 28 U. S. C. § 295.
1000 OCTOBER TERM, 1971
March 24, 27, 1972
MARCH 24, 1972
Miscellaneous Order
405U.S.
No. A-980. OPATZ v. CITY OF ST. CLOUD ET AL. Sup.
Ct. Minn. Application for temporary injunction pending
appeal, presented to MR. JUSTICE BLACKMUN, and by
him referred to the Court, denied. Reported below: 293
Minn. 379, 196 N. W. 2d 298.
MARCH 27, 1972
Affirmed on Appeal
No. 71-891. CAPITAL BROADCASTING Co. ET AL. v.
AcTING ATTORNEY GENERAL ET AL. Appeal from D. C.
D. C. Motion of John F. Banzhaf III et al. for leave
to file a brief as amici curiae and to dispense with printing
granted. Judgment affirmed. MR. JusTrCE DouGLAS
and MR. JusTICE BRENNAN are of the opinion that
probable jurisdiction should be noted. MR. JuSTICE
POWELL took no part in the consideration or decision of
this motion or appeal. Reported below: 333 F. Supp.
582.
No. 71-919. NATIONAL AssocrATION OF BROADCASTERS
ET AL. v. AcTING ATTORNEY GENERAL ET AL. Affirmed
on appeal from D. C. D. C. MR. JUSTICE DouGLAS and
MR. JusncE BRENNAN are of the opinion that probable
jurisdiction should be noted. Reported below: 333 F.
Supp. 582.
No. 71- 1030. KIERNAN ET AL. v. LINDSAY, MAYOR OF
NEW YORK, ET AL. Affirmed on appeal from D. C. S. D.
N. Y. MR. JusTICE DouGLAS is of the opinion that probable
jurisdiction should be noted. Reported below: 334
F. Supp. 588.
ORDERS 1001
405 U.S. March 27, 1972
Appeals D-ismissed
No. 71-600. STATE BOARD OF ELECTION COMMISSIONERS
ET AL. v. EvERS ET AL. Appeal from D. C. S. D.
Miss. dismissed for failure to docket case within time
prescribed by Rule 13 (1). Reported below: 327 F.
Supp. 640.
MR. JUSTICE BLACKMUN, with whom MR. JusTICE
REHNQUIST joins, concurring.
I join the Court's dismissal of this appeal for failure
to docket within the prescribed time. I do so despite the
fact that the Court apparently has not consistently enforced
the provisions of its Rule 13 (1) and, on occasion,
has permitted appeals despite untimely docketing. See,
for example, another Mississippi voting rights case,
Whitley v. Williams, one of the cases decided with
Allen v. State Board of Elections, 393 U. S. 544 (1969).
Compare Johnson v. Florida, 391 U.S. 596, 598n (1968),
and 9nited Public Workers v. Mitchell, 330 U. S. 75,
84--86 ( 1947), with Pittsburgh 'l'owing Co. v. M-iss-issippi
Valley Barge Line Co., 385 U. S. 32 (1966); Landry v.
Boyle, 393 U. S. 220 (1968); Shapiro v. Doe, 396 U. S.
488 (1970); Stein v. Luken, 396 U. S. 555 (1970); and
United States v. Cotton, 397 U. S. 45 (1970).
Because I do not wish this disposition of the case to
provide a basis for any inference that I, as one member
of this Court, am in agreement with the reasoning set
forth in the per curiam opinion of the three-judge District
Court, 327 F. Supp. 640 (SD Miss. 1971), I append
this comment.
Section 5 of the Voting Rights Act of 1965, 79 Stat.
439, as amended, 84 Stat. 315, 42 U. S. C. § 1973c, first
provides that a State, upon proposing an alteration of
voting qualifications and procedures of the kind specified,
may institute an action for an approving declaratory
1002 OCTOBER TERM, 1971
BLACKMUN, J ., concurring 405 U.S.
judgment in the United States District Court for the
District of Columbia. It then goes on as follows:
"Provided, That such qualification, prerequisite,
standard, practice, or procedure may be enforced
without such proceeding if the qualification, prerequisite,
standard, practice, or procedure has been
submitted by the chief legal officer or other appropriate
official of such State or subdivision to
the Attorney General and the Attorney General has
not interposed an objection within sixty days after
such submission, except that neither the Attorney
General's failure to object nor a declaratory judgment
entered under this section shall bar a subsesequent
action to enjoin enforcement of such
qualification, prerequisite, standard, practice, or
procedure .... "
In the present case, the changes in Mississippi's election
laws effected by the legislature in 1970 were submitted
to the Attorney General of the United States on July 23,
1970. In September the Mississippi Attorney General
received a letter from the Assistant Attorney General of
the Civil Rights Division of the Department of Justice
reading in part as follows:
"The problem posed by these enactments is extremely
complex. . . .
" ... [W]e have been unable to reach the conclusion
that the projected effect would be to deprive
Negro voters of rights under the Voting Rights Act.
"Under these circumstances, the Attorney General
is not prepared at this time-60 days after receipt
of these statutes-to make any determination of the
validity or invalidity of Acts 362 and 363 under the
Voting Rights Act. . . . Should our subsequent
investigation persuade us that the acts in fact vio1001
ORDERS 1003
BLACKMUK, .J., concurring
late the 15th Amendment, the Voting Rights Act
or other applicable federal legislation, we will take
appropriate legal steps to raise the issues in court,
or, if litigation is initiated by others to participate
therein in an appropriate manner.
"I want to make clear that no inference of approval
or disapproval is to be drawn from the
failure of the Attorney General to object within the
statutory period. The fact is that we have been
unable to reach a decision within the alloted time on
the basis of available evidence .... "
The three-judge District Court granted its injunctive
relief on the ground that the pre-clearance requirements
of § 5 had not been satisfied. It did not reach the substantive
allegations of racial discrimination set forth in
the appellees' complaint. Specifically, the District Court
said, "Since Mississippi's new laws have not been subjected
to the required federal scrutiny, they are still in
a state of suspended animation." The court held that
until the statutorily suggested favorable declaratory judgment
was obtained in the District of Columbia, or the
Mississippi laws were resubmitted to the Attorney General
and he had specifically approved, "the acts involved
in this case may not be given any effect." 327 F. Supp.,
at 644.
I am unable so to read § 5 of the Voting Rights Act
of 1965, and I cannot subscribe to the District Court's
reasoning. Section 5, it seems to me, plainly and clearly
provides that if the proposal has been properly submitted
to the Attorney General, as it was, "and the
Attorney General has not interposed an objection within
sixty days after such submission," as he did not, the
proposed statutory changes "may be enforced" without
the court's proceeding in the District of Columbia and
without resubmission to the Attorney General. Here
the proposal was properly submitted to the Attorney
1004 OCTOBER TERM, 1971
DOUGLAS, J., dissenting 405 U.S.
General and he took no acti-On by way of interposing an
objection within the allowed 60 days. I do not see how
the statute can be read or construed in any way other
than to the effect that the conditions of its proviso were
fulfilled and that the proposed new legislation was therefore
enforceable, subject, of course, to the statute's recognized
exception as to any contest on the merits. I see
nothing in Perkins v. Matthews, 400 U.S. 379,385 (1971),
that supports a contrary conclusion. In my view the
District Court's holding, when it equated nonaction by
the Attorney General with the interposition by him of
an objection, is without foundation in the statute.
With the promulgation on September 10, 1971, of "Procedures
for the Administration of Section 5 of the Voting
Rights Act of 1965," 36 Fed. Reg. 18186-18190, 28 CFR
§§ 51.1-51.29, and the specific procedure authorized for
the Attorney General by § 51.19, the problem should not
arise in the future.
MR. JUSTICE DouGLAS, dissenting.
I would not dismiss this appeal for nonjurisdictional
tardiness in docketing. There is no doubt that we have
statutory jurisdiction to hear this case under 42 U. S. C.
§ 1973c. And, no doubt we may waive our self-imposed
Rule 13 (1) inasmuch as "the requirement of docketing
within sixty days [is not a] limitation on our power to
hear [an] appeal." United Public Workers v. Mitchell,
330 U. S. 75, 86. But, as MR. JusTICE BLACKMUN observes,
ante, at 1001, this Court has failed to develop even
the shadow of a consistent practice concerning the effect
to be given an appellant's failure to docket within the
prescribed time. In some cases the defect has been fatal 1
1 Pittsburgh Towing Co. v. Mississippi VaUey Barge Line Co., 385
U.S. 32; Landry v. Boyle, 393 U.S. 220; Shapiro v. Doe, 396 U.S.
488; Stein v. Luken, 396 U. S. 555; United States v. Cotton, 397
U.S. 45; Cheley v. Parham, 404 U.S. 878.
ORDERS 1005
405 U.S. March 27, 1972
while in others it has been forgiven.2 This appeal was
docketed 66 days late. Yet in Johnson v. Florida, 391
U. S. 596, 598, we entertained without explanation an
appeal which was 56 days tardy. And, Mississippi's own
experience with the vagaries of our dispensation of waivers
has not been an illuminating one. In Whitley v. Williams,
decided with Allen v. State Board of Elections, 393 U. S.
544, another challenge to that State's voting laws, the
State was the appellee and the challenger's appeal was
docketed 60 days out of time. Nonetheless, the infraction
was passed over, the case was heard, and the District
Court was reversed.
I cannot acquiesce in an arbitrary practice which permits
the Court to sweep unpleasant cases under the rug.3
Unless we are willing to prescribe criteria for guiding our
granting of waivers of the docketing requirement, such
as we have done in Rule 19 for exercising our certiorari
discretion, then we should either enforce Rule 13 (1) for
all or for none.
No. 71-1003. HoRSE CREEK ROYALTY CORP. ET AL. v.
SOUTHLAND ROYALTY Co. ET AL. Appeal from Sup. Ct.
Wyo. dismissed for want of properly presented federal
question. Reported below: 489 P. 2d 214.
No. 71-5915. STRICKLAND ET AL. v. BOARD OF EnucATION,
SAN FRANCISCO UNIFIED SCHOOL DISTRICT, ET AL.
Appeal from Ct. App. Cal., 1st App. Dist., dismissed for
want of substantial federal question. Reported below:
20 Cal. App. 3d 83, 97 Cal. Rptr. 422.
2 United Public Workers v. Mitchell, 330 U.S. 75, 86; Johnson v.
Florida, 391 U. S. 596, 598; Whitley v. Williams, decided with
Allen v. State Board of Elections, 393 U. S. 544; see also Du.rham
v. United States, 401 U.S. 481 (Rule 22 (2) waiver).
3 This is not a frivolous appeal. Whatever the infirmities of the
Mississippi voting statute, there is a strong argument, as MR. JUSTICE
BLACKMUN indicates, that the District Court may have erred in
using § 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U. S. C.
§ 1973c, to enjoin its effectiveness.
1006 OCTOBER TERM, 1971
March 27, 1972 405 U.S.
No. 71-5948. PRESLER v. STATE DIVISION OF HUMAN
RIGHTS E'r AL. Appeal from Ct. App. K Y. dismissed
for want of jurisdiction. Treating the papers whereon
the appeal was taken as a petition for writ of certiorari,
certiorari denied.
Other Summary Disposition
No. 70-251. JosBPH v. UNITED STATES. C. A. 3d Cir.
[Certiorari granted. 404 U. S. 820.] After this Court
granted the writ of certiorari in this case, the Solicitor
General, in his Memorandum for the United States on
the merits, took a position different from that previously
asserted by the United States in the United States Court
of Appeals for the Third Circuit and in his opposition
to the petition for writ of certiorari. We therefore vacate
the judgment and remand the case for consideration
in light of the position now asserted by the Solicitor
General. Reported below: 438 F. 2d 1233.
MR. JUSTICE DouGLAS, with whom MR. JUSTICE MARSHALL
concurs, dissenting.
While I think the judgment should be vacated and
the case remanded, I would not do so on the Solicitor
General's confession of error, but rather for the reason
that meaningful administrative and judicial review of
Selective Service classification decisions is impossible
where the Service does not state reasons for its actions.
Joseph, then classified I-A, applied for a conscientious
objector exemption in April 1967. He stated in
his conscientious objector form (SSS Form 150) that
he believed in a Supreme Being, that he was a member
of the Nation of Islam (Black Muslims), and that he
had joined Muhammed's Mosque No. 12, in Philadelphia,
in April 1965, at the age of 17. He represented
the views of the Black Muslims regarding participation
in war as follows:
"We believe that we who declared ourselves to be
Rightous [sic] Muslims Should not Participate in
1006
ORDERS 1007
DouGLAs, J., dissenting
wars which take the lives of humans. We do not
believe this nation should force us to take part in
such wars, for we have nothing to gain from it
unless America agrees to give us the necessary territory
wherein we may have something to fight for."
Joseph's board met on June 8, 1967. Based on the
information in the SSS Form 150 and in the rest of
Joseph's file, but without the benefit of a meeting with
Joseph, the board voted unanimously to retain him in
Class I-A, and sent him a notice of classification (SSS
Form 110) to this effect. No reasons were given for the
classification decision.
The Solicitor General argues from the premise that
when the board acted, it effectively "reopened" Joseph's
classification. According to the Solicitor General, the
applicable regulations then in force prohibited a board
from reopening a classification without first determining
that a prima facie case had been made out. See 32
CFR §§ 1625·.2, 1625.4. "[N]ot prepared to assume"
that the board violated the reopening regulations, the
Solicitor General reasons that the fact of reopening must
therefore mean that the board had concluded (albeit
erroneously) that Joseph had made out a prima facie case,
and denied the claim because it questioned his sincerity.
The first difficulty with this argument is that a local
board may well have the power to reopen a classification
on a lesser showing than a prima facie case. See, e. g.,
United States v. Stephens, 445 F. 2d 192, 196 (CA3
1971). Second, the Solicitor General's argument rests
on the intent of the board. If the board did not think
that it was reopening, there would have been no reason
for it to worry about the prima facie case requirements
allegedly contained in the reopening regulations. And
the Solicitor General concedes that "some confusion"
as to whether the June 8 action was a "reopening" developed
at trial. Memorandum for the United States 18-19.
1008 OCTOBER TERM, 1971
Douous, J ., dissenting 405 U.S.
Assuming, however, that there was a reopening, the
Solicitor General's argument still fails, for the board's
subsequent handling of Joseph's claim rebuts any "presumption
of regularity" that might otherwise be appropriate.
Joseph's letter requesting an appeal from the
June 8, 1967, decision was received by the board July 6,
1967. The request was thus timely under 32 CFR
§ 1626.2 ( c) ( 1). No action was taken, however, until
August 1, 1967, when Joseph was notified that his "statutory
rights have expired," but that he was requested to
appear August 10, 1967, for an interview. Joseph appeared
as requested, and on August 14, 1967, the board
forwarded his file to the appeal board. There is no indication
in Joseph's file that the board took any action
as a result of the August 10 "interview."
The above course of action embodied several violations
of the Selective Service regulations. First, Joseph's statutory
rights had not expired on August I, 1967. His
appeal was timely, and was required to be processed
in accordance with 32 CFR § 1626.14, which stipulates
that "in no event shall [a registrant's] file be forwarded
[to the appeal board] later than five days after the
period for taking an appeal has elapsed." The board
violated this regulation by keeping Joseph's file past
July 13, 1967.
Had Joseph requested a personal appearance in the
letter written by him and received by the board on
July 6, 1967, the board would have been authorized
to retain his file. But he did not. The interview which
the board granted him was a mere courtesy. As such,
it was unauthorized by statute, United States v. Hayden,
445 F. 2d 1365, 1374 (CA9 1971), and could not
operate to relieve the board of its statutory obligation
to forward Joseph's file pursuant to the mandate of 32
CFR § 1626.14.
It can also be argued, from the fact that Joseph was
ORDERS 1009
1006 DouoLAs, J., dissenting
given an interview after the board received his letter
on July 6, 1967, that the letter was deemed a request
to reopen, as well as an appeal. There was testimony
at Joseph's trial that the board's failure to indicate any
action following the interview meant that it had refused
to reopen Joseph's classification. (Testimony of Mr.
Plaskow, App. 14.) But where a board refuses a registrant's
written request to reopen his classification, it
must so advise him, by letter, and it must place a copy
of the letter in his file. 32 CFR § 1625.4. Joseph's
board did not do so.
Whatever force the "presumption.of regularity" might
have in the ordinary case, it is a weak reed on which to
rest under these circumstances. But the "presumption"
is the linchpin of the Solicitor General's analysis; without
it, a number of alternate hypotheses become as
plausible as if not more plausible than that offered by
the Solicitor General.
For example, it was the Government's consistent position,
until the Solicitor General's cunfession in Clay v.
United States, 403 U. S. 698, that conscientious objector
claims based on Black Muslim teachings did not satisfy
the statutory requirement that they be based on "religious
training and belief." The Justice Department letter
quoted in Clay, supra, is representative of the Government's
views at the time that Joseph's claim was
under consideration:
"It seems clear that the teachings of the Nation of
Islam preclude fighting for the United States not
because of objections to participation in war in any
form but rather because of political and racial objections
to policies of the United States as interpreted
by Elijah Muhammad. . . . It is therefore
our conclusion that registrant's claimed objections
to participation in war insofar as they are based
upon the teachings of the Nation of Islam, rest on
1010 OCTOBER TERM, 1971
DouGLAS, J., dissenting 405 U.S.
grounds which primarily are political and racial."
403 U. S., at 702.
If one is to decide this case by speculation and assumption,
a likely analysis is that Joseph's local board knew
of, and followed, the Justice Department's articulated
policy with respect to Black Muslim conscientious objector
claims. Joseph stated in his SSS Form 150, "I
receive my training from the honorable Elijah Muhammad
Last Messenger of Allah Leader and Teacher of
the Nation of Islam here in The Wilderous [sic] of
North America." Given the Government's oft-articulated
views as to the insufficiency of such teachings to support
a conscientious objector claim, Joseph's local board may
well have denied his exemption for failure to demonstrate
it was based on "religious training and belief."
The Solicitor General concedes that such a ground would
have been clear error. Memorandum for the United
States 14 n. 13. See Clay, supra, at 703.
There is also the possibility that Joseph's board thought
him to be a selective objector, because his statement of
belief left open the possibility that he might fight if
"America agrees to give us the necessary territory wherein
we may have something to fight for." The Solicitor
General strenuously insists that this is indeed the correct
analysis of Joseph's claim.1
Finally, there is the difficulty inherent in accepting the
Solicitor General's assumption that Joseph's claim was
not denied for failure to meet any of the statutory criteria,
but for insincerity. It is well settled that mere disbelief
in the sincerity of a registrant, based on no objective
evidence of insincerity, will not suffice to deny a con-
1 Joseph argues persuasively, however, that this statement is
nothing more than the Muslim equivalent of a Jehovah's Witness'
declaration that he will fight in defense of "Kingdom Interests."
Sicurella v. United States, 348 U. S. 385. See Brief for Petitioner
23-25.
ORDERS 1011
1006 DouGLAS, J., dissenting
Acientious objector claim once a prima facie case is made
out. Dickinson v. United States, 346 U. S. 389; United
States v. Hayden, supra, at 1373. The "evidence of insincerity"
pointed to by the Solicitor General is ambiguous
at best. He notes that Joseph joined the Muslims a year
before he first registered for the draft, and two years before
filing for his conscientious objector exemption, but
that he made no claim to conscientious objector status in
his Classification Questionnaire, and no subsequent claim
of late crystallization. By themselves, these facts seem
insufficient. Joseph was a 17-year-old high school dropout
when he became a Muslim. His lack of sophistication
and minimal writing skills are apparent from his communications
with the board. If we are to assume with
the Solicitor General that Joseph's board found he made
out a prima facie case, I should think it also follows that
the board, having gone thus far, would make further inquiries
into Joseph's sincerity rather than rely on such
an ambiguous and inartful record.2
These speculations should not be taken to mean that
I think the Solicitor General's analysis should be rejected.
It is perhaps no less probable than the alternatives
that I have suggested. The point is that it is no more
probable.
2 Other alleged indicia of insincerity need little r.ommPnt. Many
smokers would take issue with the Solicitor General's attempt to demean
Joseph's statement that his ability to give up smoking was a
demonstration of his faith. And, the statement by an unknown Army
official that a psychological interview of petitioner revealed him to
have "a mature attitude and interest in the Armed Forces" is ~imply
meaningless without more information as to the nature of the interview
in question and the particular responses on which the Army's
conclusory remark \Vas based. Moreover, the interview took place
over five months before petitioner first filed his conscientious objector
claim, and thus certainly cannot be taken as representing his
views at the time his conscientious objector dflim was denied.
1012 OCTOBER TERM, 1971
DouGLAs, J ., dissenting 405 U.S.
Joseph's local and appeal boards might have denied
his claim because he was thought to be insincere, because
his Black Muslim beliefs were not thought to be religious,
because he was thought to be a selective objector, or perhaps
for some other reason not apparent from the record.
Viewing this bare record from our perspective, there is
simply no way to decide why it was that Joseph's claim
was denied.3
The conviction must be reversed, therefore, not because
Joseph made out a prima facie case and is thereby
entitled to reasons, but because without a statement of
reasons, it is impossible even to tell if Joseph's prima
facie showing was a relevant factor in the administrative
process:" I would require the Selective Service to pro-
3 The "de twvo" review undertaken by the appeal board suffers
from this same deficiency. We do not know why the appeal board
affirmed the lower board's action, for it, too, gave no reasons. And,
the appeal board is just as much in the dark as we are with respect
to the basis for the lower board's action. "The Appeal Boards are
no more entitled to speculate as to the basis for Local Board action
than are reviewing courts." United States v. Speicher, 439 F. 2d
104, 108 (CA3 1971). The appeal board, of course, should also be
required to give reasons, for the proposition "[t]hat judicial review
of two administrative agency act.ions unsupported by reasons is
somehow less futile than judicial review of one such action," id., at
107, is clearly untenable.
• This analysis is unchanged by the fact that the Administrative
Procedure Act is not directly applicable to agency action under the
Military Selective Service Act of 1967. See 50 U. S. C. App. § 463
(b). It remains a "simple but fundamental rule of administrative
law ... [that if] the administrative action is to be tested by the
basis upon which it purports to rest, that basis must be set forth with
such clarity as to be understandable. It will not do for a court to
be compelled to guess at the theory underlying the agency's action."
SEC v. Chenery Corp., 332 U. S. 194, 196-197.
Thus, in analyzing an NLRB decision dealing with the process
of certifying labor representatives, a process expressly exempt from
the formal procedural requirements of the Administrative Procedure
Act, see 5 U.S. C. § 554 (a)(6), the Court squarely held that
ORDERS 1013
405 u. s. March 27, 1972
vide a concise statement of reasons whenever a requested
classification is denied, and whatever the administrative
level at which the denial takes place.
Certiorari Granted-Vacated and Remanded
No. 71-5840. LENHARD v. UNITED STATES. C. A. 2d
Cir. In his memorandum for the United States in response
to petition for writ of certiorari in this case, filed
February 1, 1972, the Solicitor General asserted a position
different from that previously asserted by the United
States in the United States Court of Appeals for the
Second Circuit. We therefore grant the petition, vacate
the judgment, and remand case to that court for consideration
in light of the position now asserted by the
Solicitor General.
the Board's determination could not stand unless supported by a
statement of reasons:
"When the Board so exercises the discretion given to it by Congress,
it must 'disclose the basis of its order' and 'give clear indication
that it has exercised the discretion with which Congress has
empowered it.' Phelps Dodge Corp. v. Labor Board, 313 U. S. 177,
197. See Burlington Truck Lines v. United States, 371 U. S. 156,
167-169; Interstate Commerce Comm'n v. J-T Transport Co., 368
U. S. 81, 93. Although Board counsel in his brief and argument
before this Court has rationalized the different unit determinations
in the variant factual situations of these cases on criteria other than
a controlling effect being given to the extent of organization, the
integrity of the administrative process requires that 'courts may not
accept appellate counsel's post hoc rationalizations for agency action
.... ' Burlington Truck Lines v. United States, supra, at 168;
see Securities & Exchange Comm'n v. Chenery Corp., 332 U. S. 194,
196. For reviewing courts to substitute counsel's rationale or their
discretion for that of the Board is incompatible with the orderly
function of the process of judicial review. Such action would not
vindicate, but would deprecate the administrative process for it
would 'propel the court into the domain which Congress has set
aside exclusively for the administrative agency.' Securities & Exchange
Comm'n v. Chenery Corp., supra, at 196." NLRB v. Metropolitan
Ins. Co., 380 U. S. 438, 443-444 (footnote omitted).
1014 OCTOBER TERM, 1971
March 27, 1972 405 U.S.
No. 70--5056. ST. CLAIR v. SELECTIVE SERVICE LOCAL
BOARD No. 35, BROOKLYN, NEw YoRK, ET AL. C. A. 2d
Cir. Motion for leave to proceed in forma pauperis and
certiorari granted. .Judgment vacated and case remanded
for further consideration in light of Fein v. Selective
Service System, ante, p. 365. MR. JUSTICE POWELL and
MR. JusTICE REHNQUIST took no part in the consideration
or decision of this case.
No. 71-316. BLATT v. LOCAL BoARD No. 116, FREDERICKSBURG
CITY SELECTIVE SERVICE SYSTEM, ET AL.
C. A. 4th Cir. Certiorari granted, judgment vacated, and
case remanded for further consideration in light of Fein
v. Selective Service System, ante, p. 365. MR. JUSTICE
PowELL and MR. JusTICE REHNQUIST took no part in
the consideration or decision of this case. Reported below:
443 F. 2d 304.
No. 71-448. l\foRGAN v. MELCHAR ET AL. C. A. 3d
Cir. Certiorari granted, judgment vacated, and case
remanded for further consideration in light of Fein v.
Selective Service System, ante, p. 365. MR. JUSTICE
POWELL and MR. JUSTICE REHNQUIST took no part in
the consideration or decision of this case. Reported below:
442 F. 2d 1082.
1vl iscellaneous Orders
No. A-986. WASHINGTON STATE LABOR CouNCIL,
AFL--CIO v. JERTBERG ET AL. D. C. \V. D. Wash. Application
for temporary stay presented to MR. JUSTICE
DOUGLAS, and by him referred to the Court, denied.
No. 40, Orig. PENNSYLVANIA v. NEw YoRK ET AL.
Motion of State of Pennsylvania for additional time for
oral argument granted and a total of 45 minutes allotted
to each side for oral argument, the time to be allocated
by the parties. lFor earlier orders herein, see, e. g., 404 u. s. 988.J
ORDERS 1015
405 U.S. March 27, 1972
No. 45, Orig. WASHINGTON ET AL. v. GENERAL MOTORS
CoRP. ET AL. Motion of plaintiffs for leave to file supplemental
brief after argument granted. [For earlier
orders herein, see, e. g., 402 U. S. 940.]
No. 71-492. LLOYD CoRP., LTD. v. TANNER ET AL.
C. A. 9th Cir. [Certiorari granted, 404 U. S. 1037.]
Motions of Homart Development Co. and American Retail
Federation for leave to file briefs as amici curiae
granted. Motion of Homart Development Co. for leave
to participate in oral argument as amicus curiae denied.
No. 71-506. UNITED STATES ET AL. v. MIDWEST VIDEO
CoRP. C. A. 8th Cir. [Certiorari granted, 404 U. S.
1014.] Motion of State of Illinois for leave to participate
in oral argument as amicus curiae denied.
No. 71-1016. FEDERAL PowER CoMMISSION v. LOUISIANA
PowER & LIGHT Co. ET AL.; and
No. 71-1040. UNITED GAs PIPE LINE Co. ET AL. v.
LOUISIANA POWER & LIGHT Co. ET AL. C. A. 5th Cir.
[ Certiorari granted, ante, p. 973.] Motions of Brooklyn
Union Gas Co., Public Service Commission of State
of New York, Columbia Gas Transmission Corp., and
Pipeline Intervenors for leave to file briefs as amici
curiae granted.
No. 71-5933. TANNER v. TwoMEY, WARDEN, ET AL.
Motion for leave to file petition for writ of habeas corpus
denied.
No. 71-5571. RoDRIQUEz v. CADY, WARDEN, ET AL.
Motion for leave to file petition for writ of habeas corpus
and other relief denied.
No. 71-5936. GAGLIE v. UNITED STATES DISTRICT
CouRT FOR CENTRAL DISTRICT OF CALIFORNIA. Motion
for leave to file petition for writ of mandamus denied.
1016 OCTOBER TERM, 1971
March 27, 1972 405 U.S.
Certiorari Granted
No. 71-1021. EMPLOYEES OF THE DEPARTMENT OF
PUBLIC HEALTH AND WELFARE OF MISSOURI ET AL. V.
DEPARTMENT OF PUBLIC HEALTH AND WELFARE OF MISSOURI
ET AL. C. A. 8th Cir. Certiorari granted. Reported
below: 452 F. 2d 820.
Certiorari Denied. (See also No. 71-5948, supra.)
No. 71-640. SAN DIEGO UNIFIED SCHOOL DISTRICT
v. CALIFORNIA. Ct. App. Cal., 4th App. Dist. Certiorari
denied. Reported below: 19 Cal. App. 3d 252, 96
Cal. Rptr. 658.
No. 71-803. MASON v. CALIFORNIA. Sup. Ct. Cal.
Certiorari denied. Reported below: 5 Cal. 3d 759, 488
P. 2d 630.
No. 71-901. GROOB v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 451 F. 2d
1210.
No. 71-912. WILSON v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 440 F. 2d 1103
and 450 F. 2d 795.
No. 71-921. F1scHETT1 ET AL. v. UNITED STATES.
C. A. 5th Cir. Certiorari denied. Reported below: 450
F. 2d 34.
No. 71-935. CHASON v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 451 F. 2d 301.
No. 71-937. HOLMES v. UNITED STATES; and
No. 71-5961. MATTHEWS v. UNITED STATES. C. A.
7th Cir. Certiorari denied. Reported below: 452 F. 2d
249.
No. 71-952. KOVTUN ET AL. V . COMMISSIONER OF
INTERNAL REVENUE. C. A. 9th Cir. Certiorari denied.
Reported below: 448 F. 2d 1268.
ORDERS 1017
405 U.S. March 27, 1972
No. 71-990. SPERRY RAND CORP. v. A-T-O, INC.,
FORMERLY AUTOMATIC SPRINKLER CORP. OF AMERICA, ET
AL. C. A. 4th Cir. Certiorari denied. Reported below:
447 F. 2d 1387.
No. 71-1009. LINDAUER v. OKLAHOMA CITY URBAN
RENEWAL AUTHORITY ET AL. C. A. 10th Cir. Certiorari
denied. Reported below: 452 F. 2d 117.
No. 71-1015. SCHROEDER ET ux. v. BusENHART ET
AL. App. Ct. III., 1st Dist. Certiorari denied. Reported
below: 133 Ill. App. 2d 180, 272 N. E. 2d 750.
No. 71-1020. PHILADELPHIA CHEWING GuM CoRP.
v. SoMPORTEx LTD. ET AL. C. A. 3d Cir. Certiorari
denied. Reported below: 453 F. 2d 435.
No. 71-1061. ARNESON PRODUCTS, INc., ET AL. v.
BLUMENFELD. Ct. App. Cal., 1st App. Dist. Certiorari
denied.
No. 71-5906. ANSTEAD v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. Reported below: 451 F. 2d 314.
No. 71-5911. OVERTON v. NEw YORK. App. Div.,
Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.
No. 71-5913. ROBINSON, AKA BEASLEY v. NORTH
CAROLINA. Sup. Ct. N. C. Certiorari denied. Reported
below: 279 N. C. 495, 183 S. E. 2d 650.
No. 71-5917. CRONAN ET AL. v. UNITED STATES.
C. A. 5th Cir. Certiorari denied. Reported below: 447
F. 2d 1303.
No. 71-5919. MENDOZA v. ILLINOIS. App. Ct. Ill.,
1st Dist. Certiorari denied. Reported below: 132 Ill.
App. 2d 571, 270 N. E. 2d 540.
No. 71- 5922. JOHNSON v. TURNER, WARDEN. C. A.
10th Cir. Certiorari denied.
1018 OCTOBER TERM, 1971
:March 27, 1972 405 U.S.
No. 71-5921. MAHAFFEY v. TEXAS. Ct. Crim. App.
Tex. Certiorari denied. Reported below: 471 S. W. 2d
801.
No. 71-5926. JoNES v. CROUSE, WARDEN. C. A. 10th
Cir. Certiorari denied. Reported below: 447 F. 2d
1395.
No. 71-5927. JOHNSON v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. Reported below: 451 F. 2d
1321.
No. 71-5928. DRAKEFORD v. UNITED STATES. C. A.
4th Cir. Certiorari denied.
No. 71-5929. WATTS v. KEW JERSEY. C. A. 3d Cir.
Certiorari denied.
No. 71-5931. ScHOORE v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 449 F. 2d 348.
No. 71- 5935. LEWIS v. KENTUCKY. Ct. App. Ky.
Certiorari denied. Reported below: 472 S. W. 2d 65.
No. 71-5940. SCHROEDER v. BucHKOE, WARDEN.
C. A. 6th Cir. Certiorari denied.
No. 71-5942. ARRIAGADA v. UNITED STATES. C. A.
4th Cir. Certiorari denied. Reported below: 451 F. 2d
487.
No. 71-5943. BRAYTON ET AL. v. HOLLOPETER ET AL.
Sup. Ct. Ohio. Certiorari denied.
No. 71- 5944. KYLE v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. Reported below: 446 F. 2d 1195.
No. 71-5945. DOWELL v. JOHNSON, WARDEN. C. A.
6th Cir. Certiorari denied.
No. 71-5950. DOLLAR v. CALIFORNIA. C. A. 9th Cir.
Certiorari denied.
ORDERS 1019
405 U.S. March 27, 1972
No. 71-5951. TATRO v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. Reported below: 452 F. 2d 1207.
No. 71-5953. KENNEDY v. UNITED STATES. C. A. 5th
Cir. Certiorari denied.
No. 71-5954. CASTRO v. YEAGER, PRINCIPAL KEEPER.
C. A. 3d Cir. Certiorari denied.
No. 71-5955. GAFFORD v. \VARDEN, LEAVENWORTH
PENITENTIARY, ET Al.. C. A. 10th Cir. Certiorari denied.
No. 71-5958. HoLMES v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
No. 71-5959. CALHOUN v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 454 F. 2d 702.
No. 71-5963. TYLER v. PARKS ET AL. C. A. 8th Cir.
Certiorari denied.
No. 71-6252. RAY v. UNITED STATES DISTRICT CouRT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. C. A. 3d
Cir. Certiorari denied.
No. 71-558. HEYD, SHERIFF v. BASTIDA. C. A. 5th
Cir. Motion of respondent for leave to proceed in
f orma pauperis granted. Certiorari denied. Reported
below: 444 F. 2d 396.
No. 71-605. HENRY ET AL. v. CLAIBORNE HARDWARE
Co. ET AL. C. A. 5th Cir. Certiorari denied. MR. Jus-
TICE DOUGLAS is of the opinion that certiorari should be
granted. MR. JusTICE MARSHALL took no part in the
consideration or decision of this petition. Reported
below: 444 F. 2d 1300.
No. 71-806. WEHINGER v. CALIFORNIA. Ct. App.
Cal., 1st App. Dist. Certiorari denied. MR. JusTICE
DouGLAS is of the opinion that certiorari should be
granted.
1020 OCTOBER TERM, 1971
March 27, 1972 405 u. s.
No. 71-615. CHAPMAN v. CALIFORNIA. Ct. App. Cal.,
1st App. Dist. It appearing the state court decision is
not final, certiorari denied. Reported below: 17 Cal.
App. 3d 865, 95 Cal. Rptr. 242.
MR. JusTICE DouGLAS, with whom MR. JUSTICE BRENNAN
and MR. JusTICE MARSHALL concur, dissenting.
Petitioner operates a bookstore in Fremont, California.
On two occasions, a police officer visited the store and
purchased four magazines and one paperback novel.
While in the store the second time, the officer also
"looked at parts" of 12 additional magazines and 14
other paperback books which were on petitioner's shelves.
Based upon a reading of the four magazines, portions
of the book, and the officer's conclusory affidavit, a
magistrate issued an ex parte search warrant authorizing
the seizure of the publications the officer had earlier purchased
or perused. The warrant was executed and 78
copies of 35 different titles were seized. Among the
items seized were 19 copies of nine magazines not specified
in the warrant and apparently not previously evaluated
by a magistrate.
Petitioner was charged with the sale or distribution
of obscene matter in violation of Cal. Penal Code § 311.2.
Petitioner made a motion under § § 1538.5, 1539, and 1540
of the Cal. Penal Code to suppress the evidence and to
return the property seized. The municipal court ordered
the return of the books which had not been specified in
the warrant and of one book which it found not to be
obscene.1 It denied petitioner's motion in all other re-
1 It does not appear that the respondent appealed from that portion
of the municipal court's order suppressing the books which
had not been specified in the warrant or which had been found not
to be obscene. The Court of Appeal nonetheless upheld the admissibility
of those books which had not been specified in the warrant
and vacated the municipal court's order to the contrary,
ORDERS 1021
1020 DouGLAS, J ., dissenting
spects. On appeal, the Appellate Department of the
Superior Court ordered the suppression of those items
which had been seized without a prior adversary hearing
on their obscenity vel non but affirmed the municipal
court with regard to the materials which had been
purchased. The State then appealed and the Court of
Appeal reversed in part the judgment of the Appellate
Department and vacated in part the judgment of the
municipal court, thereby allowing the admission into
evidence of all the items except the one which had been
determined not to be obscene. 17 Cal. App. 3d 865, 95
Cal. Rptr. 242. The Supreme Court of California denied
a hearing and petitioner now seeks a writ of certiorari.
Our jurisdiction to review decisions of state courts is
limited to "[f]inal judgments or decrees rendered by the
highest court of a State in which a decision could be
had .... " 28 U. S. C. § 1257. The finality requirement,
which has been with us since the Judiciary Act
of 1789, § 25, 1 Stat. 85, is "[d]esigned to avoid the
evils of piecemeal review," Republic Natural Gas Co. v.
Oklahoma, 334 U. S. 62, 67, and is founded upon "considerations
generally applicable to good judicial administration."
Radio Station WOW, Inc. v. Johnson, 326
U. S. 120, 124. Our decisions make clear, however, that
"this provision of the statute [has long been given a]
practical rather than a technical construction." Cohen
v. Beneficial Loan Corp., 337 U. S. 541, 546. Thus,
where denial of review would effectively foreclose our
later consideration of a federal claim, California v.
Stewart, 383 U. S. 903, 384 U. S. 436, 498 n. 71; Hill v.
Chicago & Evanston R. Co., 140 U.S. 52, 54; where postponement
of review would seriously erode a federal
policy, Construction Laborers v. Curry, 371 U.S. 542, 550;
Rosenblatt v. American Cyanamid Co., 86 S. Ct. 1, 3;
or where determination of preliminary questions might
1022 OCTOBER TERM, 1971
DouGLAs, J ., dissenting 405 U.S.
avoid subsequent litigation, Mercantile National Bank
v. Langdeau, 371 U. S. 555, 558, we have determined
that the requirement of finality had been satisfied.
Similarly, where the subsequent proceedings in state
court would deny the federal right for the vindication
of which review was sought, we have concluded that the
case was final. See, e. g., Klopfer v. North Carolina, 386
U. S. 213 (speedy trial); Harr'is v. Washington, 404
U. S. 55 (double jeopardy); Colombo v. New York,
ante, p. 9 (double _jeopardy). And, as MR. JUSTICE
WHITE indicated for the Court in Mercantile National
Bank v. Langdeau, supra, at 558, we have found the
policies underlying § 1257 satisfied where the matter to
be reviewed was entirely "separate and independent"
from those to be raised in the subsequent state
proceedings. 2
In Mills v. Alabama, 384 U. S. 214, a case strikingly
similar to the present one, we determined that the finality
requirement had been met. There, the trial court had
sustained a demurrer to the complaint, but the Supreme
Court of Alabama reversed and remanded for trial.
Mr. Justice Black, speaking for eight members of the
Court, concluded that we had jurisdiction under § 1257:
"The State has moved to dismiss this appeal on
the ground that the Alabama Supreme Court's
judgment is not a 'final judgment' and therefore not
appealable under § 1257. The State argues that
2 "This is a separate and independent matter, anterior to the
merits and not enmeshed in the factual and legal issues comprising
the plaintiff's cause of action. Moreover, we believe that it serves
the policy underlying the requirement of finality in 28 U. S. C.
§ 1257 to determine now in which state court appellants may be
tried rather than to subject them, and appellee, to long and complex
litigation which may all be for naught if consideration of the
preliminary question of venue is postponed until the conclusion of
the proceedings." 371 U. S., at 558.
1020
ORDERS 1023
DoUGLAs, J., dissenting
since the Alabama Supreme Court remanded the
case to the trial court for further proceedings not
inconsistent with its opinion ( which would include
a trial), the Supreme Court's judgment cannot be
considered 'final.' This argument has a surface
plausibility, since it is true the judgment of the
State Supreme Court did not literally end the case.
It did, however, render a judgment binding upon
the trial court that it must convict Mills under this
state statute if he wrote and published the editorial.
Mills concedes that he did, and he therefore
has no defense in the Alabama trial court.
Thus if the case goes back to the trial court, the
trial, so far as this record shows, would be no more
than a few formal gestures leading inexorably towards
a conviction, and then another appeal to the
Alabama Supreme Court for it formally to repeat
its rejection of Mills' constitutional contentions
whereupon the case could then once more wind its
weary way back to us as a judgment unquestionably
final and appealable. Such a roundabout process
would not only be an inexcusable delay of the
benefits Congress intended to grant by providing for
appeal to this Court, but it would also result in
a completely unnecessary waste of time and energy
in judicial systems already troubled by delays due
to congested dockets. The language of § 1257 as
we construed it in Pope v. Atlantic Coast Line R.
Co., 345 U. S. 379, 381-383, does not require a
result leading to such consequences. See also Construction
Laborers v. Curry, 371 U. S. 542, 548-551;
Richfield Oil Corp. v. State Board, 329 U. S. 69, 72-
74. Following those cases we hold that we have
jurisdiction." 384 U. S., at 217-218. (Footnotes
omitted.)
1024 OCTOBER TERM, 1971
DOUGLAS, J., dissenting 405U.S.
In a concurring opinion joined by Ma. JUSTICE BRENNAN,
I said:
"We deal here with the rights of free speech and
press in a basic form: the right to express views on
matters before the electorate. In light of appellant's
concession that he has no other defense to
offer should the case go to trial, and considering
the importance of the First Amendment rights at
stake in this litigation, it would require regard for
some remote, theoretical interests of federalism to
conclude that this Court lacks jurisdiction because
of the unlikely possibility that a jury might disregard
a trial judge's instructions and acquit.
"Indeed, even had appellant been unwilling to
concede that he has no defense-apart from the
constitutional question-to the charges against him,
we would be warranted in reviewing this case. That
result follows a fortiori from our holdings that
where First Amendment rights are jeopardized by
a state prosecution which, by its very nature,
threatens to deter others from exercising their First
Amendment rights, a federal court will take the
extraordinary step of enjoining the state prosecution."
384 U. S., at 221. (Citations omitted.)
The issues petitioner tenders are important ones.
They go to the constitutionality of mass seizures of
materials presumptively protected by the First Amendment,
Quantity of Books v. Kansas, 378 U.S. 205; Mare,-
us v. Search Warrant, 367 U. S. 717; the need for a
prior adversary hearing before protected materials are
condemned as obscene, Lee Art Theatre, Inc. v. Virginia,
392 U.S. 636; Quantity of Books v. Kansas, supra;
the procedural burdens which must be overcome to
secure the return of protected materials, United States v.
Thirty-seven Photographs, 402 U. S. 363; cf. Freedman
ORDERS 1025
1020 DOUGLAS, J ., dissenting
v. Maryland, 380 U. S. 51; the sufficiency of the officer's
affidavit, the seizure of materials not specified in the
warrant, Stanley v. Georgw, 394 U. S. 557, 569 (STEWART,
J., concurring); Marron v. United States, 275 U. S.
192; and, of course, the obscenity vel non of the
publications.
No significant question of fact or law remains for
trial. It seems beyond argument that petitioner possessed
the publications in question "for sale or distribution."
Cal. Penal Code § 311.2. Petitioner's only
viable defenses appear to be whether the publications
were constitutionally protected and whether their seizure
in some way was procedurally defective. These issues
were passed upon by the courts below and are now before
us for decision.
The purpose of furthering economy in judicial administration
would plainly be served by deciding these questions
now rather than by sending petitioner through
the formalities of a trial and months-if not years-of
repetitious appellate review before allowing him to present
to this Court again the very issues that are here
now.3 Ca1ifornia has sought to conserve its judicial
resources by providing pretrial appellate review of suppression
hearings. Where the admissibility of evidence
is the only real issue, this policy generally results either
in the prompt dismissal of the charges without trial or
in a plea bargain and guilty plea. The interests in the
smooth working of our federal system and our accommodation
of California's interests in pretrial adjudication
of dispositive questions of law dictate that we not
postpone our consideration of the federal questions now
presented.
3 Even if the California courts refuse to reconsider their earlier
rulings, petitioner will be free to present the same claims now raised
in the present petition for a writ of certiorari. R. Stern & E. Gressman,
Supreme Court Practice 102 ( 4th ed. 1969).
1026 OCTOBER TERM, 1971
March 27, 1972 405U.S.
This is not a case involving only a pretrial motion
to suppress. Rather, the motion now before us embraces
all of the evidence the prosecution will introduce
at trial and common to all of these items is the
issue of their obscenity vel non. Mills v. Alabama,
supra, teaches that where First Amendment rights are
involved, compliance with procedural formalities before
allowing their vindication in this Court is not necessary
unless those procedures are meaningful.
I would follow Mills and grant the petition for a writ
of certiorari and put the case down for argument.
No. 71-816. DuN & BRADSTREET, INc. v. KANSAS
ELECTRIC SUPPLY Co., !Nc. C. A. 10th Cir. Certiorari
denied. MR. JUSTICE DouGLAS is of the opinion that
certiorari should be granted. Reported below: 448 F.
2d 647.
No. 71-938. WINNEBAGO TRIBE OF NEBRASKA v.
UNITED STATES. C. A. 8th Cir. Certiorari denied. MR.
JUSTICE DouGLAS is of the opinion that certiorari should
be granted. Reported below: 451 F. 2d 667.
No. 71-1008. HAWKINS v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. MR. JUSTICE DOUGLAS is of the
opinion that certiorari should be granted.
No. 71-5912. WILLIAMSON ET AL. v. UNITED STATES.
C. A. 5th Cir. Certiorari denied.* MR. JUSTICE BRENNAN
would grant the petition and set case for argument.
Reported below: 450 F. 2d 585.
MR. JusTICE DOUGLAS, dissenting.
Petitioners were suspected of maintaining an illicit
whiskey still in violation of federal tax statutes. To secure
evidence against them the Treasury Department
*[REPORTER'S NoTE: The following statement of MR. JusTICE
BRENNAN and dissenting opinion of Ma. JUSTICE Douous were filed
on April 3, 1972.J
ORDERS 1027
1026 DOUGLAS, J., dissenting
planted in their midst an undercover agent who posed as
a truck driver of their vendee. After gaining their confidence,
this agent on 17 occasions in 1968, after our decision
in Katz v. United States, 389 U. S. 347, telephoned
either petitioner James Williamson or a coconspirator, one
Hutcheson, for the ostensible purpose of finalizing arrangements
for the delivery of their product. During
their conversations, the agent was in a position to shape
and guide the content and direction of their discussions
and to elicit damaging admissions. All of these communications
were intercepted and recorded by another
federal officer who acted without a warrant and without
the petitioner's knowledge but, of course, with the full
cooperation of the Treasury plant. After the officers obtained
satisfactory evidence against the pair, they were
arrested, indicted, and convicted after a trial, at which all
of the recordings were played, over objection, for the jury.
As I have discussed before, electronic eavesdropping
early crept into our law as a means of combating "fifth
column" activities during wartime.1 Later, it was said
that this weapon was essential in the battle against
organized crime. Now we learn that the omnipresent
electronic ear is stalking the hill country in search of
moonshiners. Apparently, no suspect is too unimportant
to escape its reach.
Nor is any person too important to be excluded from
the Government's dossiers. Information recently presented
to the Senate Subcommittee on Constitutional
Rights discloses that subjects of Army intelligence oper-
1 See Appendix I to my dissent in United States v. White, 401
U. S. 745, 766-767. I have expressed in more detail than here my
opposition to various forms of electronic spying in Katz v. United
States, 389 U.S. 347; Beruer v. New York, 388 U.S. 41; Osborn
v. United States, 385 U.S. 323; Pugach v. Dollinuer, 365 U.S. 458;
Silverman v. United States, 365 U. S. 505; On Lee v. United States,
343 u. s. 747.
1028 OCTOBER TERM, 1971
DouGLAS, J ., dissenting 405 U.S.
ations have included Senators Fred Harris, Harold
Hughes, Edward Kennedy, George McGovern, and Edmund
Muskie.2 The list also included five United States
Representatives 3 and four Governors.4 Indeed, the
electronic ear was said to have turned on a Justice of
this Court.5 The Subcommittee found that the catalogue
of organizations that had been subjected to surveillance
embraced the NAACP, the ACLU, Operation Breadbasket,
the Urban League, and the States' Rights Party.6
Its hearings also revealed that Army spies had infiltrated
Resurrection City,7 the Poor People's Campaign,8 both
nominating conventions in 1968,9 black studies programs,10
and anti-war groups.11
Senator Ervin, who chaired these hearings, warns this
Court in an amicus brief in another case, that "it is not
an exaggeration to talk in terms of hundreds of thousands
of individuals, organizations, events, and dossiers." 12
After related hearings concerning federal wiretapping,
Senator Edward Kennedy only months ago warned his
2 N. Y. Times, Feb. 29, 1972, p. 1, col. 3.
3 Id., at cols. 3--4. The list named Representatives Philip Crane,
John Rarick, and Don Edwards, and former Representatives Adam
Clayton Powell and Allard L"owenstein.
4 /d., at col. 4. The list named Governors Sargent of Massachusetts
and Curtis of Maine; former Governors Hoff of Vermont and
Kerner of Illinois; and Lieutenant Governor Hayes of Vermont.
5 Id., at col. 4.
6 Amicus Curiae Brief submitted by Senator Sam Ervin, Jr., Chairman
of the Subcommittee on Constitutional Rights, in Laird v.
Tatum, No. 71-288, 0. T. 1971, p. 10.
7 Federal Data Banks, Computers and the Bill of Rights, Hearings
before the Subcommittee on Constitutional Rights of the Senate
Committee on the Judiciary, 92d Cong., 1st Sess., pt. 1, pp. 197-198
(1971).
8 Id., at 197.
9 Id., at 198-200.
10 Id., at 201, 296.
11 Ibid.
12 Amicus Brief, supra, n. 6, at 8.
ORDERS 1029
1026 DouGLAS, J., dissenting
colleagues of "the frightening possibility that the conversations
of untold thousands of citizens of this country
are being monitored on secret devices which no judge
has authorized and which may remain in operation for
months and perhaps years at a time." 13
Although the problem is an enormous and recurring
one, our decisions have not articulated a coherent response.
Ironically, if petitioner James Williamson had
confided in a genuine confederate rather than in a spy,
there would be no doubt that the warrantless seizure of
his telephonic communications would have offended Katz
v. United States, supra. It was said, however, by a plurality
in United States v. White, 401 U. S. 745, that
speakers simply must assume the risk that their confidants
may tattle, and, therefore, they should assume the further
risk that every word they utter will be instantaneously
fed into a recorder. Yet there is a significant "qualitative
difference" between electronic surveillance and conventional
police stratagems such as eavesdropping and disguise.
Lopez v. United States, 373 U. S. 427, 465 (dissenting
opinion) . That chasm cannot be bridged simply
by invoking the conclusory proposition that one must
assume the risk of being subjected to electronic surveillance.
Under that reasoning we might also have held
that Katz should have assumed the risk that his telephone
booth was bugged. Obviously, citizens must bear only
those threats to privacy which we decide to impose.
The ruse employed by the Government in this case has
still a further offensive characteristic. Here the agents
had the opportunity not only to destroy a petitioner's
privacy but to interrogate him in a clandestine fashion
without the warnings required by Miranda v. Arizona,
384 U. S. 436, without the assistance of counsel, and
13 Letter to members of the Subcommittee on Administrative Practice
and Procedure of the Senate Committee on the Judiciary, from
Senator Edward Kennedy, Dec. 17, 1971, pp. 2-3.
1030 OCTOBER TERM, 1971
March 27, 1972 405 u. s.
without knowledge that every word he spoke would be
replayed to a court. Yet under the plurality reasoning
in White such deception is permitted. Thus, both Katz
and Miranda can be circumvented through the simple
expedient of injecting a secret agent into a suspect
situation.
I would grant this petition.
No. 71-5934. CARROLL v. BETO, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Certiorari denied. MR. JusTICE
DouGLAS is of the opinion that certiorari should be
granted. Reported below: 446 F. 2d 648.
No. 71-5956. BOGACKI v. BOARD OF SuPERVISORS OF
RIVERSIDE COUNTY ET AL. Sup. Ct. Cal. Certiorari
denied. MR. JUSTICE DouGLAS is of the opinion that
certiorari should be granted. Reported below: 5 Cal.
3d 771, 489 P. 2d 537.
No. 71-5957. CARRASCO-FAVELA v. IMMIGRATION AND
NATURALIZATION SERVICE. C. A. 9th Cir. Certiorari
denied. MR. JUSTICE DOUGLAS is of the opinion that
certiorari should be granted. Reported below: 445 F.
2d 865.
No. 71-931. VoLPE, SECRETARY OF TRANSPORTATION,
ET AL. v. D. C. FEDERATION OF CrvIC AssNs. ET AL. C. A.
D. C. Cir. Certiorari denied. Reported below: 148
U. S. App. D. C. 207, 459 F. 2d 1231.
MR. CHIEF JUSTICE BURGER, concurring.
I concur in the denial of certiorari in this case, but
solely out of considerations of timing. Questions of
great importance to the Washington, D. C., area are presented
by the petition, not the least of which is whether
the Court of Appeals has, for a second time, unjustifiably
ORDERS 1031
1030 BURGER, C. J., concurring
frustrated the efforts of the Executive Branch to comply
with the will of Congress as rather clearly expressed
in § 23 of the Federal-Aid Highway Act of 1968,
82 Stat. 827.* If we were to grant the writ, however, it
would be almost a year before we could render a decision
in the case. It seems preferable, therefore, that we stay
our hand. In these circumstances Congress may, of
course, take any further legislative action it deems necessary
to make unmistakably clear its intentions with respect
to the project, even to the point of limiting or
prohibiting judicial review of its directives in this respect.
*Certain of the provisions of § 23 of the Federal-Aid Highway Act
of 1968 were apparently enacted in response to the decision in
D. C. Federation of Civic Assns., Inc. v. Airis, 129 U. S. App. D. C.
125, 391 F. 2d 478, in which it was held that the planning and construction
of 1his project had to be carried out in strict compliance
with the procedural requirements of Title 7 of the D. C. Code.
Section 23 (a) of the Act provides that "[n]otwithstanding any
other provision of law, or any court decision ... to the contrary,
the Secretary of Transportation and the government of the District
of Columbia shal,l ... construct" certain specified "routes on the
Interstate System within the District of Columbia." (Emphasis
added.) In § 23 (b), Congress singled out four particular projects,
including this one, for special treatment by providing that work
on those projects was to commence "[n]ot later than 30 days after
the date of enactment of this section." In an earlier phase of
the litigation involved in the instant petition, the Court of Appeals
rejected the petitioners' contention that § 23 rendered inapplicable
the pre-construction planning and public hearing requirements set
out in various sections of Title 23 of the United States Code. D. C.
Federation of Civic Assns., Inc. v. Volpe, 140 U. S. App. D. C.
162, 434 F. 2d 436. On remand following that decision, the District
Court found that the petitioners had complied with all applicable
provisions of Title 23 except those of § 128 relating to public
hearings and those of § 109 relating to safety standards and other
requirements. The Court of Appeals, in the decision that we are
now being asked to review, reversed in part, holding that the petitioners
had failed to comply with a number of additional preconstruction
provisions of Title 23.
1032 OCTOBER TERM, 1971
March 27, 1972 405 U.S.
No. 71 - 941. FERRARA ET AL. v. UNITED STATES. C. A.
2d Cir. Motion to defer consideration and certiorari
denied. Reported below: 451 F. 2d 91.
No. 71-956. FREEMAN, GUARDIAN, ET AL. v. FLAKE
ET AL. C. A. 10th Cir. Certiorari denied. Reported
below: 448 F. 2d 258.
MR. JUSTICE DouGLAS, dissenting.
Today the Court declines to decide whether a public
school may constitutionally refuse to permit a student
to attend solely because his hair style meets with the disapproval
of the school authorities. The Court also denied
certiorari in Olff v. East Side Union High School
Di.strict, 404 U. S. 1042, which presented the same issue.
I dissented in Olff, and filed an opinion. For the same
reasons expressed therein, I dissent today. I add only
that now eight circuits have passed on the question. On
widely disparate rationales, four have upheld school hair
regulations (see Freeman v. Flake, 448 F. 2d 258 (CAlO
1971); King v. Saddleback Junior College District, 445
F. 2d 932 (CA9 1971); Jackson v. Dorrier, 424 F. 2d
213 (CA6 1970); and Ferrell v. Dallas Independent
School District, 392 F. 2d 697 (CA5 1968)), and four
have struck them down ( see Massie v. Henry, 455 F. 2d
779 (CA4 1972); Bishop v. Colaw, 450 F. 2d 1069 ( CA8
1971); Richards v. Thurston, 424 F. 2d 1281 (CA11U70);
and Breen v. Kahl, 419 F. 2d 1034 (CA7 1969) ).
I can conceive of no more compelling reason to exercise
our discretionary jurisdiction than a conflict of such
magnitude, on an issue of importance bearing on First
Amendment and Ninth Amf'ndrnent rights.
No. 71- 5923. FAIRMAN ET AL. v. UNITED STATES.
C. A. 5th Cir. Motion for testing physical evidence and
certiorari denied. Reported below: 451 F. 2d 209.
ORDERS 1033
405U.S. March 27, 1972
No. 71-999. DIXON, TREASURER OF lLLINors, ET AL.
V. CASTLE, SENIOR JUDGE, U. S. COURT OF APPEALS, ET
AL. C. A. 7th Cir. Certiorari denied. MR. JUSTICE
MARSHALL took no part in the consideration or decision
of this petition.
No. 71-5567. MILLER v. SALISBURY, CoRRECTIONAL
SUPERINTENDENT. C. A. 6th Cir. Motion to amend
petition granted. Certiorari denied. Reported below:
448 F. 2d 186.
No. 71-5577. McGREGOR v. SCHMIDT, SECRETARY,
DEPARTMENT OF HEALTH AND SocIAL SERVICES OF WISCONSIN,
ET AL. Sup. Ct. Wis. Certiorari and other
relief denied.
Rehearing Denied
No. 70--161. RrcHARDSON, SECRETARY OF HEALTH,
EDUCATION, AND WELFARE v. WRIGHT ET AL., ante, p. 208;
No. 70--5211. WRIGHT ET AL. v. RICHARDSON, SECRETARY
OF HEALTH, EDUCATION, AND WELFARE, ante, p. 208;
No. 71-183. AGUA CALIENTE BAND OF MISSION INDIANS
ET AL. v. COUNTY OF RIVERSIDE, CALIFORNIA, ante,
p. 933; and
No. 71-659. DEVILLIERS v. ATLAS CORP., ante, p. 933.
Petitions for rehearing denied.
No. 70--28. UNITED STATES v. GENERES ET vrn, ante,
p. 93. Petition for rehearing denied. MR. JusTICE
PowELL AND MR. JUSTICE REHNQUIST took no part in
the consideration or decision of this petition.
No. 70--267. NATIONAL LABOR RELATIONS BOARD V.
SCRIVENER, DBA AA ELECTRIC Co., ante, p. 117. Motions
to dispense with printing and to dispense with taxation
of costs granted. Petition for rehearing denied.
1034 OCTOBER TERM, 1971
March 27, April 3, 1972 405U.S.
Assignment Order
An order of THE CHIEF JusTICE designating and assigning
Mr. Justice Clark (retired) to perform judicial
duties in the United States District Court for the Southern
District of Texas during the period beginning November
1, 1972, and ending December 31, 1972, and for
such additional time in advance thereof to prepare for
the trial of cases, and for such further time as may be
required to complete unfinished business, pursuant to 28
U. S. C. § 294 (a), is ordered entered on the minutes of
this Court, pursuant to 28 U. S. C. § 295.
APRIL 3, 1972
Affirmed on Appeal
No. 70-20. CANNIFFE ET AL. v. BuRG. Affirmed on
appeal from D. C. Mass. Reported below: 315 F. Supp.
380.
No. 70-80. DAVIS, GovERNOR OF VERMONT, ET AL. v.
KOHN ET ux. Affirmed on appeal from D. C. Vt. Reported
below: 320 F. Supp. 246.
No. 71-628. CoDY, ELECTIONS COMMISSIONER, ET AL.
v. ANDREWS ET ux. Affirmed on appeal from D. C.
M. D. N. C. Reported below: 327 F. Supp. 793.
No. 70-76. DONOVAN, SECRETARY OF STA'l'E OF MINNESOTA,
ET AL. v. KEPPEL ET AL. Affirmed on appeal from
D. C. Minn. MR. JUSTICE BLACKMUN took no part in
the consideration or decision of this appeal. Reported
below: 326 F. Supp. 15.
No. 70-51. "\VHITCOMB, GovERNOR OF INDIANA, ET AL.
v. AFFELDT ET ux. Appeal from D. C. N. D. Ind. Motion
of appellees for leave to dispense with printing
motion to affirm granted. Judgment affirmed. Reported
below: 319 F. Supp. 69.
ORDERS 1035
405 U.S. April 3, 1972
No. 70-59. AMos, SECRETARY OF STATE OF ALABAMA,
ET AL. v. HADNOTT ET AL. Appeal from D. C. M. D. Ala.
Motion of appellees for leave to dispense with printing
motion to affirm granted. Motion of appellants to dispense
with printing jurisdictional statement granted.
Judgment affirmed. Reported below: 320 F. Supp. 107.
No. 70-68. VIRGINIA S·rATE BOARD OF ELECTIONS v.
BUFFORD ET AL. Appeal from D. C. E. D. Va. Motion
of appellees for leave to dispense with printing motion
to affirm granted. Judgment affirmed. Reported below:
319 F. Supp. 843.
No. 71-650. MINNESOTA v. NORTHERN STATES PowER
Co. Affirmed on appeal from C. A. 8th Cir. MR. Jus-
TICE DouGLAS and MR. JUSTICE STEWART dissent from
affirmance. Reported below: 447 F. 2d 1143.
Appeals Dismissed
No. 71-674. LAKE SHORE AuTo PARTS Co. v. KoRZEN
ET AL. Appeal from Sup. Ct. Ill. dismissed for want of
jurisdiction. Treating the papers whereon the appeal
was taken as a petition for writ of certiorari, certiorari
denied. Reported below: 49 Ill. 2d 137,273 N. E. 2d 592.
No. 71-950. GARRET·r FREIGHTLINES, INC. v. UNITED
STATES ET AL. Appeal from D. C. Colo. dismissed.
Shenandoah Valley Broadcasting, Inc. v. ASCAP, 375
u. s. 39 (1963). MR. JUSTICE DOUGLAS dissents from
the dismissal of the case and would affirm, believing that
the appeal is properly taken. Reported below: 339 F.
Supp. 554.
No. 71-1039. ANDERSON ET AL. v. CALVERT, COMPTROLLER
OF PUBLIC AccouNTS OF TEXAS, ET AL. Appeal
from Ct. Civ. App. Tex., 3d Sup. Jud. Dist. Motion of
appellants for leave to dispense with printing reply brief
granted. Appeal dismissed for want of substantial federal
question. Reported below: 467 S. W. 2d 205.
1036 OCTOBER TERM, 1971
April 3, 1972 405 u. s.
No. 71-1001. BERBERIAN v. RHODE IsLAND. Appeal
from Sup. Ct. R. I. dismissed for want of jurisdiction.
Treating the papers whereon the appeal was taken as a
petition for writ of certiorari, certiorari denied. Reported
below: - R. I. -, 284 A. 2d 590.
Vacated and Remanded on Appeal
No. 70--16. CocANOWER v. MARSTON, RECORDER FOR
MARICOPA COUNTY, ET AL. Appeal from D. C. Ariz.
Judgment vacated and case remanded for further consideration
in light of Dunn v. Blumstein, ante, p. 330.
Reported below: 318 F. Supp. 402.
No. 70--81. FITZPATRICK ET AL. v. BoARD OF ELECTION
COMMISSIONERS m' THE CITY OF CHICAGO ET AL. Appeal
from D. C. N. D. Ill. Judgment vacated and case remanded
for further consideration in light of Dunn v.
Blumstein, ante, p. 330.
No. 70-5076. LESTER ET AL. v. BOARD OF ELECTIONS FOR
THE DISTRICT OF COLUMBIA ET AL. Appeal from D. C.
D. C. Judgment vacated and case remanded for further
consideration in light of Dunn v. Blumstein, ante, p. 330.
Reported below: 319 F. Supp. 505.
No. 71-5690. FERGUSON ET AL. v. WILLIAMS, Gov-
ERNOR OF MISSISSIPPI, ET AL. Appeal from D. C. N. D.
Miss. Judgment vacated and case remanded for further
consideration in light of Dunn v. Blumstein, ante,
p. 330. Reported below: 330 F. Supp. 1012.
Certiorari Granted--Vacated and Remanded
No. 70--5080. WEDDLE v. DIRECTOR, PATUXENT INSTITUTION,
ET AL. C. A. 4th Cir. Motion of petitioner
for leave to proceed in forma pauperis and certiorari
granted. Judgment vacated and case remanded for further
consideration in light of Lynch v. Household Finance
Corp., ante, p. 538. Reported below: 436 F. 2d 342.
ORDERS 1037
405 U.S. April 3, 1972
No. 70-5395. ROBERTS ET AL. v. HARDER, COMMISSIONER
OF WELFARE OF CoNNECTICGT. C. A. 2d Cir.
Motion of petitioners for leave to proceed in forma
pauperis and certiorari granted. Judgment vacated and
case remanded for further consideration in light of Lynch
v. Household Finance Corp., ante, p. 538. Reported below:
440 F. 2d 1229.
Miscellaneous Orders
No. A-974. IN RE RESIGNATION OF GERBER. Albert
B. Gerber, of Philadelphia, Pennsylvania, having resigned
as a member of the Bar of this Court, it is ordered that
his name be stricken from the roll of attorneys admitted
to practice in this Court.
No. 70-223. CENTRAL HARDWARE Co. v. NATIONAL
LABOR RELATIONS BOARD Er AL. C. A. 8th Cir. [Certiorari
granted, 404 U. S. 1014.] Motion of respondent
Retail Clerks Union for additional time for oral argument
granted and 10 minutes allotted for that purpose.
Petitioner also allotted 10 additional minutes for oral
argument.
No. 70-283. ADAMS, WARDEN v. WILLIAMS. C. A.
2d Cir. [Certiorari granted, 404 U. S. 1014.] Motion
of American Civil Liberties Union for leave to file a
brief as amicus curiae granted.
No. 71-452. HEALY ET AL. v. JAMES ET AL. C. A.
2d Cir. [Certiorari granted, 404 U. S. 983.] Motion
of Associated Students of San Francisco State College
et al. for leave to file a brief as amici curiae denied.
No. 71-857. Evco, DBA Evco INSTRUCTIONAL DESIGNS
V. JONES, COMMISSIONER OF BUREAU OF REVENUE,
ET AL. Ct. App. N. M. [Certiorari granted, ante,
p. 953.] Motion of petitioner to dispense with printing
appendix and to proceed on original record granted.
1038 OCTOBER TERM, 1971
April 3, 1972 405 U.S.
No. 71---492. LLOYD CoRP., LTD. v. TANNER ET AL.
C. A. 9th Cir. [Certiorari granted, 404 U. S. 1037.]
Motion of American Retail Federation for leave to participate
in oral argument as amicus curiae denied.
No. 71-1016. FEDERAL POWER COMMISSION v. Lour-
SIAN A PowER & LIGHT Co. ET AL.; and
No. 71-1040. UNITED GAS PIPE LINE Co. ET AL. v.
LOUISIANA PowER & LIGHT Co. ET AL. C. A. 5th Cir.
[Certiorari granted, ante, p. 973.] Motion of Mobile
Gas Service Corp. et al. for leave to file a brief as
amici curiae granted. MR. JUSTICE POWELL took no
part in the consideration or decision of this motion.
No. 71-1017. GRAVEL v. UNITED STATES; and
No. 71-1026. UNITED STATES v. GRAVEL. C. A. 1st
Cir. [Certiorari granted, ante, p. 916.] Motion of
counsel for Gravel for additional time for oral argument
denied. Motion of the United States Senate for leave
to permit Sam J. Ervin, Jr., to participate in oral argument
as amicus curiae granted and a total of 30 minutes
allotted for that purpose. The Solicitor General is allotted
30 additional minutes for oral argument.
No. 71-1031. TONASKET v. WASHINGTON ET AL. Appeal
from Sup. Ct. Wash. The Solicitor General is invited
to file a brief in this case expressing the views of
the United States. Reported below: 79 Wash. 2d 607,
488 P. 2d 281.
No. 71-5564. STEWART ET AL. v. WHITE ET AL.,
JUDGES. Motion for leave to file petition for writ of
mandamus and/or prohibition and other relief denied.
Certiorari Granted
No. 71-889. CoucH v. UNITED STATES ET AL. C. A.
4th Cir. Certiorari granted. Reported below: 449 F.
2d 141.
ORDERS 1039
405 U.S. April 3, 1972
No. 71-1022. UNITED STATES v. BASYE ET AL. C. A.
9th Cir. Certiorari granted. Reported below: 450 F.
2d 109.
No. 71-685. LEHNHAUSEN, DIRECTOR, DEPARTMENT
OF LOCAL GOVERNMENT AFFAIRS OF ILLINOIS V. LAKE
SHORE A uTo PARTS Co. ET AL.; and
No. 71-691. BARRETT, COUNTY CLERK OF CooK
CouNTY, ILLINOIS, ET AL. v. SHAPIRO ET AL. Sup. Ct.
Ill. Certiorari granted. Cases consolidated and a total
of one hour allotted for oral argument. Reported below:
49 Ill. 2d 137, 273 N. E. 2d 592.
No. 71-651. CALIFORNIA v. KRrVDA ET AL. Sup. Ct.
Cal. Motion of respondents for leave to proceed in
forma pauper-is and certiorari granted. Reported below:
5 Cal. 3d 357,486 P. 2d 1262.
No. 71-951. ALMOTA FARMERS ELEVATOR & WAREHOUSE
Co. v. UNITED STATES. C. A. 9th Cir. Certiorari
granted and case set for oral argument with No.
71-559 [ United States v. Fuller, certiorari granted, 404
U. S. 1037]. Reported below: 450 F. 2d 125.
Certiorari Denied.* (See also Nos. 71-674 and 71-1001,
supra.)
No. 68-5028. TYLER v. MARYLAND. Ct. Sp. App. Md.
Certiorari denied. Reported below: 5 Md. App. 265,
246 A. 2d 634.
No. 70-5028. SCAIFE v. MARYLAND. Ct. Sp. App.
Md. Certiorari denied.
No. 70-5036. PRO\VSE v. ILLINOIS. C. A. 7th Cir.
Certiorari denied.
No. 70-5068. LucAs v. MARYLAND. Ct. Sp. App.
Md. Certiorari denied.
*[Reporter's Note: For statement of MR. J usTICE BRENNAN and
dissenting opinion of MR. J u sTICE DouGLAS in No. 71-5912, Williamson
v. United States, see ante, p. 1026.]
1040 OCTOBER TERM, 1971
April 3, 1972 405 U.S.
No. 70----5057. BILLINGS v. MARYLAND. Ct. Sp. App.
Md. Certiorari denied. Reported below: 10 Md. App.
31, 267 A. 2d 808.
No. 70----5059. BARNER v. NoRTH CAROLINA. Ct.
App. N. C. Certiorari denied. Reported below: 8
N. C. App. 1, 173 S. E. 2d 605.
No. 70----5148. OLSEN v. ELLSWORTH ET AL. C. A. 9th
Cir. Certiorari denied. Reported below: 438 F. 2d 630.
No. 71-642. PARROTT v. OHIO. Sup. Ct. Ohio. Certiorari
denied. Reported below: 27 Ohio St. 2d 205,
272 N. E. 2d 112.
No. 71- 813. FAVRO v. WASHINGTON. Ct. App. Wash.
Certiorari denied. Reported below: 5 Wash. App. 311,
487 P. 2d 261.
No. 71-817. CARDENAS v. CALIFORNIA. Ct. App. Cal.,
2d App. Dist. Certiorari denied.
No. 71-836. WooD ET AL. v. IDAHO. Sup. Ct. Idaho.
Certiorari denied. Reported below: 94 Idaho 612, 495
P. 2d 18.
No. 71-840. BORING v. MISSISSIPPI. Sup. Ct. Miss.
Certiorari denied. Reported below: 253 So. 2d 251.
No. 71-923. CECIRE ET AL., TRUSTEES v. STEWART,
SUPERINTENDENT OF INSURANCE. Ct. App. N. Y. Certiorari
denied. Reported below: 29 N. Y. 2d 563, 272
N. E. 2d 887.
No. 71-944. SALETKO v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 452 F. 2d 193.
No. 71-957. SHALLA v. UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF MICHIGAN ET AL.
C. A. 6th Cir. Certiorari denied.
405 U.S.
ORDERS
April 3, 1972
1041
No. 71-959. THOMAS v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Reported below: 453 F. 2d 334.
No. 71-971. FisoNs LTD. ET AL. v. UNITED STATES.
C. A. 7th Cir. Certiorari denied. Reported below: 458
F. 2d 1241.
No. 71-974. CONRAD, EXECUTRIX v. JuDsoN ET AL.
Ct. Civ. App. Tex., 5th Sup. Jud. Dist. Certiorari denied.
Reported below: 465 S. W. 2d 819.
No. 71-988. VAUGHN v. HUFNAGEL, ExECUTOR, ET AL.
Ct. App. Ky. Certiorari denied. Reported below: 473
S. W. 2d 124.
No. 71-996. SNOOK v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. Reported below: 451 F. 2d 329.
No. 71-1004. GENERAL TEAMSTERS LocAL UNION No.
528 ET AL. v. ALLIED FooDs, INc. Sup. Ct. Ga. Certiorari
denied. Reported below: 228 Ga. 479, 186 S. E.
2d 527.
No. 71-1018. MALONEY v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 452 F. 2d
1186.
No. 71-1029. REISMAN v. NEW YORK. Ct. App.
N. Y. Certiorari denied. Reported below: 29 N. Y. 2d
278, 277 N. E. 2d ·395_ .
No. 71-1033. GREAT DANE TRAILERS, INC. v. NATIONAL
LABOR RELATIONS BoARD. C. A. 4th Cir. Certiorari
denied.
No. 71-1034. EMBRY v. EQUITABLE LrFE AssuRANCE
SOCIETY OF THE UNITED STATES. C. A. 10th Cir. Certiorari
denied. Reported below: 451 F. 2d 472.
No. 71-1037. SrLVERTRUST, EXECUTOR, ET AL. v.
REDKE. Sup. Ct. Cal. Certiorari denied. Reported
below: 6 Cal. 3d 94, 490 P. 2d 805.
1042 OCTOBER TERM, 1971
April 3, 1972 405 U.S.
No. 71-1038. CITY OF THOUSAND OAKS V. VAN NuYS
PUBLISHING Co., INC. Sup. Ct. Cal. Certiorari denied.
Reported below: 5 Cal. 3d 817, 489 P. 2d 809.
No. 71-1046. GRIFFITH v. ALABAMA. Ct. Crim. App.
Ala. Certiorari denied. Reported below: 47 Ala. App.
378, 255 So. 2d 48.
No. 71-1055. ANDERSON v. COLORADO. Sup. Ct. Colo.
Certiorari denied. Reported below: - Colo. - , 4~0
P. 2d 47.
No. 71-1079. HAY v. TnuscoTT ET AL. Sup. Ct. Pa.
Certiorari denied.
No. 71-5035. SAMPERI v. NEw YORK. Ct. App. N. Y.
Certiorari denied.
No. 71-5309. JORDAN v. PRocuNIER, CORRECTIONS
DIRECTOR. Sup. Ct. Cal. Certiorari denied.
No. 71-5355. MosES v. EYMAN, WARDEN. C. A. 9th
Cir. Certiorari denied. Reported below: 445 F. 2d 306.
No. 71-5465. CROSSWHITE v. SWENSON, WARDEN.
C. A. 8th Cir. Certiorari denied. Reported below: 444
F. 2d 648.
No. 71-5585. MARTIN v. PATE, WARDEN. C. A. 7th
Cir. Certiorari denied.
No. 71-5587. PLAIR v. OHIO. Sup. Ct. Ohio. Certiorari
denied.
No. 71-5755. MoNsouR v. CADY, WARDEN, ET AL.
Sup. Ct. Wis. Certiorari denied.
No. 71-5964. LAUCHLI v. HARRIS, WARDEN, ET AL.
C. A. 7th Cir. Certiorari denied.
No. 71-5965. BETHEA v. CALIFORNIA. Ct. App. Cal.,
2d App. Dist. Certiorari denied. Reported below: 18
Cal. App. 3d 930, 96 Cal. Rptr. 229.
ORDERS 1043
405 U.S. April 3, 1972
No. 71-5967. JENSON v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 450 F. 2d
1258.
No. 71-5968. HUGGINS v. UNITED STATES. Ct. Cl.
Certiorari denied.
No. 71-5969. BAMBERGER v. UNITED STATES. C. ·A.
2d Cir. Certiorari denied. Reported below: 452 F. 2d
696.
No. 71-5971. KIMMONS v. WAINWRIGHT, CORRECTIONS
DIRECTOR. C. A. 5th Cir. Certiorari denied.
Reported below: 450 F. 2d 335.
No. 71-5973. SMITH v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 451 F. 2d 169.
No. 71-5975. SAVAGE v. UNITED STATES ET AL. C. A.
8th Cir. Certiorari denied. Reported below: 450 F.
2d 449.
No. 71-5976. NICHOLSON v. WOLFF, WARDEN. C. A.
8th Cir. Certiorari denied. Reported below: 448 F.
2d 777.
No. 71- 5977. ZovLUCK v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 448 F. 2d 339.
No. 71-5978. TINER v. MICHIGAN. Sup. Ct. Mich.
Certiorari denied.
No. 71-5979. PACHECO v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. Reported below: 448 F. 2d
1398.
No. 71- 5980. WATTS v. TENNESSEE. Ct. Crim. App.
Tenn. Certiorari denied.
No. 71-5981. PELOW v. MANCUSI, CoRRECTIONAL Su-
PERINTENDENT. C. A. 2d Cir. Certiorari denied.
1044 OCTOBER TERM, 1971
April 3, 1972 405 u. s.
No. 71- 5982. MARCELIN v. NEw YORK. Ct. App.
N. Y. Certiorari denied.
No. 71-5984. WALKER v. TWOMEY, WARDEN. C. A.
7th Cir. Certiorari denied.
No. 71 5986. CARLSON V. rNITED STATES. C. A. 9th
Cir. Certiorari denied.
No. 71-5987. JONES v. UNITED STATES. C. A. 6th Cir.
Certiorari denied.
No. 71-5993. DADURIAN v. UNITED STATES. C. A. 1st
Cir. Certiorari denied. Reported below: 450 F. 2d 22.
No. 71-5994. FENTRESS v. ILLINOIS. App. Ct. Ill.,
1st Dist. Certiorari denied. Reported below: 133 Ill.
App. 2d 38. 272 N. E. 2d 801.
No. 71-5995. BREWER v. NEw JERSEY. Sup. Ct. N. J.
Certiorari denied.
No. 71- 5997. ARCHER v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 450 F. 2d 1106.
No. 71-5999. MASTERS ET AL. V. UNITED STATES.
C. A. 9th Cir. C-ertiorari denied. Reported below: 450
F. 2d 866.
No. 71 6000. D u NLEAVAY v. ROCKEFELLER CENTER,
INC., ET AL. C. A. 2d Cir. Certiorari denied. Reported
below: 447 F. 2d 1402.
No. 71- 6002. Woon v. CIRCUIT CouRT OF WARREN
CouNTY, TENNESSEE, El' AL. C. A. 6th Cir. Certiorari
denied.
No. 71-6003. STRICKLAND v. UNITED STATES. C. A.
6th Cir. Certiorari denied.
No. 71-6004. HooKs v. FLORIDA. Sup. Ct. Fla. Certiorari
denied. Reported below: 253 So. 2d 424.
ORDERS 1045
405U.S. April 3, 1972
No. 71-6005. EvANS v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
No. 71-6006. MAGGARD v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 451 F. 2d 502.
No. 71-6007. FENTRESS v. UNITED STATES. C. A.
9th Cir. Certiorari denied. Reported below: 452 F.
2d 609.
No. 71-6008. LAUCHLI v. Poos, U. S. DISTRICT JuDGE,
ET AL. C. A. 7th Cir. Certiorari denied.
No. 71-6009. JOHNSON v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 451 F. 2d
344.
No. 70--22. M. F. A. CENTRAL CooPERATIVE ET AL.
V. BOOKWALTER, DISTRICT DIRECTOR OF INTERNAL REVENUE,
ET AL. C. A. 8th Cir. Certiorari denied. MR.
JUSTICE BLACKMON took no part in the consideration
or decision of this petition. Reported below: 427 F. 2d
1341.
No. 71- 525. LUSBY v. VIRGINIA. Sup. Ct. Va. Certiorari
denied. MR. JusTICE DouGLAS and MR. JUSTICE
STEW ART are of the opinion that certiorari should be
granted.
No. 71-716. SMITHERMAN v. VIRGINIA. Sup. Ct.
Va. Motion to dispense with printing petition and motion
of respondent for leave to dispense with printing
brief granted. Certiorari denied. MR. JUSTICE DouGLAS
is of the opinion that certiorari should be granted.
No. 71-766. CARTER, DIRECTOR, MISSOURI DrvISION
OF WELFARE, ET AL. v. LIKE ET AL. C. A. 8th Cir. Motion
of respondents for leave to proceed in forma pauperis
granted. Certiorari denied. Reported below: 448
F. 2d 798.
1046 OCTOBER TERM, 1971
April 3, 1972 405 U.S.
No. 71-978. McCONNELL v. ANDERBON ET AL. C. A.
8th Cir. Certiorari denied. MR. JUSTICE Dou GLAS is
of the opinion that certiorari should be granted. Reported
below: 451 F. 2d 193.
No. 71-994. EPSTEIN v. AssocIATION OF THE BAR
OF THE CITY OF NEW YORK. App. Div., Sup. Ct. N. Y.,
1st Jud. Dept. Certiorari denied. MR. JusTICE DouGLAS
is of the opinion that certiorari should be granted.
Reported below: 37 App. Div. 2d 333, 325 N. Y. S. 2d
657.
No. 71- 995. DAVIS v. UNITED STATES. Ct. Cl. Certiorari
denied. MR. JUSTICE DouGLAS is of the opinion
that certiorari should be granted. Reported below: 196
Ct. Cl. 517.
No. 71-1054. SMITH, ADMINISTRATRIX v. SouTHERN
PACIFIC Co. Ct. App. Cal., 1st App. Dist. Certiorari
denied. MR. JUSTICE DouGLAS is of the opinion that
certiorari should be granted.
No. 71-5449. QurcK v. VIRGINIA. Sup. Ct. Va. Certiorari
denied. MR. JUSTICE DouGLAS is of the opinion
that certiorari should be granted.
No. 71- 5450. CAMM v. PENNSYLVANIA. Sup. Ct. Pa.
Certiorari denied. MR. JUSTICE DOUGLAS is of the opinion
that certiorari should be granted. Reported below:
443 Pa. 253, 277 A. 2d 325.
No. 71-5550. MANUEL v. SALISBURY, CORRECTIONAL
SUPERINTENDENT. C. A. 6th Cir. Certiorari denied.
MR. JUSTICE DOUGLAS is of the opinion that certiorari
should be granted. Reported below: 446 F. 2d 453.
No. 71-5970. NIELSEN v. MICHIGAN. Ct. App.
Mich. Certiorari denied. MR. JUSTICE DOUGLAS is of
the opinion that certiorari should be granted. Reported
below: 34 Mich. App. 261, 191 N. W. 2d 121.
ORDERS 1047
405 U.S. April 3, 1972
No. 71-5560. MILLER v. OREGON. Sup. Ct. Ore. Certiorari
denied. Reported below: See 5 Ore. App. 501,
484 P. 2d 1132.
MR. JUSTICE BRENNAN, joined by MR. JUSTICE DouGLAS
and MR. JusrrCE MARSHALL, dissenting.
Petitioner had a pistol on his person when he was arrested
in Portland, Oregon, on January 28, 1970. Two
prosecutions were brought against him based on this
single act of possession. The first was a complaint filed
January 29, 1970, for violation of § 14.32.040 of the Code
of the City of Portland, which makes it a crime to carry
a concealed weapon. The second was an indictment
handed down April 20, 1970, for violation of Oregon Revised
Statutes § 166.270, whch makes it a felony for "any
person who has been convicted of a felony against the
person or property of another" to carry a concealed
weapon.
On April 29, 1970, the petitioner was convicted of the
ordinance violation. He thereupon entered a plea of
double jeopardy to the felony indictment. The plea was
sustained in the trial court and the indictment dismissed.
The Court of Appeals of Oregon reversed, 5 Ore. App.
501, 484 P. 2d 1132. The Oregon Supreme Court denied
rev1ew.
I would grant the petition for certiorari and reverse.
In my view the Double Jeopardy Clause applicable to the
States through the Fourteenth Amendment, Benton v.
Maryland, 395 U.S. 784 (1969), requires the prosecution,
except in most limited circumstances not present here,
"to join at one trial all the charges against a defendant
that grow out of a single criminal act, occurrence, episode,
or transaction." Ashe v. Swenson, 397 U. S. 436,
453-454 ( 1970) ( concurring opinion). Under this "same
transaction" test of "same offense" the trial court properly
sustained petitioner's double jeopardy plea.
1048 OCTOBER TERM, 1971
April 3, 1972 405 U.S.
No. 71-993. LovISI v. VIRGINIA. Sup. Ct. Va. Motion
of respondent to dispense with printing brief
granted. Certiorari denied. MR. JUSTICE DouGLAS 1s
of the opinion that certiorari should be granted.
No. 71-5726. HUNT, AKA ADAMS v. GEORGIA ET AL.
C. A. 5th Cir. Certiorari denied. MR. JUSTICE DOUGLAS
and MR. JusTICE MARSHALL are of the opinion that certiorari
should be granted. Reported below: 445 F. 2d
1228.
No. 71-5989. THERIAULT ET AL. V. SILBER ET AL.
C. A. D. C. Cir. Certiorari denied. MR. JUSTICE BLACKMUN
took no part in the consideration or decision of this
petition.
No. 71-5990. SINCLAIR v. TURNER, WARDEN. C. A.
10th Cir. Certiorari denied. MR. JUSTICE WHITE took
no part in the consideration or decision of this petition.
Reported below: 447 F. 2d 1158.
Rehearing Denied
No. 71- 554. LIEPMAN V. CALIFORNIA, ante, p. 963;
No. 71-657. HAWAIIAN LAND Co., LTD. v. DIRECTOR
OF TAXATION OF HA w AII, ante, p. 907;
No. 71-694. Lou1s1ANA STATE DEPARTMENT OF HIGHWAYS
v. DARDAR ET AL., ante, p. 918;
No. 71-709. SUMIDA ET AL. v. YuMEN ET AL., ante,
p.964;
No. 71-730. WILLIAMS v. UNITED STATES, ante, p.
954;
No. 71- 742. GouLD ET ux. v. AMERICAN WATER
WoRKS SERVICE Co., INC., ET AL., ante, p. 920;
No. 71- 744. ADDONIZIO v. UNITED STATES, ante, p.
936; and
No. 71-765. NORTHERN NATURAL GAs Co. v. WILSON
ET AL., ante, p. 949. Petitions for rehearing denied.
ORDERS 1049
405 U.S. April 3, 1972
No. 71-789. JACOBS v. UNITED STATES, ante, p. 955;
No. 71-796. KASTENBAUM v. UNITED STATES, ante,
p. 955;
No. 71-904. GREAT FrnELITY INVESTMENT Co. ET AL.
V. MARTIN ET AL., ante, p. 955;
No. 71-5470. BEASLEY v. UNITED STATES, ante, p.
952;
No. 71-5547. McCRAY v. UNITED STATES, ante, p.
944;
No. 71-5582. GERARDI v. SUPERIOR COURT OF CALIFORNIA,
COUNTY OF Los ANGELES, ET AL., ante, p. 914;
No. 71-5588. TARLTON v. UNITED STATES, ante, p.
926;
No. 71-5718. BECKER v. UNITED STATES, ante, p. 932;
and
No. 71-5738. AcARINO v. MrsHLER, CHIEF JuDGE,
U. S. DISTRICT CouRT, ante, p. 956. Petitions for rehearing
denied.
No. 70-6. SwARB ET AL. v. LENNOX ET AL., ante, p. 191.
Petition for rehearing denied. MR. JusTICE POWELL and
MR. JUSTICE REHNQUIST took no part in the consideration
or decision of this petition.
No. 71- 884. CHANDLER, U. S. DISTRICT JUDGE V.
O'BRYAN, ante, p. 964. Petition for rehearing denied.
Ma. JUSTICE MARSHALL took no part in the consideration
or decision of this petition.
Assignment Order
An order of THE CHIEF JuSTICE designating and assigning
Mr. Justice Clark (retired) to perform judicial
duties in the United States Court of Appeals for the
Seventh Circuit during the week of May 22, 1972, and
for such additional time in advance thereof to prepare
for the hearing of cases, and for such further time as may
be required to complete unfinished business, pursuant to
28 U. S. C. § 294 (a), is ordered entered on the minutes
of this Court, pursuant to 28 U. S. C. § 295.
1050 OCTOBER TERM, 1971
April 7, 11, 17, 1972
APRIL 7, 1972
Dismissal Under Rule 60
405 U.S.
No. 71-1050. ROBERTS, AKA MATTHEWS v. UNITED
STATES. C. A. 5th Cir. Petition for writ of certiorari
dismissed pursuant to Rule 60 of the Rules of this Court.
Reported below: 455 F. 2d 930.
APRIL 11, 1972
Miscellaneous Order
No. A-972 (71-982). HALL, SECRETARY OF HuMAN
RELATIONS AGENCY, ET AL. v. VILLA ET AL. Sup. Ct. Cal.
Application for stay of judgment pending action on petition
for writ of certiorari presented to MR. JUSTICE
BLACKMUN, and by him referred to the Court, granted.
MR. JusncE MARSHALL took no part in the consideration
or decision of this application.
APRIL 17, 1972
Affirmed on Appeal
No. 71- 940. BRuscA ET AI,. v. STATE BoARD OF EDUCATION
ET AL. Affirmed on appeal from D. C. E. D. Mo.
Reported below: 332 F. Supp. 275.
Appeals Dismissed
No. 71-793. ANDERSON ET AL. V. MARYLAND. Appeal
from Ct. Sp. App. Md. dismissed for want of substantial
federal question. MR. JusTICE DouGLAS is of the
opinion that probable jurisdiction should be noted. Reported
below: 12 Md. App. 186, 278 A. 2d 439 .
.N o. 71-5974. MORRIS v. GEORGIA. Appeal from Sup.
Ct. Ga. dismissed for want of jurisdiction. Treating the
papers whereon the appeal was taken as a petition for
writ of certiorari, certiorari denied. Reported below: 228
Ga. 39, 184 S. E. 2d 82.
ORDERS 1051
405 U.S. April 17, 1972
No. 71-6067. DIGGS v. BENJAMIN FRANKLIN UNIVERSITY.
Appeal from Ct. App. D. C. dismissed for want
of jurisdiction. Treating the papers whereon the appeal
was taken as a petition for writ of certiorari, certiorari
denied.
Ko. 71-6082. RENER v. BETO, CORRECTIONS DIRECTOR.
Appeal from C. A. 5th Cir. Motion of American Civil
Liberties Union for leave to file a brief as amicus curiae
granted. Appeal dismissed for want of jurisdiction.
Treating the papers whereon the appeal was taken as a
petition for writ of certiorari, certiorari denied. Reported
below: 447 F. 2d 20.
Vacated and Remanded on Appeal
No. 70-44. ROTHSTEIN v. LUTHERAN SocIAL SERVICES
OF WISCONSIN AND UPPER MICHIGAN. Appeal from Sup.
Ct. Wis. Motion to strike appellant's supplemental brief
denied. Judgment vacated and case remanded for further
consideration in light of Stanley v. Illinois, ante, p.
645, and with due consideration for the completion of
adoption proceedings and the fact that the child has
apparently lived with the adoptive family for the intervening
period of time. Reported below: 47 Wis. 2d 420,
178 N. W. 2d 56.
No. 71-9. LUNG ET AL. v. JONES ET AL. Appeal from
D. C. N. M. Judgment vacated and case remanded for
further consideration in light of Lynch v. Household Finance
Corp., ante, p. 538. Reported below: 322 F. Supp.
1067.
Certiorari Granted-Vacated or Reversed, and Remanded
No. 70-123. VANDERLAAN v. VANDERLAAN. App. Ct.
Ill., 1st Dist. Certiorari granted, judgment vacated, and
case remanded for further consideration in light of Stanley
v. lllinoi.s, ante, p. 645. Reported below: 126 Ill. App.
2d 410, 262 N. E. 2d 717.
1052 OCTOBER TERM, 1971
April 17, 1972 405 U.S.
No. 70--142. GARREN ET AL. v. CITY OF WrnsToNSALEM.
C. A. 4th Cir. Certiorari granted, judgment
vacated, and case remanded for further consideration in
light of Lynch v. Household Finance Corp., ante, p. 538.
Reported below: 430 F. 2d 140.
No. 70-249. TucKER v. MAHER ET AL. C. A. 2d Cir.
Certiorari granted, judgment vacated, and case remanded
for further consideration in light of Lynch v. Household
Finance Corp., ante, p. 538. Reported below: 441 F. 2d
740.
No. 71-5580. GONZALES v. BETO, CoRRECTIONS Dr-
RECTOR. C. A. 5th Cir. Motion for leave to proceed in
forma pauperis and certiorari granted. Judgment reversed
and case remanded. Turner v. Louisiana, 379
U.S. 466. Reported below: 445 F. 2d 1202.
MR. JUSTICE STEWART, with whom MR. JUSTICE
DOUGLAS and MR. JUSTICE MARSHALL join, concurring
in the judgment.
A gas station attendant was shot to death during the
course of a holdup in Dawson County, Texas, on a February
night in 1956. Five years later the petitioner was
arrested, tried, and convicted of the crime. The prosecution's
case against the petitioner rested almost totally
upon the testimony of the county sheriff. The sheriff
testified to the authenticity of a written confession that
he said had been dictated and signed with an "X" by
the petitioner. The witness insisted on cross-examination
that, although the petitioner could not read or write,
and had some difficulty speaking and understanding
English, he had indeed dictated the rather complex confession
and had understood what he was signing. Only
one other witness, who corroborated a part of the sheriff's
testimony, connected the petitioner with the crime.
The county sheriff, however, played a dual role at the
trial, for he was not only the key prosecution witness
ORDERS 1053
1052 STEWART, J., concurring in judgment
against the petitioner, but the bailiff of the jury as well.
In the latter capacity, he was responsible for the care
and protection of the jurors. He had, therefore, substantial
and continuing contact with and authority over
them during the entire course of the trial. On several
occasions, he conducted them in and out of the courtroom
on the instructions of the judge. Once, the judge even
asked him to step down from the witness stand, where
he was undergoing cross-examination, in order to retire
the jury.1 In his role as bailiff, the sheriff walked with
the jurors to a local restaurant for lunch, conversing with
them on the way. At the restaurant, he ate with them
in a private room, where the conversations continued.
Late in the afternoon, while the jurors were deliberating
in the case that turned so largely on their assessment of
the sheriff's credibility, they asked the sheriff, as bailiff,
to bring them soft drinks in the jury room, which he did.
The petitioner has now sought federal habeas corpus
relief, claiming that the sheriff's dual role as key prosecution
witness and jury bailiff and his substantial association
with the jurors during the trial infringed the petitioner's
right to due process of law under the doctrine
of Turner v. Louiswna, 379 U. S. 466. In Turner, two
deputy sheriffs served identical dual roles as prosecution
witnesses and jury custodians, testifying as to the circum-
1 This occurred immediately after defense counsel had emphasized
his challenge to the sheriff's credibility:
"MR. BASDEN [defense counsel]: I have no further questions to
ask this witness [ the sheriff], and I will pass him. If this statement
[the confession] is introduced in evidence, I would like to
put on testimony to impeach the testimony given by this witness
to assist the Court in understanding the defendant's ability to speak
the English language, in regard to giving a statement to these Peace
Officers, and I would like to make this request, to be allowed to
call these witnesses of mine at this time to testify.
"1'HE COURT: Mr. Sheriff, will you retire the jury for a few
minutes?"
1054 OCTOBER TERM, 1971
STEWART, J., concurring in judgment. 405 U.S.
stances of the defendant's confession while shepherding
the jurors through a three-day trial. During the trial,
the jury was sequestered and was in "close and continual
association" with the deputies. Id., at 468. "The deputies
ate with them, conversed with them, and did errands
for them." Ibid. This Court held that the prejudice
inherent in that situation violated the defendant's due
process right to a fair trial before an impartial jury.
After the evidentiary hearing in the present case, the
District Court denied the petitioner's habeas corpus
application. A divided Court of Appeals affirmed the
denial. 445 F. 2d 1202. Both courts held that the particular
facts of the petitioner's case distinguished it from
Turner, since the association of the key prosecution witness
with the jurors as their custodian during the petitioner's
one-day trial was somewhat less extensive and
somewhat less intense than the association of the deputy
sheriffs with the sequestered jury during the three-day
trial in Turner.2
Turner, of course, did not set down a rigid, per se rule
automatically requiring the reversal of any conviction
whenever any Government witness comes into any contact
with the jury. The Court's opinion specifically
indicated that association with the jury by a witness
whose testimony was "confined to some uncontroverted
or merely formal aspect of the case for the prosecution"
would hardly present a constitutional problem. Id., at
473. And it indicated that a mere "brief encounter," by
chance, with the jury would not generally contravene
2 Neither the District Court nor the Court of Appeals questioned
that the county sheriff whose credibility was at issue had been a
key witness for the prosecution. IndC'ed, the District Court's unreported
opinion specifically found, as summarized by the Court of
Appeals, that "[tjhe sheriff was an essential witness for the prosecution
in that his testimony, although disputed, established the
voluntary character of the confession upon which Gonzales was
convicted." 445 F. 2d, at 1205.
ORDERS 1055
1052 STEWART, J., concurring in judgment
due process principles. Ibid. For, as pointed out in
dissent today, certain chance contacts between witnesses
and jury members, while passing in the hall or crowded
together in an elevator, are often inevitable.
But the Court in Turner was not dealing with just any
prosecution witness coming into any contact with the
jury. Rather, it was dealing with crucial witnesses
against the defendant who associated with the jurors as
their official guardians throughout the trial. Turner established
the simple principle that association of that
particular sort cannot be permitted if criminal def endants
are to be afforded due process of law.
At the heart of our holding in Turner lay a recognition
of the great prejudice inherent in the dual role of jury
bailiff and key prosecution witness:
"It would have undermined the basic guarantees
of trial by jury to permit this kind of an association
between the jurors and two key prosecution witnesses
who were not deputy sheriffs. But the role that
Simmons and Rispone played as deputies made the
association even more prejudicial. For the relationship
was one which could not but foster the jurors'
confidence in those who were their official guardians
during the entire period of the trial." Id., at 474.3
Our adversary system of criminal justice demands that
the respective· roles of prosecution and defense and the
neutral role of the court be kept separate and distinct in
a criminal trial. When a key witness against a defendant
doubles as the officer of the court specifically charged
with the care and protection of the jurors, associating
with them on both a personal and an official basis while
a In a later case drawing upon the doctrine of Turner, the Court
emphasized that "the official character of the bailiff-as an officer
of the court as well as the State-beyond question carries great
weight with a jury .... " Parker v. Gladden, 385 U. S. 363, 365.
1056 OCTOBER TERM, 1971
REHNQUIST, J., dissenting 405 U.S.
simultaneously testifying for the prosecution, the adversary
system of justice is perverted.
Naturally, the extent and intensity of a bailiff's association
with a jury will vary from case to case. But,
in the petitioner's case, I cannot say that it was by any
means de minimis. Although the trial lasted only one
day and the jury was not sequestered with the county
sheriff, the association between the jurors and the witnessbailiff
was an extended one, and the duality of the witness-
bailiff's roles was inevitably driven home to the jury.
And, although the witness-bailiff may not have spoken to
the jurors about the case itself outside the courtroom,
Turner makes clear that even if he "never did discuss the
case directly with any members of the jury, it would be
blinking reality not to recognize the extreme prejudice inherent
in this association throughout the trial between
the jurors and [this] key witness for the prosecution."
379 U. S., at 473. It is enough to bring the petitioner's
case within the four corners of Turner that the key witness
for the prosecution also served as the guardian of
the jury, associating extensively with the jurors during
the trial!
MR. JusTICE REHNQUIST, whom MR. JUSTICE WHITE
joins, dissenting.
In order to reverse summarily the state court conviction
of a confessed murderer, the majority in this case
chooses to convert a salutary principle into a rigid rule
-< The petitioner's trial was held before our decision in Turner,
but Turner, of course, stated no new constitutional doctrine. Its
principle "went to the fairness of the trial-the very integrity of
the fact-finding process." Linkletter v. Walker, 381 U. S. 618,
639. It overruled no line of decisions on which the State might
have justifiably relied. To the contrary, it simply applied established
case law holding that due process of law requires an impartial
jury. Turner v. Louisiana, 379 U. S. 466, 471-472.
ORDERS 1057
1052 REHNQUIST, J ., dissenting
unjustified by considerations of constitutional policy or
fairness. I must respectfully dissent.
Petitioner Rudy Gonzales was convicted of murder
after a trial by jury in the District Court of Dawson
County, Texas. The case was not a complicated one.
The State's evidence consisted primarily of petitioner's
signed and witnessed confession, admitting his complicity
in an armed robbery and murder of the proprietor of a
looal service station. The evidence showed that the
police had warned petitioner of his rights before he made
this confession, and there is no suggestion that the statement
was in any way coerced.
In cross-examining the sheriff who obtained the confession,
petitioner's counsel questioned whether petitioner's
command of the English language had been
sufficient for him to understand what occurred at the
time of the confession. The sheriff responded that while
petitioner had not spoken perfect English, he had been
able to comprehend and answer sensibly a11 the sheriff's
questions. The defense presented no evidence to the
jury, which found petitioner guilty within 10 minutes
after the close of the case.
Petitioner's sole claim to habeas relief is that he was
deprived of due process of law because the sheriff of
Dawson County at that time also served as bailiff of
the jury. In order to sustain this claim, petitioner seeks
to have this Court extend the doctrine of Turner v.
Lou-isiana, 379 U. S. 466 (1965).
In Turner, two deputy sheriffs who testified as to the
circumstances of the defendant's confession served as
jury bailiffs throughout the three-day trial. During this
period the jury was sequestered and was in "close and
continual association" with the deputies. Id., at 468.
"The deputies ate with them, conversed with them, and
did errands for them." Ibid. Defendant's counsel repeatedly
argued against this practice at trial, but the
1058 OCTOBER TERM, 1971
REHNQUIST, J., dissenting 405 U.S.
trial judge refused to halt the deputy sheriffs' association
with the jury. Under such circumstances, this
Court found a denial of due process and reversed the
convictions.
Turner did not, however, establish a rigid, per se rule
automatically requiring the reversal of any conviction
whenever a Government witness comes into contact with
the jury. Indeed, certain chance contacts between witnesses
and jury members-while passing in the hall or
crowded together in an elevator-may be inevitable.
Although such contacts may be undesirable, as Judge
Learned Hand stated, "when it appears with certainty
that no harm has been done, it would be the merest
pedantry to insist upon procedural regularity." United
States v. Compagna, 146 F. 2d 524, 528 (CA2 1944),
cert. denied, 324 U.S. 867 (1945).
The Court in Turner recognized that there is a continuum
of potential prejudice resulting from different
types of contacts. It emphasized that the case before
it dealt "not with a brief encounter, but with a continuous
and intimate association throughout a threeday
trial." 379 U. S., at 473. The Court granted relief
only after analyzing the specific factors that might
have resulted in prejudice to the defendant.
In the instant case it is undisputed that the sheriff
never discussed the case with any member of the jury.
As bailiff he escortea the jury to the jury room on several
occasions. After the jury had found petitioner
guilty and while it was considering the penalty, the
sheriff responded to the jury's request for some soft
drinks. This contact with the jury consisted solely of
the sheriff walking into the room, placing the bottles
on the table, and immediately leaving the room. There
was no conversation beyond an exchange of formal pleasantries.
Finally, and perhaps most significantly, the
sheriff accompanied the jury to lunch.
ORDERS 1059
1052 REHNQUIST, J., dissenting
As Turner noted, under certain circumstances a series
of such informal contacts between witness and jury can
be prejudicial. A jury member is more likely to question
the credibility of an unknown Government witness
than that of a person whom he has come to know and
like after extended association. But in the present case
the sheriff's contacts with the jury were far less prejudicial
than in Turner. First, viewed quantitatively, the
amount of contact involved here appears closer to a
"brief encounter" than to the "continuous and intimate
association" emphasized there, where the jury was sequestered
with those witnesses for three days. Secondly,
it is important to note that this is not a case where
jurors became personally acquainted with the sheriff because
of his role as bailiff. Indeed, prior to the trial
which took place in Lamesa, Texas, a town of ouly about
13,000 people, the sheriff knew personally every single
member of the jury. I find it impossible to conclude
on this record that the sheriff's casual lunchtime conversation
with people he already knew deprived petitioner
of his constitutional rights.
By applying the Turner principle to the facts of this
case, the Court converts Turner's pragmatic approach
into an almost insurmountable per se rule. Yet, this
case decisively demonstrates the error of following
such a quasi-legislative approach. After the decision in
Turner, the Texas Legislature passed a statute forbidding
a Government witness to serve as bailiff. Tex.
Code Crim. Proc. Art. 36.24. This statute had prospective
application only, and thus did not affect Gonzales'
trial, which had taken place in 1961. In this manner
the legislature was able to prevent a problem from arising
in the future, without adopting a blunderbuss approach
which would upset final convictions whose reliability
and fairness could not reasonably be questioned.
The legislators left to the courts the job of reviewing
1060 OCTOBER TERM, 1971
REHNQUIST, J., dissenting 405 U.S.
past cases, using the more practical, flexible Turner
approach.
Applying this case-by-case approach, it is hard to discern
any unfairness in Gonzales' trial. Indeed, unlike
Turner, Gonzales' counsel never raised any objection at
trial to the sheriff's activities, although they were completely
open and obvious. While this failure to object
might not preclude petitioner's raising the issue now,
it does seem to indicate a recognition at the time by all
concerned that there was not in fact any dangerous
objectionable impropriety taking place.
Today's ruling bids fair to swell the ever-mounting
volume of constitutional litigation with which the courts
of this country must deal. Turner's reliance on Irvin
v. Dowd, 366 U.S. 717 (1961), leaves open the inference
that the gist of the claim of constitutional deprivation
depends, not on the fact that the particular State's witness
was a custodian of the jury, but on the fact that the State
presumably failed to insulate the jury from all contact
with the State's witnesses during the trial. Thus all of
the unintended but virtually inevitable contacts between
the State's witnesses, prosecuting attorneys, and the
jurors during trial recesses could become potential constitutional
infirmities in a conviction. Today's decision
may well convert into Fifth or Fourteenth Amendment
claims many matters that have in the past been dealt
with quite satisfactorily by the trial judge determining on
a motion for mistrial whether or not there was prejudice.
Cases dealing with the issue in the past do not suggest that
juror-witness contacts automatically raise issues of constitutional
dimension. See, e.g., Jordan v. United States,
133 U.S. App. D. C. 102,408 F. 2d 1305 (1969); State v.
Miles, 364 S. W. 2d 532 (Mo. 1963). See generally
Annot., 9 A. L. R. 3d 1275 ( 1966).
After revealing the activities of the deputy sheriffs
in Turner, 379 U. S., at 473, the Court stated that "it
405 U.S.
ORDERS
April 17, 1972
1061
would be blinking reality" to ignore the inherent prejudice
there. In my view, it is "blinking reality" to hold
that petitioner here was denied a substantial constitutional
right at the trial of his case. The Court having
determined that this matter should be treated summarily
and without argument, I would affirm.
M-iscellaneous Orders
No. 776, October Term, 1968. UTAH PUBLIC SERVICE
COMMISSION v. EL PAso NATURAL GAs Co. ET AL., 395
U. S. 464. Motion for modification of mandate (judgment)
and other relief denied. MR. JusTICE BRENNAN,
MR. JUSTICE WHITE, and MR. JusncE MARSHALL took
no part in the consideration or decision of this motion.
No. 70-223. CENTRAL HARDWARE Co. v. NATIONAL
LABOR RELATIONS BOARD ET AL. C. A. 8th Cir. [Certiorari
granted, 404 U. S. 1014.] Motion of American
Retail Federation for leave to participate in oral argument
as amicus curiae denied.
No. 70-250. CARLESON, DIRECTOR, DEPARTMENT OF
SocIAL \VELFARE, ET AL. v. REMILLARD ET AL. [Probable
jurisdiction noted, 404 U. S. 1013.] Motion of National
Welfare Rights Organization et al. for leave to file a brief
as amici curiae denied.
No. 71-485. GOTTSCHALK, ACTING COMMISSIONER oF
PATENTS v. BENSON Er AL. C. C. P. A. [Certiorari
granted, ante, p. 915.] Motion of petitioner to dispense
with printing appendix and to proceed on original record
granted. MR. JusTICE STEWART, MR. JusTICE BLACKMUN,
and MR. JusTICE PowELL took no part in the
consideration or decision of this motion.
No. 71-506. UNITED STATES ET AL. v. MIDWEST VIDEO
CoRP. C. A. 8th Cir. [Certiorari granted, 404 U. S.
1014.] Motion of American Civil Liberties Union for
leave to file a brief as amicus curiae granted.
1062 OCTOBER TERM, 1971
April 17, 1972 405 U.S.
~o. 71-732. SCHNECKLOTH, CoNSERVATION CENTER
SUPERINTENDENT v. BuSTAMONTE. C. A. 9th Cir. [Certiorari
granted, ante, p. 953.] Motion of respondent for
appointment of counsel granted. It is ordered that Stuart
P. Tobisman, Esquire, of Los Angeles, California, be,
and he is hereby, appointed to serve as counsel for respondent
pro hac vice in this case.
No. 71-829. MouRNING v. FAMILY PUBLICATIONS
SERVICE, INC. C. A. 5th Cir. [Certiorari granted, ante,
p. 987.J Motion of petitioner for leave to proceed further
herein in forma pauperis granted.
No. 71-1016. FEDERAL PowER COMMISSION v. LOUISIANA
PowER & LIGHT Co. ET AL.; and
No. 71- 1040. UNITED GAs PIPE LINE Co. ET AL. v.
LOUISIANA PowER & LIGHT Co. ET AL. C. A. 5th Cir.
[Certiorari granted, ante, p. 973.] Motions of Atlanta
Gas Light Co. et al., Monsanto Co. et al., and Humble
Oil & Refining Co. for leave to file briefs as amici curiae
granted. Motions of State of Louisiana, Humble Oil &
Refining Co., and Mobile Gas Service Corp. et al. for
leave to participate in oral argument as amici curiae
denied. MR. JusTICE POWELL took no part in the consideration
or decision of these motions.
No. 71-1017. GRAVEL v. UNITED STATES; and
No. 71-1026. UNITED STATES v. GRAVEL. C. A. 1st
Cir. [Certiorari granted, ante, p. 916.] Motion requesting
permission to divide time for oral argument on
behalf of amicus curiae granted.
No. A- 962 (71- 1248). CALIFORNIA v. ANDERSON.
Sup. Ct. Cal. Renewed application for stay denied.
No. 71- 5671. GmMARK v. BENSON, PRISON CAMP
ADMINISTRATOR. Motion for leave to file petition for
writ of habeas corpus denied. MR. JusrICE DouGLAS is
of the opinion that the motion should be granted.
ORDERS 1063
405 U.S. April 17, 1972
No. 71-6019. BLACKBURN v. HENDERSON, WARDEN;
and
No. 71-6077. NmrvER v. FIELD, MEN'S CoLONY Su-
PERINTENDENT. Motions for leave to file petitions for
writs of habeas corpus denied.
No. 71-983. ALBRECHT v. MATTHES, CHIEF JuDGE, u. s. COURT OF APPEALS. ET AL.;
No. 71-6040. ROJAS v. CHAMBERS, CHIEF JUDGE,
u. S. COURT OF APPEALS;
No. 71-6055. McCRAY v. MARYLAND;
No. 71-6088. GrnsoN v. UNITED STATES DISTRICT
COURT FOR THE N 0RTHI.;RN DISTRICT OF ALABAMA ET AL.;
No. 71-6096. GAY v. DowNING ET AL.; and
No. 71-6110. PrcKING v. KAUFMAN, U. S. DISTRICT
JUDGE. Motions for leave to file petitions for writs of
mandamus denied.
No. 71-6098. ARNOLD v. UNITED STATES. Motion for
leave to file petition for writ of prohibition denied.
Probable Jurisdiction Noted or Postponed
No. 71-1082. ASKEW, GOVERNOR OF FLORIDA, ET AL.
V. AMERICAN WATERWAYS OPERATORS, INC., ET AL. Appeal
from D. C. M. D. Fla. Probable jurisdiction noted.
Reported below: 335 F. Supp. 1241.
No. 71-364. MAHAN, SECRETARY OF BoARD OF ELECTIONS,
ET AL. V. HOWELL ET AL.;
No. 71-373. CITY OF VIRGINIA BEACH v. HowELL ET
AL.; and
No. 71-553. THORNTON ET AL. v. PRICHARD ET AL.
Appeals from D. C. E. D. Va. Probable jurisdiction
noted. Cases consolidated and a total of two hours allotted
for oral argument. MR. JusTICE PowELL took no
part in the consideration or decision of these cases. Reported
below: 330 F. Supp. 1138.
1064 OCTOBER TERM, 1971
April 17, 1972 405 U.S.
No. 71- 6078. LINDA R. S. v. RICHARD D. ET AL. Appeal
from D. C. N. D. Tex. Motion of appellants for
leave to proceed in form.a pauperis granted. Further
consideration of question of jurisdiction postponed to
hearing of case on the merits. Reported below: 335 F.
Supp. 804.
Certiorari Granted
No. 71-1011. BRONSTON v. UNITED STATES. C. A.
2d Cir. Certiorari granted. Reported below: 453 F. 2d
555.
No. 71-1059. KERN CouNTY LAND Co. v. OccmENTAL
PETROLEUM CORP. C. A. 2d Cir. Certiorari granted.
Reported below: 450 F. 2d 157.
Certiorari Denied. (See also Nos. 71 - 5974, 71-6067, and
71~6082, supra.)
No. 70-284. PENNSYLVANIA v. SILVERMAN. Sup. Ct.
Pa. Certiorari denied. Reported below: 442 Pa. 211,
275 A. 2d 308.
No. 71-851. WRENN v. NoRTH CAROLINA. Ct. App.
N. C. Certiorari denied. Reported below: 12 N. C.
App. 146, 182 S. E. 2d 600.
No. 71-861. LEFF ET AL. v. HousING AUTHORITY OF
THE CrrY OF EAST ORANGE ET AL. Super. Ct. N. J. Certiorari
denied.
No. 71- 914. BRAVER ET AL. v. UNITED STATES. C. A.
2d Cir. Certiorari denied. Reported below: 450 F. 2d
799.
No. 71-918. LovE ET AL. V. DADE COUNTY SCHOOL
BOARD ET AL. C. A. 5th Cir. Certiorari denied. Reported
below: 447 F. 2d 150.
No. 71-947. Vuc1 ET AL. v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 450 F. 2d 940.
ORDERS 1065
405 u. s. April 17, 1972
No. 71-963. BBF LIQUIDATING, INC. v. UNITED STATES.
C. A. 9th Cir. Certiorari denied. Reported below: 450
F. 2d 938.
No. 71-969. CENTURY ARMS, INc. v. CONNALLY, SECRETARY
OF THE TREASURY. C. A. 2d Cir. Certiorari denied.
Reported below: 449 F. 2d 1306.
No. 71-972. COCHRAN v. CosTILL ET AL. Sup. Ct.
Ohio. Certiorari denied.
No. 71-998. PENosr v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 452 F. 2d 217.
No. 71-1006. VIRGINIA NATIONAL BANK v. UNITED
STATES. C. A. 4th Cir. Certiorari denied. Reported
below: 450 F. 2d 1155.
No. 71-1007. REGENCY REALTY ET AL. v. CoMMISSIONER
OF INTERNAL REVENUE. C. A. 4th Cir. Certiorari
denied.
No. 71-1025. HENRY CouNTY BEVERAGE Co., INc. v.
SECRETARY OF THE TREASURY. C. A. 7th Cir. Certiorari
denied: Reported below: 454 F. 2d 413.
No. 71-1032. A. W. THOMPSON, INC. v. NATIONAL
LABOR RELATIONS BoARD ET AL. C. A. 5th Cir. Certiorari
denied. Reported below: 449 F. 2d 1333.
No. 71-103B. LEccr v. LEONARD ET AL. App. Div.,
Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.
No. 71-1062. PROCTER & GAMBLE Co. v. PUREX CORP.,
LTD. C. A. 9th Cir. Certiorari denied. Reported below:
453 F. 2d 288.
No. 71-1073. TRAP RocK INDUSTRIES, INc. v. KoHL,
COMMISSIONER OF TRANSPORTATION, ET AL. Sup. Ct.
N. J. Certiorari denied. Reported below: 59 N. J. 471,
284 A. 2d 161.
1066 OCTOBER TERM, 1971
April 17, 1972 405 U.S.
No. 71-1067. RILEY ET AL. v. DISTRICT OF COLUMBIA.
Ct. App. D. C. Certiorari denied. Reported below: 283
A. 2d 819.
No. 71- 1071. SAIKEN v. ILLINOIS. Sup. Ct. Ill. Certiorari
denied. Reported below: 49 Ill. 2d 504, 275 N. E.
2d 381.
No. 71-1074. BIXLER v. ILLINOIS. Sup. Ct. Ill. Certiorari
denied. Reported below: 49 Ill. 2d 328,275 N. E.
2d 392.
No. 71-1075. FERSHTMAN ET AL. v. ScHECTMAN ET AL.
C. A. 2d Cir. Certiorari denied. Reported below: 450
F. 2d 1357.
No. 71-1076. EMERY Arn FREIGHT CoRP. v. LocAL
UNION 295, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS OF
AMERICA, ET AL. C. A. 2d Cir. Certiorari denied. Reported
below: 449 F. 2d 586.
No. 71-1081. KEARNEY & TRECKER CoRP. v. GIDDINGS
& LEwrs, INc. C. A. 7th Cir. Certiorari denied. Reported
below: 452 F. 2d 579.
No. 71-1089. CALIFORNIA SHIPPING Co., INc., ET AL.
v. PACIFIC FAR EAST LINE, INC., ET AL. C. A. 9th Cir.
Certiorari denied. Reported below: 453 F. 2d 380.
No. 71-1096. MILES v. CITY-PARISH GOVERNMENT OF
EAST BATON RouGE PARISH ET AL. Sup. Ct. La. Certiorari
denied. Reported below: 260 La. 108, 255 So. 2d
93.
No. 71-1-108. NEWSOME ET AL. V. MASON & HANGERSILAS
MASON Co., INC., ET AL. C. A. 8th Cir. Certiorari
denied. Reported below: 449 F. 2d 425.
No. 71-5364. ARMSTEAD ET AL. v. VIRGINIA. Sup. Ct.
Va. Certiorari denied.
405 U.S.
ORDERS
April 17, 1972
1067
No. 71-1118. FORD MoToR Co. v. W. F. HoLT & SONS,
INc., ET AL. C. A. 6th Cir. Certiorari denied. Reported
below: 453 F. 2d 116.
No. 71-1203. BANCO POPULAR DE PUERTO Rico V. LAS
CoLINAS, INc., ET AL. C. A. 1st Cir. Certiorari denied.
Reported below: 453 F. 2d 911.
No. 71-5516. \VEDDEL v. CRAVEN, WARDEN, ET AL.
Sup. Ct. Cal. Certiorari denied.
No. 71-5517. WEDDEL v. CALIFORNIA. Ct. App. Cal.,
1st App. Dist. Certiorari denied.
No. 71-5645. ANDRADE v. TEXAS. Ct. Crim. App.
Tex. Certiorari denied. Reported below: 470 S. W. 2d
194.
No. 71-5652. GLOVER v. FLORIDA. Ct. of Record of
Escambia County. Certiorari denied.
No. 71-5682. O'DELL v. OHIO STATE MEDICAL BoARD.
Ct. App. Ohio, Clermont County. Certiorari denied.
Reported below: See 22 Ohio Misc. 138, 259 N. E. 2d
167:
No. 71-5693. REID v. VIRGINIA. C. A. 4th Cir. Certiorari
denied.
No. 71-5719. STANDIFER v. JARVIS ET AL. C. A. 10th
Cir. Certiorari denied.
No. 71-5730. MEREDITH v. EYMAN, WARDEN. C. A.
9th Cir. Certiorari denied.
No. 71-5742. SIMS ET AL. v. MICHIGAN. Sup. Ct.
Mich. Certiorari denied. Reported below: 385 Mich.
621, 189 N. W. 2d 41.
No. 71- 5787. JACKSON v. TEXAS. Ct. Crim. App.
Tex. Certiorari denied. Reported below: 470 S. W. 2d
201.
1068 OCTOBER TERM, 1971
April 17, 1972 405 U.S.
No. 71-5731. STUARD v. EYMAN, WARDEN. C. A. 9th
Cir. Certiorari denied.
No. 71-6010. JACKSON V. HENDERSON, CORRECTIONAL
SUPERINTENDENT. C. A. 2d Cir. Certiorari denied.
No. 71-6012. JACKSON v. WAINWRIGHT, CORRECTIONS
DIRECTOR. C. A. 5th Cir. Certiorari denied. Reported
below: 450 F. 2d 289.
No. 71-6013. EVANS v. MARYLAND. Ct. Sp. App.
Md. Certiorari denied.
No. 71-6015. GozNELLI v. BRANTLEY, WARDEN. Sup.
Ct. Ill. Certiorari denied. Reported below: 49 Ill. 2d
383, 275 N. E. 2d 396.
No. 71-6016. GUILE v. CALIFORNIA. Ct. App. Cal.,
2d App. Dist. Certiorari denied.
No. 71-6018. CLOSE v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. Reported below: 450 F. 2d 152.
No. 71-6020. SuNDLUN v. SuNDLUN. Sup. Ct. R. I.
Certiorari denied. Reported below: 108 R. I. 603, 277
A. 2d 9,18.
No. 71-6021. BOLTON v. KROPP, WARDEN. C. A. 6th
Cir. Certiorari denied.
No. 71-6022. JACKSON v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
No. 71-6024. WARNER v. NEBRASKA. Sup. Ct. Neb.
Certiorari denied. Reported below: 187 Neb. 335, 190
N. W. 2d 786.
No. 71-6025. Hoon v. BuRNE'IT ET AL. C. A. 5th
Cir. Certiorari denied. Reported below: 450 F. 2d 941.
No. 71-6026. JACKSON v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
405 U.S.
ORDERS
April 17, 1972
1069
No. 71-6027. BROWN v. Ross, CORRECTIONAL SUPERINTENDENT.
C. A. 4th Cir. Certiorari denied.
No. 71-6028. Ross v. HowARD, WARDEN. Sup. Ct.
R. I. Certiorari denied.
No. 71-6031. STRATTON v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 453 F. 2d 36.
No. 71-6032. PATTON v. INDIANA. Sup. Ct. Ind.
Certiorari denied. Reported below: - Ind. -, 275
N. E. 2d 794.
No. 71-6033. STEPHENSON v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 448 F.
2d 768.
No. 71-6036. JoHNSON v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 451 F. 2d 760.
No. 71-6038. W ALTENBERG v. SUPREME CouRT OF
RICHMOND COUNTY ET AL. C. A. 2d Cir. Certiorari
denied.
No. 71-6039. PICKETT v. HENDERSON, CORRECTIONAL
SUPERINTENDENT. C. A. 2d Cir. Certiorari denied.
No. 71-6041. TATE v. GRACE ET AL. C. A. 6th Cir.
Certiorari denied.
No. 71-6044. WILSON v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Reported below: 453 F. 2d 356.
No. 71-6045. RODGERS v. GAFFNEY, WARDEN. C. A.
10th Cir.. Certiorari denied.
No. 71-6046. LUCAS v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 453 F. 2d 141.
No. 71-6047. MAHLER v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 452 F. 2d 547.
No. 71-6048. MEDINA v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 452 F. 2d 1090.
1070 OCTOBER TERM, 1971
April 17, 1972 405 U.S.
No. 71-6049. MArrrsoN v. CALIFORNIA. Ct. App.
Cal., 2d App. Dist. Certiorari denied.
No. 71-6052. GEORGE v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 450 F. 2d 269.
No. 71-6053. MAGEE v. NELSON , WARDEN. C. A. 9th
Cir. Certiorari denied.
No. 71-6054. Evrns v. SLAYTON, PENITENTIARY Su-
PERINTENDENT. C. A. 4th Cir. Certiorari denied.
No. 71-6057. DOUGHERTY v. "GNITED STATES. C. A.
7th Cir. Certiorari denied.
No. 71-6058. AL"GELLO v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 451 F. 2d 1167.
No. 71-6061. HUME v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. Reported below: 453 F. 2d 339.
:No. 71-6062. CAPPS v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
No. 71-6063. FULLY v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 452 F. 2d 1012.
No. 71-6064. PARSONS v. ADAMS, WARDEN. C. A. 2d
Cir. Certiorari denied. Reported below: 456 F. 2d 257.
No. 71-6065. BYLAND v. CRAVEN, WARDEN. Sup. Ct.
Cal. Certiorari denied.
No. 71-6066. SULLIVAN v. SULLIVAN. Ct. App. Cal.,
2d App. Dist. Certiorari denied.
No. 71-6069. SMILEY v. CALIFORNIA. Ct. App. Cal.,
2d App. Dist. Certiorari denied.
No. 71- 6072. PARKER V. LEWIS, U.S. DISTRICT JUDGE.
C. A. 4th Cir. Certiorari denied.
No. 71-6075. \VATr v. PAGE, WARDEN. C. A. 10th
Cir. Certiorari denied. Reported below: 452 F. 2d 1174.
ORDERS 1071
405 U.S. April 17, 1972
No. 71-6073. LATHAN v. DEEGAN, CORRECTIONAL Su-
PERINTENDENT. C. A. 2d Cir. Certiorari denied. Reported
below: 450 F. 2d 181.
No. 71-6076. THOMPSON v. STROM ET AL. C. A. 8th
Cir. Certiorari denied.
No. 71-6079. BURROUGHS v. UNITED STATES. C. A.
5th Cir. Certiorari denied.
No. 71-6080. LucAs v. BROUGHTON. C. A. 2d Cir.
Certiorari denied.
No. 71-6083. WILKERSON v. UNITED STATES. C. A.
8th Cir. Certiorari denied. Reported below: 453 F. 2d
657.
No. 71-6084. ARCHIE v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 452 F. 2d 897.
No. 71-6086. LONG v. KLEINDIENST, ACTING ATrORNEY
GENERAL, ET AL. C. A. D. C. Cir. Certiorari denied.
No. 71- 6087. CHAMBERS ET AL. v. UNITED STATES.
C. A. 8th Cir. Certiorari denied. Reported below: 450
F. 2d 359.
No. 71-6089. WHITE v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Reported below: 451 F. 2d 559.
No. 71-6090. SPEAKS v. UNITED STATES. C. A. 1st
Cir. Certiorari denied. Reported below: 453 F. 2d 966.
No. 71-6091. JEFFRIES v. UNITED STATES. C. A. 2d
Cir. Certiorari denied.
No. 71-6092. HAGLER ET AL. V. RICHARDSON, SECRETARY
OF HEALTH, EDUCATION, AND WELFARE. C. A. 9th
Cir. Certiorari denied. Reported below: 451 F. 2d 45.
No. 71-6093. DEAN v. MOORE ET AL. C. A. 2d Cir.
Certiorari denied.
1072 OCTOBER TERM, 1971
April 17, 1972 405 U.S.
No. 71-6094. WEBB v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 446 F. 2d 760.
No. 71- 6095. WHITE, AKA LITTLEJOHN v. UNITED
STATES. C. A. 5th Cir. Certiorari denied. Reported
below: 450 F. 2d 264.
:N'o. 71- 6099. MARNIN v. URBANIAK ET AL. C. A. 3d
Cir. Certiorari denied.
No. 71 - 6101. ADAMS v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 454 F. 2d
1357.
No. 71- 6102. SMOTHERS v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 451 F. 2d
995.
No. 71-6103. PLEASANT v. RICHARDSON, SECRETARY OF
HEALTH, EDUCATION, AND WELFARE. C. A. 5th Cir.
Certiorari denied. Reported below: 450 F. 2d 749.
Ko. 71- 6105. BREAL'X v. l'NITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 450 F. 2d 948.
No. 71- 6107. MARRATTO v. FNITED STATES. C. A.
9th Cir. Certiorari denied.
No. 71 - 6108. BACA v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. Reported below: 451 F. 2d
1112.
No. 71 6111. BOSWELL v. CALIFORNIA. Ct. App. Cal..
1st App._ Dist. Certiorari denied.
Ko. 71 6113. JOHNSON V. DEPARTMENT OF WATER &
PowER oF THE CITY oF Los ANGELES ET AL. C. A. 9th
Cir. Certiorari denied. Reported below: 450 F. 2d 294.
No. 71- 6114. DENNIS v. McCRACKEN ET AL. Sup.
Ct. Fla. Certiorari denied.
ORDERS 1073
405 U.S. April 17, 1972
No. 71-6115. FREEMAN v. FIRST DISTRICT COURT OF
APPEALS ET AL. Sup. Ct. Ohio. Certiorari denied.
No. 71-758. GREEN v. MISSOURI. Sup. Ct. Mo. Certiorari
denied. MR. JUSTICE DOUGLAS is of the opinion
that certiorari should be granted. Reported below: 470
S. W. 2d 565.
No. 71-797. PUGLIA v. CoT"nm ET AL. C. A. 2d Cir.
Certiorari denied. MR. JusTICE DOUGLAS is of the opinion
that certiorari should be granted. Reported below:
450 F. 2d 1362.
No. 71-962. KELLEY ET AL. v. TEXAS STATE BoARD
OF MEDICAL EXAMINERS. Ct. Civ. App. Tex., 2d Sup.
Jud. Dist. Certiorari denied. MR. JusTICE DouGLAS is
of the opinion that certiorari should be granted. Reported
below: 467 S. W. 2d 539.
No. 71- 1035. LEccI v. CAHN, DISTRICT ATTORNEY
OF NASSAU CouNTY, ET AL. App. Div., Sup. Ct. N. Y.,
2d Jud. Dept. Certiorari denied. MR. JusTICE DouGLAS
is of the opinion that certiorari should be granted.
Reported below: 37 App. Div. 2d 779, 325 N. Y. S. 2d
400.
No. 71-1041. TAXAY v. SHAFFER, ADMINISTRATOR,
FEDERAL AVIATION ADMINISTRATION, ET AL. C. A. D . C.
Cir. Certiorari denied. MR. JUSTICE DouGLAS is of the
opinion that certiorari should be granted.
No. 71-1090. CABBLER v. VIRGINIA. Sup. Ct. Va.
Certiorari denied. MR. JUSTICE DOUGLAS is of the opinion
that certiorari should be granted. Reported below:
212 Va. 520, 184 S. E. 2d 781.
No. 71-1099. PHOENIX NEWSPAPERS, INc., ET AL. v.
PEAGLER ET AL. Super. Ct. Ariz., County of Maricopa.
Certiorari denied. MR. JusTICE DOUGLAS is of the opinion
that certiorari should be granted.
1074 OCTOBER TERM, 1971
April 17, 1972 405 U.S.
No. 71-1019. TEXTILE WoRKERS UNION OF AMERICA,
AFL---CIO v. MOORE OF BEDFORD, INC., ET AL. C. A.
4th Cir. Certiorari denied. MR. JusTICE DouGLAS is of
the opinion that certiorari should be granted. Reported
below: 451 F. 2d 406.
No. 71-5367. AMPHY v. LouISIANA. Sup. Ct. La.
Certiorari denied. MR. JusTICE DouGLAS is of the opinion
that certiorari should be granted. Reported below:
259 La. 161, 249 So. 2d 560.
No. 71-5657. WILLIAMS v. DIRECTOR, PATUXENT INSTITUTION.
Ct. Sp. App. Md. Certiorari denied. MR.
JusTICE DouGLAS is of the opinion that certiorari should
be granted.
No. 71-5714. SCHERER v. HocKER, \VARDEN, ET AL.
C. A. 9th Cir. Certiorari denied. MR. JUSTICE DouGLAS
is of the opinion that certiorari should be granted. Reported
below: 443 F. 2d 1176.
No. 71-6011. BREEDLOVE ET AL. v. TEXAS. Ct. Crim.
App. Tex. Certiorari denied. MR. JUSTICE DouGLAS is
of the opinion that certiorari should be granted. Reported
below: 470 S. W. 2d 880.
No. 71-6023. CAMARA v. UNITED STATES. C. A. 1st
Cir. Certiorari denied. MR. JusTICE DouGLAS is of the
opinion that certiorari should be granted. Reported below:
451 F. 2d 1122.
No. 71-6029. SILVERSTEIN v. UNITED STATES. C. A.
4th Cir. Certiorari denied. MR. JUSTICE DOUGLAS is
of the opinion that certiorari should be granted.
No. 71-979. CITY OF CHICAGO ET AL. v. FEDERAL
PowER COMMISSION. C. A. D. C. Cir. Certiorari denied.
MR. JusncE POWELL took no part in the consideration
or decision of this petition. Reported below:
147 U. S. App. D. C. 312, 458 F. 2d 731.
ORDERS 1075
405 u. s. April 17, 1972
No. 71-6030. TEAGUE v. WRIGHT. C. A. 6th Cir.
Certiorari denied. MR. JUSTICE DOUGLAS is of the opinion
that certiorari should be granted.
No. 71-976. TYRONE v. UNITED STATES. C. A. 9th
Cir. Motion to dispense with printing petition granted.
Certiorari denied. Reported below: 451 F. 2d 16.
No. 71-1002. LAMM v. VOLPE, SECRETARY OF TRANSPORTATION,
ET AL. C. A. 10th Cir. Certiorari denied.
MR. JusTICE DouGLAS took no part in the consideration
or decision of this petition. Reported below: 449 F. 2d
1202.
No. 71- 1042. ExER-GENIE, INC., Er AL. v. McDONALD
Er AL. C. A. 9th Cir. Motion of respondents for leave
to dispense with printing brief granted. Certiorari denied.
Reported below: 453 F. 2d 132.
No. 71-1052. McKINNEY, DBA PARIS BooKSTALL, ET
AL. v. ALABAMA. Sup. Ct. Ala. Certiorari denied. MR.
,JUSTICE DouGLAS, lVIR. JusTICE BRENNAN, and MR. Jus-
STEW ART are of the opinion that certiorari should be
granted and judgment reversed. Redrup v. New York,
386 U. S. 767 (1967). Reported below: 287 Ala. 648,
254 So .. 2d 714.
No. 71-1072. HEYMAN, TRUSTEE IN BANKRUPTCY v.
MAHIN, DIRECTOR OF REVENGE OF ILLINOIS, ET AL. Sup.
Ct. Ill. Motion of S. Bloom, Inc., for leave to file a
brief as amicus curiae granted. Certiorari denied. Reported
below: 49 Ill. 2d 284, 275 N. E. 2d 421.
No. 71-1077. ELLIS, TRUSTEE v. PowERS ET AL. Sup.
Ct. Hawaii. Motion to proceed on typewritten papers
granted. Certiorari denied.
No. 71-6104. PATTERSON v. LASH, WARDEN. C. A.
7th Cir. Certiorari denied. MR. JUSTICE pouGLAS and
MR. JUSTICE WHITE are of the opinion that certiorari
should be granted. Reported below: 452 F. 2d 150.
1076 OCTOBER TERM, 1971
April 17, 1972
Rehearing Denied
405 U.S.
No. 71-854. DEUTSCH Co., METAL COMPONENTS DIVISION
v. NATIONAL LABOR RELATIONS BOARD, ante, p.
988;
No. 71-869. DEUTSCH Co., ELECTRONIC COMPONENTS
DIVISION v. NATIONAL LABOR RELATIONS BoARD, ante, p.
988;
No. 71-1013. TEITELBAUM v. STONE, SECRETARY OF
STATE OF FLORIDA, ante, p. 986;
No. 71-1030. KIERNAN ET AL. v. LINDSAY, MAYOR
OF NEW YORK, ET AL., ante, p. 1000;
No. 71-1053. JAMIESON v. AMERICAN NATIONAL SAFE
DEPOSIT Co. ET AL., ante, p. 990;
No. 71-5599. WHEELER v. WARDEN, LEAVENWORTH
PENITENTIARY, ante, p. 935;
No. 71-5711. ENLOW v. LASH, WARDEN, ante, p. 952;
No. 71-5750. BAYS v. UNITED STATES, ante, p. 957;
and
No. 71-5802. McGAHEY v. UNITED STATES, ante, p.
977. Petitions for rehearing denied.
No. 70-5223. LIPSCOMB v. UNITED STATES, 404 U. S.
840;
No. 71-5579. DIGGS v. DUNNE ET AL., ante, p. 925;
and
No. 71-5749. SAsKo v. UNITED STATES, ante, p. 957.
Motions for leave to file petitions for rehearing denied.
No. 71-654. LovrsI v. VIRGINIA, ante, p. 936. Motion
to dispense with printing petition for rehearing
granted. Petition for rehearing denied.
No. 71-5762. SHARROW v. BROWN, ante, p. 968. Petition
for rehearing denied. MR. JusTICE MARSHALL
took no part in the consideration or decision of this
petition.
REPORTER'S NOTE
The next page is purposely numbered 1201. The numbers between
1076 and 1201 were intentionally omitted, in order to make it possible
to publish in-chambers opinions in the current preliminary prints of
the United States Reports with permanent page numbers, thus making
the official citations immediately available.

GRAVES v. BARNES
Opinion in Chambers
GRAVES v. BARNES
APPLICATION FOR STAY OF JUDGMENT
No. A-795. Decided February 7, 1972
1201
Application for stay of three-judge District Court's judgment in
Texas legislative reapportionment case, effecting elimination of
multi-member districts in Dallas and Bexar Counties, is denied, as
applicants did not sustain burden of showing that the decision below
was erroneous and that implementation of the judgment pending
appeal will lead to irreparable harm. Six other Justices, who
were consulted informally, believe the application should be denied.
See: 343 F. Supp. 704.
MR. JUSTICE POWELL, Circuit Justice.
This is an application for a stay of the judgment of a
three-ju~ge court sitting in the Western District of Texas.
The court's decision covers issues raised in four consolidated
actions. The principal issues were as follows :
1. In Graves v. Barnes, plaintiffs challenged the State's
reapportionment plan for the senatorial districts in Harris
County (Houston) on the ground that they were racially
gerrymandered.
2. In Regester v. Bullock, the State's reapportionment
plan for the Texas House of Representatives was challenged
on the grounds of population deviations from
the one-man, one--vote requirement, and on the impermissibility
of use of multi-member districts in the metropolitan
communities.
3. In M ariott v. Smith, the House plan provision calling
for a multi-member district for Dallas County was
challenged.
4. In Archer v. Smith, a generally similar attack was
leveled against the use of multi-member districting in
Bexar County (San Antonio).
The four cases were consolidated and tried by a single
three-judge panel. After full pretrial discovery, during
1202 OCTOBER TERM, 1971
Opinion in Chambers 405 U.S.
which over 2,000 pages of depositions were taken, the
District Court heard testimony at a 31/2-day hearing.
The extensive per curiam opinion, and the concurring
and dissenting opinions, which were handed down after
some three weeks of deliberation, reflect a careful and
exhaustive consideration of the issues in light of the
facts as developed. The court's conclusions, in substance,
were as follows:
(a) The Senate redistricting plan, as promulgated by
the Texas Legislative Redistricting Board, was approved.
{ b) The House redistricting plan was held violative
of the Equal Protection Clause because of population deviations
from equality of representation. But, in an
exercise of judicial restraint, the court suspended its
decision in this respect for the purpose of affording the
Legislature of Texas an opportunity to adopt a new and
constitutional plan. Meanwhile, the forthcoming election
may be held under the plan found to be deficient.
(c) The multi-member district plans for Dallas and
Bexar Counties were found to be unconstitutional under
the standard prescribed by this Court in Fortson v. Dorsey,
379 "C. S. 433, 438-439 ( 1965); Burns v. Ric.hardson,
384 U. S. 73, 88 (1966); and Whitcomb v. Chavis, 403
U.S. 124, 143 (1971). The three-judge court found from
the evidence that these multi-member district plans would
operate to minimize or cancel out the voting strength of
racial minority elements of the voting population, and
ordered the implementation of a plan calling for singlemember
districts for Dallas and Bexar Counties. The
State offered no plan for single-member districts for these
counties, and the court was compelled to draft its own
plan. To minimize the disruptive impact of its ruling,
the court ordered that the State's requirement that candidates
run from the districts of their residence be abated
for the forthcoming election. A candidate residing anyGRAVES
v. BARNES 1203
. 1201 Opinion in Chambers
where within the county, therefore, may run for election
from any district in the county.
( d) The evidence with respect to nine other metropolitan
multi-member districts was found insufficient to
warrant treatment similar to that required for Dallas and
Bexar Counties.
( e) Finally, the court's order stated that its judgment
was final and that no stays would be granted.
In view of the foregoing holdings, the only present
necessity to consider a stay relates to the District Court's
decision with respect to multi-member districts in Dallas
and Bexar Counties. A number of principles have been
recognized to govern a Circuit Justice's in-chambers review
of stay applications. Stays pending appeal to this
Court are granted only in extraordinary circumstances.
A lower court judgment, entered by a tribunal that was
closer to the facts than the single Justice, is entitled to a
presumption of validity. Any party seeking a stay of
that judgment bears the burden of showing that the decision
below was erroneous and that the implementation
of the judgment pending appeal will lead to irreparable
harm.
As a threshold consideration, Justices of this Court
have consistently required that there be a reasonable
probability that four members of the Court will consider
the issue sufficiently meritorious to grant certiorari or to
note probable jurisdiction. See Mahan v. Howell, 404
U. S. 1201, 1202; Organized Village of Kake v. Egan,
80 S. Ct. 33, 4 L. Ed. 2d 34 (1959). Of equal importance
in cases presented on direct appeal-where we lack the
discretionary power to refuse to decide the merits-is the
related question whether five Justices are likely to conclude
that the case was erroneously decided below. Justices
have also weighed heavily the fact that the lower
court refused to stay its order pending appeal, indicating
· 1204 OCTOBER TERM, 1971
Opinion in Chambers 405 U.S.
that it was not sufficiently persuaded of the existence of
potentib.lly irreparable harm as a result of enforcement
of its judgment in the interim.
In applying these considerations to the present case,
I conclude that a stay should not be granted. The case
received careful attention by the three-judge court, the
members of which were "on the scene" and more familiar
with the situation than the Justices of this Court; and
the opinions attest to a conscientious application of
principles enunciated by this Court. Moreover, the order
of the court was narrowly drawn to effectuate its decision
with a minimum of interference with the State's legislative
proces...c;es, and with a minimum of administrative
confusion in the short run.
Following a practice utilized by other Justices in passing
on applications raising serious constitutional questions
( see Meredith v. Fair, 83 S. Ct. 10, 9 L. Ed. 2d 43
( 1962); McGee v. Eyman, 83 S. Ct. 230, 9 L. Ed. 2d 267
(1963)), I have consulted informally with each of my
Brethren who was available* at this time during the recess.
Although no other Justice has participated in the
drafting of this opinion, I am authorized to say that each
of them would vote to deny this application. My denial
of a stay at this point, of course, may not be taken
either as a statement of my own position on the merits
of the difficult questions raised in this case, or as an indication
of what may, in fact , ultimately be the view of my
colleagues on the Court.
The application is denied.
* All Justices, save two who were not available, have been consulted.
CHAMBERS v. MISSISSIPPI 1205
Opinion in Chambers
CHAMBERS v. MISSISSIPPI
ON APPLICATION FOR RECONSIDERATION OF ORDER ADMITTING
PETITIONER TO BAIL
No. A-785 (71-5908). Decided February 14, 1972
Application of Mississippi Attorney General, contending that petitioner's
return to the community will create a dangerous situation,
supported by affidavits of local law enforcement officials
stating in conclusory terms that petitioner's presence will create
a tense and explosive situation in the community, is denied and the
order admitting petitioner to bail is reaffirmed, as petitioner is a
lifelong resident of the community, owns his home, has his family
there, served on the local police force, is a deacon in a local
church, has no prior record, and was released on bail for 14 months
before trial, apparently without incident.
See: 252 So. 2d 217.
MR. JUSTICE PowELL, Circuit Justice.
On January 31, 1972, counsel for Leon Chambers, petitioner
in No. 71~5908, filed with me, as Circuit Justice
for the States constituting the Fifth Circuit, an application
for bail pending consideration of his petition for writ
of certiorari. Petitioner's counsel detailed the reasons
making it appropriate for me to exercise my discretion,
under 18 U. S. C. § 3144, to admit this petitioner to bail.
A copy of his certiorari petition, which raises two nonfrivolous
constitutional questions, was also attached to
his application. The Attorney General of Mississippi
declined to file a response objecting to the application.
On February 1, 1972, after careful review of petitioner's
application, I entered an order admitting him to bail.
In order to assure that petitioner would not flee or pose
a danger to any other person, I imposed a number of
conditions on his release. He was required to post bail
bond in the sum of $15,000; to live at home with his
family in his hometown of Woodville, Mississippi; to
find employment; and to report, immediately upon release
and periodically thereafter, to the local sheriff.
1206 OCTOBER TERM, 1971
Opinion in Chambers 405 U.S.
Ten days later, on February 11, 1972, the Attorney
General of Mississippi filed an application for reconsideration
of my order admitting petitioner to bail. Although
the Rules of this Court do not provide for such
an application, I have carefully re-examined all papers
submitted including a response from petitioner's counsel.
The Attorney General, in addition to contending that
petitioner's case is frivolous, asserts that petitioner's
"return to the community will create a dangerous situation
to citizens of that community." In support of
this latter allegation, he proffers the affidavits of the
County Sheriff, the local Police Commissioner, and the
Chief of Police of Woodville. In conclusory terms, these
documents state that petitioner's presence will create
a tense and explosive situation in the community, which
might result in bloodshed. No specific facts are stated
in support of the opinions expressed. On the contrary,
it appears that this petitioner's roots in the community
and record of good behavior merit his release pending
final determination of his case. Petitioner is a lifelong
resident of Woodville; he owns a home, subject to a
mortgage; he has a wife and nine children there; he
served for a period on the Woodville police force; he is
a deacon in the local Baptist Church; and he has no
prior criminal record. Before his trial he was released
on bail for approximately 14 months, apparently without
incident. During his period of incarceration after his conviction
it appears that petitioner was a model prisoner.
On this record, I am unable to conclude that petitioner's
mere presence in the community poses such
a threat to the public "that the only way to protect
against it would be to keep [him] in jail." Sellers v.
United States, 89 S. Ct. 36, 38, 21 L. Ed. 2d 64, 67
(1968) (Black, J., in chambers).
The order admitting petitioner to bail is hereby
reaffirmed. It is so ordered.
INDEX
ABSENCE OF SPOUSE. See Procedure, 1.
ABUSIVE LANGUAGE. See Constitutional Law, VI, 1.
ADMINISTRATION OF PRISONS. See Constitutional Law, VI,
2; Procedure, 7.
ADMINISTRATIVE PROCEDURE. See Federal Trade Commission;
Procedure, 4.
ADMINISTRATIVE PROCEDURE ACT. See also Standing, 1.
Judicial review-Person aggrieved-Standing.-Person has standing
to seek judicial revirw under the Act only if he can show that
he himself has suffered or will suffer injury, whether economic or
otherwise. Here, where petitioner asserted no individualized harm
to itself or its members, it lacked standing to maintain the action.
Sierra Club v. Morton, p. 727.
ADMINISTRATIVE REMEDIES. See Habeas Corpus, 2; Procedure,
6.
ADVANCES TO CORPORATION. See Taxes, 1.
ADVICE OF COUNSEL. See Confession of Judgment, 1; Constitutional
Law, III, 1.
AFFIDAVITS. See Bail.
AFTERMARKET. See Antitrust Acts, 2.
AGRICULTURAL MARKETING ACT. See Farm Credit Act;
Taxes, 3.
AID TO FAMILIES WITH DEPENDENT CHILDREN. See
Procedure, 1.
AIRPORTS. See also Constitutional Law, I.
Charge per airline passenger-Construction and maintenance
, costs-Public facilities .-Charge per passenger on scheduled commercial
airliners designed to make users of state-provided facilities
pay reasonable charge for their construction and maintenance may
constitutionally be imposed on interstate and domestic users alike,
and such charges do not discriminate against interstate commerce
and travel. Airport Authority v. Delta Airlines, p. 707.
ALLOCATION OF TAXES. See Banks; Taxes, 1-2.
1207
1208 INDEX
. ANTITRUST ACTS. See also Federal Trade Commission; Procedure,
4.
1. Clayton Act-Spark plugs-Lessening competition.-District
Court correctly held that effect of Ford's acquisition of Autolite spark
plug assets and trade name may be substantially to lessen competition
in spark plug business and thus to violate § 7 of the Clayton
Act; and that alleged beneficial effects of the merger did not· save
it from illegality under that provision. Ford Motor Co. v. United
States, p. 562.
2. Clayton Act-Suit by State-Injury to general economy.-Section
4 of the Clayton Act does not authorize a State to sue for damages
for an injury to its general economy allegedly attributable to a
violation of the antitrust laws. Hawaii v. Standard Oil Co., p. 251.
3. Divestiture-Pre-acquisition market structure-Spark plugs.-
Divestiture is necessary to restore pre-acquisition market structure,
in which Ford was leading spark plug purchaser from independent
sources and in which a substantial segment of the market was open
to competitive selling. Ancillary injunctive provisions, prohibiting
Ford from manufacturing plugs for 10 years, and ordering it to buy
one-half of its annual requirements from the divested plant for five
years, are necessary to give the divested plant an opportunity to
re-establish its competitive position. Ford Motor Co. v. United
States, p. 562.
4. Sherman Act-Cooperative association-Limitations on territory
and reselling at wholsesale.-Scheme of Topco, a cooperative
association of regional supermarket chains, of allocating territories
to minimize competition at retail level is horizontal restraint constituting
per se violation of § 1 of the Sherman Act, and District
Court erred in applying rule of reason to restrictive practices here
involved. Topco's limitations upon reselling at wholesale are for
same reason per se invalid under § 1. United States v. Topco Associates,
p. 596.
APPEAL BOARDS. See Judicial Review; Selective Service
Act, 2.
APPEALS. See also Confession of Judgment, 2; Constitutional
Law, III, 2, 4; V, 2; Elections, 1; Jurisdiction, 2.
Cross appeals-Affirmance of judgment.-In light of fact that
named defendants and intervenors have taken no cross appeal, affirmance
of judgment below does not mean that District Court's
opinion and judgment are approved as to other aspects and details
that were not before this Court. Swarb v. Lennox, p. 191.
APPLICATION FOR RECONSIDERATION OF BAIL. See Bail.
INDEX
APPLICATION FOR STAY. See Stays.
APPORTIONMENT. See Stays.
1209
ARBITRATION. See Certiorari; Fair Labor Standards Act;
Labor.
ARMED FORCES. See Habeas Corpus, 2; Procedure, 6.
ARRESTS FOR VAGRANCY AND SUSPICION. See Constitutional
Law, III, 3; Vagrancy, 1.
ASSISTANCE OF COUNSEL. See Evidence; Habeas Corpus, 1;
Procedure, 3, 8.
ASSISTANT UNITED STATES ATTORNEYS. See Constitutional
Law, III, 6.
ATTORNEYS. See Constitutional Law, VII, 2; Evidence; Habeas
Corpus, 1; Procedure.
AUTOLITE SPARK PLUGS. See Antitrust Acts, 2-3.
AUTOMOBILE MANUFACTURERS. See Antitrust Acts, 2.
AWARENESS OF CONSEQUENCES. See Confession of Judgment,
1; Constitutional Law, III, 1.
BAD DEBTS. See Taxes, 1.
BAIL.
Danger to community-Community ties-Previous relea.se on
bail.-Application of Mississippi Attorney General for reconsideration
of bail, contending that petitioner's return to the community will
create a dangerous situation, supported by affidavits of local law
enforcement officials, denied and order admitting petitioner to bail
is reaffirmed in view of petitioner's ties to the community, his lack
of prior record, and his rele,ase on bail for 14 months before trial,
apparently without incident. Chambers v. Mississippi (PowELL, J.,
in chambers), p. 1205.
BALLOTS. See Constitutional Law, V, 7; Elections, 1; Injunctions,
2; Mootness.
BANKS. See also Taxes, 3.
Controlled corporations-Income taxes-Allocation of reinsurance
premium income.--Since the national banks did not receive and were
prohibited by law from receiving sales commissions, no part of reinsurance
premium income could be attributable to them, and the
Commissioner's exercise of 26 U. S. C. § 482 authority to allocate
income of controlled corporations was not warranted. Commissioner
v. First Security Bank of Utah, p. 394.
1210 INDEX
BANKS FOR COOPERATIVES. See Farm Credit Act; Taxes, 3.
BENEFIT PAYMENTS. See Procedure, 1; Social Security Act.
BEXAR COUNTY. See Stays.
BONA FIDE RESIDENTS. See Constitutional Law, V, 4.
BONDING COMPANIES. See Taxes, 1.
BORROWERS. See Banks; Farm Credit Act; Taxes, 2-3.
BOSTON STATE HOSPITAL. See Constitutional Law, III, 5;
Loyalty Oaths.
BREACH OF THE PEACE. See Constitutional Law, VI, 1.
BUDDHISTS. See Constitutional Law, VI, 2; Procedure, 7.
BURDEN OF PROOF. See Constitutional Law, V, 5; Juries;
Stays.
BUSINESS BAD DEBTS. See Taxes, 1.
CANDIDATES. See Elections.
CAPITAL ASSETS. See Farm Credit Act; Taxes, 3.
"CARMEN BABY." See Obscenity.
CELLER-KEFAUVER ANTI-MERGER ACT. See Antitrust
Acts, 2.
CERTIFICATION OF ELECTIONS. See Constitutional Law, IV.
CERTIORARI. See also Fair Labor Standards Act; Labor.
Improvident grant-Collective-bargaining agreement-Not applicable
to all disputes.-Grant of certiorari, to decide whether employees
may sue for overtime allegedly withheld in violation of Fair
Labor Standards Act if complaint of that violation was also subject
to grievance and arbitration provisions of collective-bargaining
agreement, was improvident in view of subsequent disclosure that
those provisions did not apply to all disputes but merely those based
on violations of the agreement. Iowa Beef Packers v. Thompson,
p. 228.
CHILDREN. See Constitutional Law, III, 7; V, 1; Procedure, 1.
CIVIL RIGHTS. See Jurisdiction, 1.
CLASSIFICATIONS. See Constitutional Law, V, 4; Judicial
Review; Selective Service Act.
CLAYTON ACT. See Antitrust Acts, 1, 2.
CODEFENDANTS. See Constitutional Law, VII, 1; Procedure,
2.
INDEX 1211
COGNOVIT PROVISIONS. See Confession of Judgment.
COLLECTIVE-BARGAINING AGREEMENTS. See Certiorari;
Fair Labor Standards Act; Labor.
COMITY. See Habeas Corpus, 2; Procedure, 6.
COMMERCE. See Airports; Antitrust Acts, 1, 4; Constitutional
Law, I.
COMMERCIAL AIRCRAFT. See Airports; Constitutional Law, I.
COMMISSIONS. See Banks; Taxes, 2.
COMMITMENT FOR TREATMENT. See Habeas Corpus, 3;
Procedure, 5.
COMMUNITY TIES. See Bail.
COMPELLING STATE INTERESTS. See Constitutional Law,
V, 4.
COMPETITION. See Antitrust Acts, 2, 4; Federal Trade Commission;
Procedure, 4.
CONDITIONS ON DIVESTITURE. See Antitrust Acts, 3.
CONFESSION OF JUDGMENT. See also Appeals; Constitutional
Law, III, 1-2.
1. Comideration for waiver of notice-Cognovit provisions-Due
process.--Petitioner corporation, for consideration and with full
awareness of legal consequences, waived its right to pre-judgment
notice and hearing, and on facts of case, which involved contractual
arrangements between two corporations acting with advice of counsel,
the procedure under the cognovit clause (which is not unconstitutional
per se) did not violate petitioner corporation's Fourteenth
Amendment rights. D. H. Overmyer Co. v. Frick Co., p. 174.
2. Pennsylvania cogrwvit provisions-Waiver of rights-Constitutionality.-
Pennsylvania rules and statutes relating to cognovit provisions
are not unconstitutional on their face, as under appropriate
circumstances a cognovit debtor may be held effectively and legally
t.o have waived the rights he would possess if the document he signed
had contained no cognovit provisions. Swarb v. Lennox, p. 191.
CONFESSIONS. See Constitutional Law, VII, 1; Procedure, 2.
CONFRONTATION. See Constitutional Law, VII, I; Procedure,
2.
CONNECTICUT. See Garnishment; Injunctions, I; Jurisdiction,
1.
CONSCIENTIOUS OBJECTORS. See Habeas Corpus, 2; Selective
Service Act.
1212 INDEX
CONSERVATIONISTS. See Administrative Procedure Act;
Standing, 1.
CONSIDERATION FOR WAIVER. See Confession of Judgment,
I ; Constitutional Law, III, I.
CONSTITUTIONAL INVALIDITY. See Evidence; Procedure, 8.
CONSTITUTIONAL LAW. See also Airports; Confession of
Judgment; Contempt; Elections, 1; Habeas Corpus; Injunctions,
2; Juries; Loyalty Oaths; Mootness; Procedure, 2, 7;
Standing, I; Vagrancy, 2.
I. Commerce Ola.use.
Charge per airline passenger-Burden on commerce.-Charge per
passenger on scheduled commercial airliners designed to make users
of state-provided facilities pay reasonable charge for their construction
and maintenance may constitutionally be imposed on interstate
and domestic users alike, and such charges do not discriminate
against interstate commerce and travel. Airport Authority v. Delta
Airlines, p. 707.
II. Double Jeopardy.
Criminal, contempt-Refusal, to answer grand jury's questions.-
Where court ordered petitioner to answer grand jury's questions,
which he had refused to answer despite grant of immunity, and he
refused, his sentence for violation qf N. Y. Judiciary Law § 750 was
a penalty for criminal contempt for purposes of the Double Jeopardy
Clause. Colombo v. New York, p. 9.
III. Due Process.
1. Cognovit provisions-Consideration for waiver of notice.-Petitioner
corporation, for consideration and with full awareness of legal
consequences, waived its right to pre-judgment not-ice and hearing,
and on facts of case, which involved contractual arrangements between
two corporations acting with advice of counsel, the procedure
under the cognovit clause (which is not unconstitutional per se) did
not violate petitioner corporation's Fourteenth Amendment rights.
D. H. Overmyer Co. v. Frick Co., p. 174.
2. Cognovit provisions-Pennsylvania scheme.-Pennsylvania rules
and statutes relating to cognovit provisions are not unconstitutional
on their face, as under appropriate circumstances a cognovit debtor
may be held effectively and legally to have waived the rights he
would possess if the document he signed had contained no cognovit
provisions. Swarb v. Lennox, p. 191.
3. Jacksonville, Florida, vagrancy ordinance-Vagueness.-The
ordinance is void for vagueness, in that it "fails to give a person of
ordinary intelligence fair notice that his contemplated conduct is
INDEX 1213
CONSTITUTIONAL LAW-Continued.
forbidden by the statute," it encourages arbitrary and erratic arrests
and convictions, it makes criminal activities which by modern standards
are normally innocent, and it places almost unfettered discretion
in the hands of the police. Papachristou v. City of Jacksonville,
p. 156.
4. Landlord and tenant-Early trial and limitation of litigable
issues.-Neither the early trial provision nor the limitation of litigable
issues in Oregon's Forcible Entry and Wrongful Detainer statute is
invalid on its face under the Due Process Clause, as time for trial
preparation is not unduly short where the issue is simply whether
the tenant has paid or has held over, and due process is not denied
because rents are not suspended while landlord's alleged wrongdoings
are litigated, as Oregon may treat tenant's and landlord's undertakings
as independent covenants. Lindsey v. Normet, p. 56.
5. Massachusetts' loyalty oath-Not void for vagueness.-Massachusetts'
loyalty oath is not void for vagueness. Perjury, the sole
punishment, requires knowing and willful falsehood, which removes
danger of punishment without fair notice; and there is no problem
of punishment inflicted by mere prosecution, as there has been no
prosecution under the statute since enactment, nor has any been
planned. Cole v. Richardson, p. 676.
6. Promise of leniency to key witness-Failure to disclose.-Neither
the Assistant United States Attorney's lack of authority to make
alleged promise of leniency to key witness, nor his failure to inform
his superiors and associates of such promise is controlling, and the
prosecution's duty to present all material evidence to jury was not
fulfilled and constitutes a violation of due process requiring a new
trial. Giglio v. United States, p. 150.
7. Unwed father's fitness as parent-Hearing.-Under Due Process
Clause petitioner was entitled to a hearing on his fitness as
parent before his children were taken from him. State cannot
merely presume that unmarried fathers in general and petitioner in
particular are unsuitable and neglectful parents. Stanley v. Illinois,
p. 645.
IV. Elections.
Election of Senator-Recount by State.-Article I, § 5, does not
prohibit a recount of ballots by Indiana in close senatorial election,
as recount will not prevent an independent Senate evaluation of the
election any more than the original count did, and it would be mere
speculation to assume that Indiana's procedure would impair Senate's
ability to make an independent final judgment. Roudebush v.
Hartke, p. 15.
1214 INDEX
CONSTITUTIONAL LA W---Continued.
V. Equal Protection.
1. Distribution of contraceptives-Unmarried persons.-By providing
dissimilar treatment for married and unmarried persons who
are similarly situated, the Massachusetts statute limiting distribution
of contraceptives violates the Equal Protection Clause of the Fourteenth
Amendment. Eisenstadt v. Baird, p. 438.
2. Landlord and tenants-Double bonds.-Double-bond prerequisite
for appealing an action under Oregon's Forcible Entry and
Wrongful Detainer statute violates the Equal Protection Clause
as it arbitrarily discriminates against tenants wishing to appeal from
adverse decisions. It heavily burdens the statutory right of a defendant
to appeal and it is not necessary to effectuate State's purpose
of preserving the property in issue. Lindsey v. Normet, p. 56.
3. Landlord and tenants-Early trial, and limitation of litigable
issues.-Neither the early trial provision nor the limitation of litigable
issues in Oregon's Forcible Entry and Wrongful Detainer statute
is invalid under the Equal Protection Clause as the State has
the power to implement its legitimate objective of achieving rapid
and peaceful settlement of possessory disputes between landlord and
tenant by enacting special provisions applicable only to such disputes.
Lindsey v. Normet, p. 56.
4. Registration to vote-Residence requirements.-Tennessee's requirements
of residence in the State for one year and in the county
for three months as prerequisites for registration to vote are violative
of the Equal Protection Clause of the Fourteenth Amendment,
as they are not necessary to further a compelling state interest.
Dunn v. Blumstein, p. 330.
5. Selection of jurors-Racial discrimination.-Petitioner made out
prima facie case of im·idious racial discrimination in selection of
grand jury that indicted him-not only on statistical basis but by
showing that selection procedures were not racially neutral-and
the State did not meet the burden of rebutting the presumption of
unconstitutionality in the procedure used. Alexander v. Louisiana,
p. 625.
6. Sex discrimination-Women jurors.-Petitioner's contentions regarding
discrimination against women in the selection of grand jurors
are not reached. Alexander v. Louisiana, p. 625.
7. Texas primary elections-Filing fees.-Texas primary election
filing fee system, which requires payment of fees ranging as high
as $8,900, contravenes the Equal Protection Clause of the Fourteenth
Amendment. Bullock v. Carter, p. 134.
INDEX 1215
CONSTITUTIONAL LAW-Continued.
8. Unwed father's fitness as parent-Hearing.-Denial to unwed
fathers of the hearing on fitness accorded to all other parents whose
custody of children is challenged by the State constitutes a denial
of equal protection of the laws. Stanley v. Illinois, p. 645.
VI. First Amendment.
1. Breach of the peace-Vagueness.-Georgia statute providing
that anyone using "opprobrious words or abusive language, tending
to cause a breach of the peace" shall be guilty of a misdemeanor,
which has not been narrowed by the courts to apply only to "fighting"
words "which by their very utterance . . . tend to incite an
immediate breach of the peace," Chaplin.sky v. New Hampshire, 315
U. S. 568, 572, is on its face unconstitutionally vague and overbroad
under the First and Fourteenth Amendments. Gooding v. Wilson,
p. 518.
2. Prisoners-Free exercise of religion.-On basis of allegations,
Texas has discriminated against petitioner by denying him reasonable
opportunity to pursue his Buddhist faith comparable to that offered
other prisoners adhering to conventional religious concepts, and cause
is remanded for hearing and appropriate findings. Cruz v. Beto,
p. 319.
VII. Sixth Amendment.
I. Confrontation-Codefendant's confession-Harmless error.-Any
violation of Bruton v. United States, 391 U. S. 123, that might have
occurred by introduction of confession of codefendant, who did not
testify, was harmless beyond reasonable doubt in view of overwhelming
evidence of petitioner's guilt as manifested by his confession,
which completely comported with objective evidence, and comparatively
insignificant effect of codefendant's admission. Schneble
v. Florida, p. 427.
2. Counsel at preliminary hearings-Retroactivity.-IIIinois Supreme
Court's holding that Coleman v. Alabama, 399 U. S. 1, in
which this Court held that a prelimnary hearing is a critical stage
of the criminal process at which the accused is constitutionally entitled
to assistance of counsel, is not retroactive, is affirmed. Adams
v. Illinois, p. 278.
CONSTITUTIONAL OATHS. See Constitutional Law, III, 5;
Loyalty Oaths.
CONSTRUCTION CORPORATIONS. See Taxes, 1.
CONSUMER FINANCING CONTRACTS. See Appeals; Confession
of Judgment, 2; Constitutional Law, III, 2.
1216 INDEX
CONSUMER PROTECTION. See Federal Trade Commission;
Procedure, 4.
CONTEMPT. See also Constitutional Law, II.
Refusal, to amwer grand jury's questions-Court order-Double
jeopardy .-Where court ordered petitioner to answer grand jury's
questions, which he had refused to answer despite grant of immunity,
and he refused, his sentence for violation of N. Y. Judiciary Law
§ 750 was a penalty for criminal contempt for purposes of the Double
Jeopardy Clause. Colombo v. New York, p. 9.
CONTEXT OF EXHIBITION. See Obscenity.
CONTRACEPTIVES. See Constitutional Law, V, 1; Standing, 2.
CONTRIBUTING TO DELINQUENCY. See Habeas Corpus, 3;
Procedure, 5.
CONTROLLED CORPORATIONS. See Banks; Taxes, 3.
COOPERATIVE ASSOCIATIONS. See Antitrust Acts, 4; Farm
Credit Act; Taxes, 3.
CORPORATIONS. See Confession of Judgment; Constitutional
Law, III, 1; Taxes, 2.
COST OF PRIMARIES. See Constitutional Law, V, 7; Elections,
2.
COUNSEL. See Constitutional Law, VII, 2; Evidence; Habeas
Corpus, 1.
COUNSEL'S ADVICE. See Confession of Judgment, 1; Constitutional
Law, III, 1.
COURT OF APPEALS. See Federal Trade Commission; Procedure,
8.
COURTS. See Jurisdiction, 2; Removal.
COURTS-MARTIAL See Habeas Corpus, 2; Procedure, 6.
CREDIBILITY. See Evidence; Procedure, 8.
CREDIT LIFE INSURANCE. See Banks; Taxes, 2.
CREDITORS. See Appeals; Confession of Judgment, 1-2; Constitutional
Law, III, 1-2.
CRIMINAL CONTEMPT. See Constitutional Law, II; Contempt.
CRIMINAL LAW. See Constitutional Law, II; III, 3, 5, 6; V,
5; VI, 1-2; VII, 1-2; Evidence; Habeas Corpus, 1, 3; Obscenity;
Standing, 2.
CRIMINAL RECORD. See Evidence; Procedure, 8.
INDEX 1217
CROSS-ACTIONS. See Jurisdiction, 2; Removal.
CROSS APPEALS. See Appeals; Confession of Judgment, 2;
Constitutional Law, III, 2.
CUSTODY OF CHILDREN. See Constitutional Law, III, 7;
V, 8.
DALLAS COUNTY. See Stay.
DAMAGES. See Antitrust Acts, 1.
DANGER TO COMMUNITY. See Bail.
DEBTORS. See Appeals; Confession of Judgment, 1-2; Constitutional
Law, III, 1-2.
DEBTS. See Taxes, 1.
DECEPTIVE PRACTICES. See Federal Trade Commission; Procedure,
4.
DEDUCTIONS. See Farm Credit Act; Taxes, 3.
DELINQUENCY OF MINOR. See Habeas Corpus, 3; Procedure,
5.
DEMOCRATIC PRIMARIES. See Constitutional Law, V, 7;
Elections, 2.
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.
See Social Security Act.
DEPENDENTS. See Constitutional Law, III, 7; Procedure, 1.
DESERTION. See Procedure, 1.
DISABILITY PAYMENTS. See Social Security Act.
DISCHARGE FROM MILITARY. See Habeas Corpus, 2; Procedure,
6.
DISCHARGE OF EMPLOYEES. See National Labor Relations
Act.
DISCRETION. See Constitutional Law, VI, 2; Judicial Review;
Procedure, 7; Selective Service Act, 1.
DISCRIMINATION. See Constitutional Law, I; V, 2, 6; VI,
2; Elections, 2; Juries.
DISTRIBUTION OF CONTRACEPTIVES. See Constitutional
Law, V, 1; Standing, 2.
DISTRICT COURTS. See Habeas Corpus, 1-2; Procedure, 1.
DIVERSITY JURISDICTION. See Jurisdiction, 2; Removal.
DIVESTITURE. See Antitrust Acts, 3.
1218 INDEX
DIVISION OF MARKETS. See Antitrust Acts, 4.
DOMINANT MOTIVATION. See Taxes, 1.
DOUBLE JEOPARDY. See Constitutional Law, II; Contempt.
DOUBLE-RENT BONDS. See Constitutional Law, III, 4.
DRAFT BOARDS. See Judicial Review; Selective Service Act, 1.
DRESS MEMORIAL AIRPORT. See Airports; Constitutional
Law, I.
DRIVE-IN THEATERS. See Obscenity.
DRUGS. See Constitutional Law, VII, 2; Standing, 2.
DUE PROCESS. See Constitutional Law, III, 1-7; Habeas Corpus,
1-3; Procedure, I, 3, 8; Vagrancy, 1.
DURATIONAL RESIDENCE REQUIREMENTS. See Constitutional
Law, V, 4.
DUTY TO PRESENT EVIDENCE. See Constitutional Law,
III, 6.
EARLY TRIAL PROVISIONS. See Constitutional Law, III, 4.
ECOLOGY. See Administrative Procedure Act; Standing, 1.
ECONOMIC INJURY. See Administrative Procedure Act; Standing,
1.
ECONOMY OF THE STATES. See Antitrust Acts, 1.
ELECTION DISTRICTS. See Stays.
ELECTIONS. See also Constitutional Law, V, 4, 7; Injunctions,
2; Mootness.
1. Senatorial elections-Recounts-Mootness.-Issue here, whether
recount is a valid exercise of State's power to prescribe times, places,
and manner of holding elections, pursuant to Art. I, § 4, of the Constitution,
or is a forbidden infringement on Senate's power under Art.
I, § 5, is not moot, as Senate has postponed making final determination
of who is entitled to the seat pending outcome of this action.
Roudebush v. Hartke, p. 15.
2. Texa,s primary elections-Filing fees .-Texas primary election
filing fee system, which requires payment of fees ranging as high as
$8,900, contravenes the Equal Protection Clause of the Fourteenth
Amendment. Bullock v. Carter, p. 134.
ELECTRICAL CONTRACTOR. See National Labor Relations
Act.
ELECTRIC AUTOLITE CO. See Antitrust Acts, 2.
INDEX 1219
EMPLOYER AND EMPLOYEES. See Certiorari; Fair Labor
Standards Act; Labor; National Labor Relations Act;
Taxes, 1.
ENJOINING STATE COURT ACTIONS, See Garnishment; Injunctions,
1; Jurisdiction, 1.
ENJOINING STATE PROCEEDINGS. See Constitutional Law,
IV; Elections, 1; Injunctions, 2; Mootness.
EQUAL PROTECTION OF THE LAWS. See Constitutional
Law, V, 1-8; Habeas Corpus, 3; Procedure, 7; Stay.
EVANSVILLE, INDIANA. See Airports; Constitutional Law, I.
EVICTION. See Constitutional Law, Ill, 4.
EVIDENCE. See also Constitutional Law, III, 6; V, ,5; VII, l;
Procedure, 1, 8; Social Security Act.
Impeaching credibility-Previous convictions-Constitutional invalidity.-
Court of Appeals' denial of habeas corpus relief to petitioner,
who admitted previous convictions in response to prosecutor's
interrogation for purpose of impeaching petitioner's credibility, and
who alleges that the previous convictions were constitutionally invalid
because he was denied assistance of counsel at previous trials, vacated
and remanded for further proceedings. Loper v. Beto, p. 473.
EVIDENTIARY HEARINGS. See Habeas Corpus, 1, 3; Procedure,
5.
EXEMPTIONS. See Judicial Review; Selective Service Act, 2.
EXHAUSTION OF REMEDIES. See Habeas Corpus, 2; Procedure,
1.
EXHIBITIONS. See Obscenity.
FACIAL UNCONSTITUTIONALITY. See Appeals; Confession
of Judgment, 2; Constitutional Law, III, 2, 4.
FAIR LABOR STANDARDS ACT. See also Certiorari; Labor.
Overtime pay-Collective-bargaining agreement-Grievance and
arbitration provisions.-Grant of certiorari, to decide whether employees
may sue for ovettime allegedly withheld in violation of Fair
Labor Standards Act if complaint of that violation was also subject
to grievance and arbitration provisions of collective-bargaining
agreement, was improvident in view of subsequent disclosure that
those provisions did not apply to all disputes but merely those based
on violations of the agreement. Iowa Beef Packers v. Thompson,
p. 228.
FAIR NOTICE. See Constitutional Law, III, 2; Obscenity; Vagrancy,
2.
1220 INDEX
FARM CREDIT ACT. See also Taxes, 3.
Banks for Cooperatives-Required purchase of stock by borrower-
Capitai, asset.-Purchasc of Class C stock of Banks for Cooperatives,
required of a borrower by the Act, was acquisition of capital asset
having a long-term value, and cost was not an amount "contracted
to pay for the use of the borrowed money," and thus was not deductible
as interest. United States v. Mississippi Chemical Corp.,
p. 298.
FATHERS. See Constitutional Law, V, 8.
FEDERAL QUESTION. See Procedure, 1.
FEDERAL-STATE RELATIONS. See Elections, 1; Habeas Corpus,
1 ; Jurisdiction, 1 ; Removal.
FEDERAL TRADE COMMISSION. See also Procedure, 4.
Protection of consumers-Unfair methods of competition-Deceptive
practices.-The FTC has power to protect consumers as well
as competitors and is authorized to determine whether challenged
practices, though posing no threat to competition within the letter
or spirit of the antitrust laws, are nevertheless either unfair methods
of competition, or unfair or deceptive acts or practices. FTC v.
Sperry & Hutchinson Co., p. 233.
FEES. See Airports; Constitutional Law, · I; V, 7; Elections, 2.
FIFTH AMENDMENT. See Constitutional Law, III, 6; Contempt,
FIGHTING WORDS. See Constitutional Law, VI, 1.
FILING FEES. See Constitutional Law, V, 7; Elections, 2.
FILMS. See Obscenity.
FINANCING PRIMARIES. See Constitutional Law, V, 7; Elections,
2.
FIRST AMENDMENT. See Constitutional Law, III, 5; VI, 1-2;
Procedure, 7.
FITNESS OF PARENTS. See Constitutional Law, III, 7.
FLORIDA. See Constitutional Law, III, 3; VII, 1; Procedure, 2;
Vagrancy, 1- 2.
FORCIBLE ENTRY AND WRONGFUL DETAINER STATUTE.
See Constitutional Law, V, 2.
FORD MOTOR CO. See Antitrust Acts, 2.
INDEX 1221
FOURTEENTH AMENDMENT. See Confession of Judgment,
1, 2; Constitutional Law, III, 3- 5, 7; V, 4-5, 7; VI, 1-2;
Contempt; Habeas Corpus, 3; Procedure, 1-2; Standing, 2;
Stay.
FREEDOM OF SPEECH. See Constitutional Law, VI, 1.
FREE EXERCISE OF RELIGION. See Constitutional Law, VI,
2 ; Procedure, 7.
GARNISHMENT. See also Injunctions, 1; Jurisdiction, 1.
Prejudgment garnishment-Participation of state courts-Injunctions.-
Prejudgment garnishment under ConnectiC'ut statutes is
levied and maintained without participation of state courts and thus
an injunction against such action is not barred by prm·isions of 28
U. S. C. § 2283. Lynch v. Household Finance Corp., p. 538.
GEORGIA. See Constitutional Law, VI, 1.
GRAND JURIES. See Constitutional Law, V, 5; Contempt.
GRANT OF IMMUNITY. See Constitutional Law, II; Contempt.
GREEN STAMPS. See Federal Trade Commission; Procedure, 4.
GRIEVANCES. See Certiorari; Fair Labor Standards Act;
Labor.
GROCERY PRODUCTS. See Antitrust Acts, 4.
GUARDIANSHIP. See Constitutional Law, III, 7.
GUILTY PLEAS. See Habeas Corpus, 1.
HABEAS CORPUS. See also Evidence; Procedure, 5-6, 8.
1. Evidentiary hea.rings-TV aiver of counsel-State post-conviction
hearings.-Where material facts bearing on issue of whether petitioner
knowingly and voluntarily waived his constitutional right to
rounsel before entering guilty plea in state trial court were inadequately
developed in state post-conviction hearing, Federal District
Court considering habeas corpus petition was under a duty to hold
an evidentiary hearing. Boyd v. Dutton, p. 1.
2. Serviceman - Conscientious objector - Court-martial proceedings.-
District Court should not ha.ve stayed its hand in habeas
corpus petition by member of armed forces who had exhausted all
his administrative remedies in attempting to secure discharge as
ronscientious objector, until completion of court-martial proceedings,
as military justice system in proces~ing of court-martial charge could
not provide the discharge sought by petitioner with promptness and
certainty. Parisi v. Davidson, p. 34.
1222 INDEX
HABEAS CORPUS-Continued.
3. Wisconsin Sex Crimes Act-Commitment for treatment-Waiver
of claims.-Federal habeas corpus is not barred by every state procedural
default, and an evidentiary hearing is required to determine
whether petitioner knowingly and intelligently made deliberate
strategic waiver of his claims in state court. Humphrey v. Cady,
]). 504.
HARMFUL ARTICLES. See Constitutional Law, V, 1; Standing,
2.
HARMLESS ERROR. See Constitutional Law, VII, 1; Procedure,
2.
HA WAIi. See Antitrust Acts, 1.
HEALTH. See Constitutional Law, V, 1; Standing, 2.
HEALTH, EDUCATION, AND WELFARE. See Social Security
Act.
HEARINGS. See Constitutional Law, III, 2, 5, 7; VI, 2; Habeas
Corpus, 1, 3; Procedure, 3, 7.
HEROIN. See Constitutional Law, VII, 2; Procedure, 3.
HOLDING COMPANIES. See Banks; Taxes, 2.
HORIZONTAL RESTRAINTS. See Antitrust Acts, 4.
HOURS OF WORK. See Certiorari; Fair Labor Standards Act;
Labor.
HOUSING. See Constitutional Law, III, 4; V, 3-4.
ILLEGITIMATE CHILDREN. See Constitutional Law, III, 7;
V, 8.
ILLINOIS. See Constitutional Law, III, 7; VII, 2; Procedure, 3.
IMMUNITY. See Constitutional Law, II; Contempt.
IMPEACHING CREDIBILITY. See Evidence; Procedure, 8.
INCOME TAXES. See Banks; Taxes, 2.
INDEMNITY AGREEMENTS. See Taxes, 1.
INDIANA. See Airports; Elections, 1; Procedure, 1.
INDUCTION ORDERS. See Judicial Review; Selective Service
Act, 1.
INFORMING SUPERIORS. See Constitutional Law, III, 6.
INDEX 1223
INJUNCTIONS. See also Constitutional Law, IV; Elections, 1;
Garnishment; Jurisdiction, 1 ; Mootness; Standing, 1.
1. Prejudgment garnishment-Participation of state courts.-Prejudgment
garnishment under Connecticut statutes is levied and
maintained without participation of state courts, and thus an injunction
against such action is not barred by provisions of 28 U . S. C.
§ 2283. Lynch v. Household Finance Corp., p. 538.
2. State court proceedin gs-Nonjudicial, functions-Recount commissioners.-
District Court was not barred from issuing an injunction
by 28 U. S. C. § 228.3, which generally prohibits a federal court
from enjoining state court proceedings, as Indiana court's functions
of determining that recount petition is correct as to form and appointing
recount commissioners are nonjudicial, and § 2283 does not
restrict enjoining state court's acting in nonjudicial capacity. Roudebush
v. Hartke, p. 15.
INJURY. See Administrative Procedure Act; Standing, 1.
INJURY TO ECONOMY. See Antitrust Acts, 1.
INSURANCE PREMIUMS. See Banks ; Taxes, 2.
INTEREST DEDUCTIONS. See Farm Credit Act; Taxes, 3.
INTERNAL REVENUE. See Banks; Taxes, 2, 3.
INTERNAL REVENUE CODE. See Farm Credit Act; Taxes, 3.
INTERPLEADERS. See Jurisdiction, 2; Removal.
INTERSTATE COMMERCE. See Airports; Constitutional
Law, I.
INTERSTATE TRAVEL. See Constitutional Law, I ; V, 4.
INTERVENING REGULATIONS. See Social Security Act.
INTERVENING STATUTE. SeP Judicial Review; Selective
Service Act, 1.
INVALID CONVICTIONS. See Evidence; Procedure, 8.
INVESTIGATIONS. See National Labor Relations Act.
IOWA. See l'air Labor Standards Act.
IRREPARABLE HARM. See Stay.
JACKSONVILLE. See Constitutional Law, III, 3; Vagrancy, 2.
JUDGES. See Constitutional Law, II; Contempt .
.JUDGMENTS. See Constitutional Law, III, 1-2; Confession of
Judgment, 1-2; Federal Trade Commission; Procedure, 1, 4.
1224 INDEX
JUDICIAL CONSTRUCTION. See Constitutional Law, VI, 1.
JUDICIAL REVIEW. See also Administrative Procedure Act·,
Selective Service Act, 1; Standing, 1.
Selective Service appeals-Pre-induction judiciol, review.-Section
10 (b)(3) of the Military Selective Service Act of 1967 forecloses
pre-induction judicial review where the board has used its discretion
and judgment in determining facts and arriving at classification for
registrant. In such case registrant's judicial review is confined to
situations where he asserts defense to criminal prosecution or where,
after induction, he seeks writ of habeas corpus. Fein v. Selective
Service System, p. 365.
JURIES. See also Constitutional Law, II; V, 5; Procedure, 5;
Taxes, 1.
Equol, protection of the laws-Racial discriminatio11r-Presumption.-
Petitioner made out prima facie case of invidious racial discrimination
in selection of grand jury that indicted him-not only
on statistical basis but by showing that selection procedures were
not racially neutral-and the State did not meet the burden of
rebutting the presumption of unconstitutionality in the procedure
used. Alexander v. Louisiana, p. 625.
JURISDICTION. See also Garnishment; Injunctions, 2; Procedure,
1; National Labor Relations Act; Removal.
1. Personol, liberties-Property rights-28 U. S. C. § 1343 (3) .-
There is no distinction between personal liberties and proprietary
rights with respect to jurisdiction under 28 U. S. C. § 1343 (3). It
would be virtually impossible to apply a "personal liberties" limitation
on that section as there is no real dichotomy between personal
liberties and property rights. It has long been recognized that rights
in property are basic civil rights. Lynch v. Household Finance
Corp., p. 538.
2. Removal to federal court-Trial of issues-Diversity.-Where
after removal case is tried on merits without objection and federal
court enters judgment, issue on appeal is not whether case was
properly removed, but whether District Court would have had
original jurisdiction if case had been filed in that court. Here there
was diversity jurisdiction in District Court if action had been
brought there originally. Grubbs v. General Electric Credit Corp.,
p. 699.
JURY SELECTION. See Constitutional Law, V, 5; Juries.
JURY TRIALS. See Habeas Corpus, 3; Procedure, 5.
KNOWLEDGEABLE VOTERS. See Constitutional Law, V, 4.
INDEX 1225
LABOR. See also Certiorari; Fair Labor Standards Act; National
Labor Relations Act.
Collective-bargaining agreement - Overtime pay - Fair Labor
Standards Act.-Grant of certiorari, to decide whether employees
may sue for overtime allegedly withheld in violation of Fair Labor
Standards Act if complaint of that violation was also subject to
grievance and arbitration provisions of collective-bargaining agreement,
was improvident in view of subsequent disclosure that those
provisions did not apply to all disputes but merely those based on
violations of the agreement. Iowa Beef Packers v. Thompson, p.
228.
LACK OF AUTHORITY, See Constitutional Law, III, 6.
LANDLORD AND TENANTS, See Constitutional Law, III, 4.
LAW ENFORCEMENT OFFICIALS. See Bail.
LEASES. See Appeals; Confession of Judgment, 2; Constitutional
Law, III, 2.
LEGISLATIVE AIMS. See Constitutional Law, V, l; Standing,
2.
LEGISLATIVE REAPPORTIONMENT. See Stays.
LENGTH OF RESIDENCE. See Constitutional Law, V, 4.
LENIENCY. See Constitutional Law, III, 6.
LICENSES. See Antitrust Acts, 4.
LIMITATION OF ISSUES. See Constitutional Law, III, 4.
LITIGABLE ISSUES. See Constitutional Law, III, 4.
LOAN INSURANCE. See Banks; Taxes, 2.
LOCATION OF EXHIBITIONS. See Obscenity.
LOSSES. See Taxes, I.
LOUISIANA. See Constitutional Law, V, 5-6; Juries.
LOYALTY OATHS. See also Constitutional Law, III, 5.
Massachusetts' oath for public employees-Constitutionality.-
District Court properly held that the "uphold and defend" clause,
a paraphrase of the constitutional oath, is permissible. The "oppose
the overthrow" clause was not designed to require specific action to
be taken in some hypothetical or actual situation but was to assure
that those in positions of public trust were willing to commit themselves
to live by constitutional processes of our government. Cole
v. Richardson, p. 676.
1226 INDEX
LUNCH PERIODS. See Certiorari; Fair Labor Standards Act;
Labor.
MARKET DIVISIONS. See Antitrust Acts, 4.
MARRIED PERSONS. See Constitutional Law, III, 7; Standing,
2.
MASSACHUSETTS. See Constitutional Law, III, 5; V, I; Loyalty
Oaths; Standing, 2.
MEMBERSHIP CORPORATIONS. See Administrative Procedure
Act; Standing, 1.
MERGERS. See Antitrust Acts, 2.
MILITARY JUDICIAL SYSTEM. See Habeas Corpus, 2; Procedure,
6.
MILITARY SELECTIVE SERVICE ACT of 1967. See Judicial
Review; Selective Service Act, 1.
MINERAL KING VALLEY. See Administrative Procedure Act;
Standing, 1.
MISSISSIPPI. See Bail.
MODIFICATION OF JUDGMENT. See Federal Trade Commission;
Procedure, 4.
MONOPOLIZATION. See Antitrust Acts, 1.
MOOTNESS. See also Constitutional Law, IV; Habeas Corpus, 3.
Senatorial elections-Recounts-Seating of Senator.-Issue here,
whether recount is a valid exercise of State's power to prescribe
times, places, and manner of holding elections, pursuant to Art. I,
§ 4, of the Constitution, or is a forbidden infringement on Senate's
power under Art. I, § 5, is not moot, as Senate has postponed making
final determination of who is entitled to the seat pending outcome
of this action. Roudebush v. Hartke, p. 15.
MORALS. See Constitutional Law, III, 7; Standing, 2.
MOTION PICTURES. See Obscenity.
MOTION TO DISMISS. See Procedure, 1.
MOTIVATION. See Taxes, 1.
MULTI-MEMBER DISTRICTS. See Stay.
MURDER. See Constitutional Law, VII, 1; Procedure, 2.
NARCOTICS. See Constitutional Law, VII, 2; Procedure, 7.
NATIONAL BANK ACT. See Banks; Taxes, 2.
INDEX 1227
NATIONAL FORESTS. See Administrative Procedure Act;
Standing, 1.
NATIONAL GAME REFUGE. See Administrative Procedure
Act; Standing, 1.
NATIONAL LABOR RELATIONS ACT.
Investigation of unfair labor practice charge-Statements of employees-
Retaliatory discharges .-Employer's discharge of employees
because they gave writ1en sworn statements to NLRB field examiner
investigating an unfair labor practice charge filed against employer,
but who had neither filed the charge nor testified at formal hearing
on the charge, constituted a violation of § 8 (a) ( 4) of the Act.
NLRB v. Scrivener, p. 117.
NATURAL RESOURCES. See Administrative Procedure Act;
Standing, 1.
NEGROES. See Constitutional Law, V, 5-6; Juries.
NEW HAMPSHIRE. See Airports; Constitutional Law, I.
NEW YORK. See Constitutional Law, II; Contempt.
NONBUSINESS BAD DEBTS. See Taxes, 1.
NONJUDICIAL ACTIVITIES. See Constitutional Law, IV;
Elections, 1 ; Injunctions, 2; Mootness.
NOTICE. See Constitutional Law, III, 3; VII, 1; Obscenity; Social
Security Act; Vagrancy, 1-2.
NOTICE AND HEARING. See Confession of Judgment.
OATHS. See Constitutional Law, VI, 1; Loyalty Oaths.
OBSCENITY.
Motion pictures-Drive-in theater- Location of exhibition.-State
may not criminally punish the exhibition of motion picture film at
drive-in theater where the statute assertedly violated has not given
fair notice that the location of the exhibition was a vital part of the
offense. Rabe v. Washington, p. 313.
OHIO. See Confession of Judgment, 1; Constitutional Law,
III, 1.
OIL INDUSTRY. See Antitrust Acts, 1.
OLIGOPOLY, See Antitrust Acts, 2.
ON CALL. See Certiorari; Fair Labor Standards Act; Labor.
OPPOSE OVERTHROW OF GOVERNMENT. See Constitutional
Law, III, 5; Loyalty Oaths.
1228 INDEX
OPPROBRIOUS WORDS. See Constitutional Law, VI, I.
ORAL PRESENTATIONS. See Social Security Act.
ORDINANCES. See Constitutional Law, III, 3 ; VII, 1; Vagrancy,
1-2.
OREGON. See Constitutional Law, III, 4.
OVERBREADTH. See Constitutional Law, III, 5 ; VI, 1; Loyalty
Oaths.
OVERCHARGES. See Antitrust Acts, I.
OVERTHROW OF GOVERNMENT. See Constitutional Law, III,
5 ; Loyalty Oaths.
OVERTIME PAY. See Certiorari; Fair Labor Standards Act;
Labor.
PARENS PATRIAE. See Antitrust Acts, 1.
PARENTAL FITNESS. See Constitutional Law, III, 7.
PARTIES. See Jurisdiction, 2; Removal.
PASSENGERS. See Airports; Constitutional Law, I.
PAYMENT OF RENT. See Constitutional Law, III, 4.
PENNSYLVANIA. See Appeals; Confession of Judgment, 2 ;
Constitutional Law, III, 2.
PERJURY. See Constitutional Law, III, 5; Loyalty Oaths.
PER SE VIOLATIONS. See Antitrust Acts, 4.
PERSON AGGRIEVED. See Administrative Procedure Act ;
Standing, 1.
PERSONAL RIGHTS. See Garnishment; Injunctions, l; Jurisdiction,
1.
PETROLEUM PRODUCTS. See Antitrust A cts, I.
PHILADELPHIA. See Appeals ; Confession of Judgment, 2 ;
Constitutional Law, III, 2.
PLEADINGS. See Procedure, 1.
PLEAS. See Habeas Corpus, 1.
POLITIOAL PARTY COMMITTEES. See Constitutional Law,
V, 7 ; Elections, 2.
PORTLAND, OREGON. See Constitutional Law, III, 4; V, 2-3.
POSSESSORY DISPUTES. See Constitutional Law, III, 4; V,
2-3.
POST-CONVICTION HEARINGS. See Habeas Corpus, 1.
INDEX 1229
PRACTICE OF RELIGION. See Constitutional Law, VI, 2; Procedure,
7.
PRE-INDUCTION SUITS. See Judicial Review; Selective Service
Act, 1.
PRE-JUDICIAL GARNISHMENT. See Garnishment; Injunctions,
1 ; Jurisdiction, 1.
PRELIMINARY HEARINGS. See Constitutional Law, VII, 2;
Procedure, 3.
PREMIUM INCOME. See Banks; Taxes, 2.
PRESUMPTIONS. See Constitutional Law, III, 7; V, 4-5; Juries.
PREVIOUS CONVICTIONS. See Evidence; Procedure, 8.
PRIMA FACIE CASE. See Constitutional Law, V, 5-6; Juries.
PRIMARY ELECTIONS. See Constitutional Law, V, 7; Elections,
2.
PRISONERS. See Constitutional Law, II; III, 3, 6; V, 5; VI, 1;
Habeas Corpus, 1, 3; Procedure, 2-3, 6-8.
PRIVATE-LABEL BRANDS. See Antitrust Acts, 4.
PROCEDURE. See also Certiorari; Confession of Judgment, 1-2;
Constitutional Law, III, 4, 6-7; Contempt; Elections, 1;
Habeas Corpus, 1; Juries; Removal; Selective Service Act,
1; Social Security Act; Standing; Stay.
1. Challenge to welfare regulations-Jurisdiction-Exhamtion of
remedies.-Dismissal by District Court. of appellants' challenge to
Indiana welfare regulations for failure to exhaust administrative
remedies, and alternatively for lack of jurisdiction and failure of
pleadings to present substantial federal question, was erroneous.
Court plainly had jurisdiction and exhaustion is not required in circumstances
of this case. If court's characterization of federal question
as insubstantial was based on face of complaint, it was error;
if it treated motion to dismiss as one for summary judgment its order
is unilluminating as to facts or law and was improperly entered.
Carter v. Stanton, p. 669.
2. Confession of codefendant-Confrontation-Harmless error.-
Any violation of Bruton v. United States, 391 U. S. 123, that might
have occurred by introduction of confession of codefendant, who did
not testify, ·was harmless beyond reasonable doubt in view of overwhelming
evidence of petitioner's guilt as manifested by his confession,
which completely comported with objective evidence, and
comparatively insignificant effect of codefendant's admission.
Schneble v. Florida, p. 427.
1230 INDEX
PROCEDURE-Continued.
3. Counsel at preliminary hearings-Retroactivity.-Illinois Supreme
Court's holding that Coleman v. Alabama, 399 U. S. 1, in
which this Court held that a preliminary hearing is a critical stage
of the criminal process at which the accused is constitutionally entitled
to assist.a.nee of counsel, is not retroactive, is affirmed. Adams
v. Illinois, p. 278.
4. Court of Appeals-Modification of judgment.-Judgment of
Court of Appeals setting aside FTC's order is affirmed, but because
the court erred in its construction of § 5 of the Federal Trade Commission
Act, its judgment is modified to extent that case is remanded
with instructions to return it to the FTC for further proceedings.
FTC v. Sperry & Hutchinson Co., p. 233.
5. Evidentiary hearing-Wisconsin Sex Crimes Act-Jury determination.-
Petitioner's claims concerning his commitment under
the Sex Crimes Act are substantial enough to warrant an evidentiary
hearing. That Act and the Mental Health Act are apparently not
mutually exclusive, and an equal protection claim would be persuasive
if it develops on remand that petitioner was deprived of jury determination
or other procedural protections merely by arbitrary
decision to seek commitment under one Act rather than t he other.
Humphrey v. Cady, p. 504.
6. Habeas corpus-Conscientious objector-Court-martial.-District
Court should not have stayed its hand in habeas corpus petition
by member of armed forces, who had exhausted all his administrative
remedies in attempting to secure discharge as conscientious
objector, until completion of court-martial proceedings, as military
judicial system in processing of court-martial charge could not provide
the discharge sought by petitioner with promptness and certainty.
Parisi v. Davidson, p. 34.
7. Hearings-P1'isoners-Free exercise of religion.-On basis of
allegations, Texas has discriminated against petitioner by denying
him reasonable opportunity to pursue his Buddhist faith comparable
to that offered other prisoners adhering to conventional religious concepts,
and cause is remanded for hearing and appropriate findings.
Cruz v. Beto, p. 319.
8. Previous convictions-Impeaching credibility-Constitutional, invalidity
.-Court of Appeals' denial of habeas corpus relief to petitoner,
who admitted previous convictions in response to prosecutor's
interrogation for purpose of impeaching petitioner's credibility, and
who alleges that the previous convictions were constitutionally invalid
because he was denied assistance of counsel at previous trials,
vacated and remanded for further proceedings. Loper v. Beto, p.
473.
INDEX 1231
PROMISE OF LENIENCY. See Constitutional Law, III, 6.
PROMISSORY NOTES. See Garnishment; Injunctions, 1; Jurisdiction,
1.
PROPERTY RIGHTS. See Garnishment; Injunctions, 1; Jurisdiction,
1.
PROSECUTION. See Constitutional Law, III, 6.
PROSECUTOR'S OFFICE. See Constitutional Law, III, 6.
PROSPECTIVITY. See Constitutional Law, VII, 2; Procedure, 3.
PROTECTION OF CONSUMERS. See Federal Trade Commission;
Procedure, 4.
PROXIMATE RELATIONSHIP. See Taxes, 1.
PUBLIC AIRPORT FACILITIES. See Airports; Constitutional
Law, I.
PUBLIC EMPLOYEES. See Constitutional Law, III, 5; Loyalty
Oaths.
PUNISHMENT. See Constitutional Law, II; III, 5; Loyalty
Oaths.
PURITY OF BALLOT BOX. See Constitutional Law, V, 4.
QUALIFICATIONS OF SENATORS. See Constitutional Law,
IV; Elections, 1 ; Injunctions, 2; Mootness.
QUESTIONNAIRES. See Constitutional Law, V, 5-6; Juries.
RACIAL DISCRIMINATION. See Constitutional Law, V, 5-6;
Juries.
RAPE. See Constitutional Law, V, &-6; Juries.
REAPPORTIONMENT. See Stays.
REBUTTAL EVIDENCE. See Social Security Act.
RECONSIDERATION OF BAIL. See Bail.
RECOUNTS. See Constitutional Law, IV; Elections, 1; Injunctions,
1 ; Mootness.
RECREATIONAL DEVELOPMENT. See Administrative Procedure
Act; Standing, 1.
REDEMPTION OF TRADING STAMPS. See Federal Trade
Commission; Procedure, 4.
REFUSAL TO ANSWER. See Constitutional Law, II; Contempt.
REGIONAL SUPERMARKET CHAINS. See Antitrust Acts, 4.
REGISTRATION. See Constitutional Law, V, 4.
1232 INDEX
REGULATIONS. See Judicial Review; Selective Service Act,
1; Social Security Act.
REINSURANCE PREMIUMS. See Banks; Taxes, 2.
RELEASE ON BAIL. See Bail.
RELIEF. See Antitrust Acts, 2; Habeas Corpus, 2; Procedure,
6, 8.
RELIGIOUS MATERIALS. See Constitutional Law, VI, 2; Procedure,
7.
REMEDIES. See Habeas Corpus, 2; Procedure, 1, 6.
REMOVAL. See also Jurisdiction, 2.
Trial, on merits-Jurisdiction.-Where after removal case is tried
on merits without objection and federal court enters judgment, issue
on appeal is not whether case was properly removed, but whether
District Court would have had original jurisdiction if case had been
filed in that court. Here there was diversity jurisdiction in District
Court if action had been brought there originally. Grubbs v. General
Electric Credit Corp., p. 699.
RENT. See Constitutional Law, III, 4; V, 2-3.
REPLACEMENT PARTS. See Antitrust Acts, 3.
RESELLING AT WHOLESALE. See Antitrust Acts, 4.
RESIDENCE. See Constitutional Law, V, 4.
RESTRAINT OF TRADE. See Antitrust Acts, 4.
RETALIATORY DISCHARGES. See National Labor Relations
Act.
RETROACTIVITY. See Constitutional Law, VII, 2; Procedure,
3.
REVIEW. See Judicial Review; Selective Service Act, 1-2.
RIGHT TO COUNSEL. See Constitutional Law, VII, 2; Evidence;
Habeas Corpus, 1; Procedure, 3.
RIGHT TO TRAVEL. See Constitutional Law, V, 4.
RULE OF REASON. See Antitrust Acts, 4.
SALES COMMISSIONS. See Banks; Taxes, 2.
SCHEDULED AIRLINERS. See Airports; Constitutional Law, I.
SECURITY RENT DEPOSIT. See Constitutional Law, III, 4;
v, 2-3.
SELECTION OF JURORS. See Constitutional Law, V, 5-6 ;
Juries.
INDEX 1233
SELECTIVE SERVICE ACT, See also Judicial Review,
I. Appeal procedures-Pre-induction judicial review.---Section 10
(b) (3) of the Military Selective Service Act of 1967 forecloses preinduction
judicial review where the board has used its discretion and
judgment in determining facts and arriving at classification for
registrant. In such case registrant's judicial review is confined to
situations where he asserts defense to criminal prosecution or where,
after induction, he seeks writ of habeas corpus. Fein v. Selective
Service System, p. 365.
2. Intervening statutory change-Induction.-Petitioner's imm4:'-<liate
induction is not assured, despite forf'closure of pre-induction
judicial review, in light of intervening statutory change, the new
regulations thereunder, and a change in the Government's position,
albeit in post-induction case, to concede that some statement of reasons
is necessary for "meaningful" review of administrative decision
when registrant's claim has met statutory criteria or has placed him
prima facie within statutory exemption. Fein v. Selective Service
System, p. 365.
SELECTIVE SERVICE APPEALS. See Judicial Review; Selective
Service Act, 1-2.
SELF-INCRIMINATION. See Constitutional Law, II; III, 6:
Contempt.
SENATORIAL ELECTIONS. See Constitutional Law, IV; Elections,
l; Injunctions, I; Mootness.
SEQUOIA NATIONAL FOREST. See Administrative Procedure
Act; Standing, 1.
SERVICE CHARGES. See Airports; Constitutional Law, I.
SERVICEMEN. See Judicial Review; Habeas Corpus, 2; Procedure,
6.
SEX DEVIATE FACILITY. See Habeas Corpus, 3; Procedure, 5.
SEX DISCRIMINATION. See Constitutional Law, V, 5-6 ; Juries.
SEXUAL FRANKNESS. See Obscenity.
SHARES OF STOCK. See Farm Credit Act; Taxes, 3.
SHERMAN ACT. See Antitrust Acts, 1, 4.
S&H GREEN STAMPS. See Federal Trade Commission; Procedure,
4.
SIGNIFICANT MOTIVATION. See Taxes, 1.
SINGLE-MEMBER DISTRICTS. See Stay.
1234 INDEX
SIXTH AMENDMENT. See Constitutional Law, VII, 1-2; Procedure,
2-3.
SKIING DEVELOPMENT. See Administrative Procedure Act;
Standing, 1.
SOCIAL SECURITY ACT. See also Procedure, 1.
Disability benefits-Suspension of payments-Notice.-In light of
adoption of new regulations providing that recipient of disability
benefits pursuant to § 225 of the Act be given notice of proposed
suspension of payments and the reasons therefor, plus an opportunity
to submit rebuttal evidence, judgment is vacated to permit
reprocessing under the new regulations. Richardson v. Wright, p.
208.
SPARK PLUGS. See Antitrust Acts, 3.
SPECIAL INTEREST GROUPS. See Administrative Procedure
Act; Standing, 1.
STAMP EXCHANGES. See Federal Trade Commission; Procedure,
4.
STANDING. See also Administrative Procedure Act; Constitutional
Law, V, 1.
1. Administrative Procedure Act-Judicial review-Membership
corporation.-Person has standing to seek judicial review under the
Act only if he can show that he himself has suffered or will suffer
injury, whether economic or otherwise. Here, where petitioner
asserted no individualized harm to itself or its members, it lacked
standing to maintain the action. Sierra Club v. Morton, p. 727.
2. Distribution of contraceptives-Unmarried persons-Heal,th
measure.-If Massachusetts statute under which appellee was convicted
is not a health measure, appellee may not be prevented, because
he was not an authorized distributor, from attacking statute
in its alleged discriminatory application to potential distributees.
Appellee, furthermore, has standing to assert rights of nnmii.rried
persons denied access to contraceptives because their ability to obtain
them will be materially impaired by enforcement of the statute,
Eisenstadt v. Baird, p. 438.
STATE OOVRTS. See Contempt; Injunctions, 1-2.
STATE EMPLOYEES. See Constitutional Law, III, 5; Loyalty
Oaths.
STATEMENTS. See National Labor Relations Act.
STATISTICS. See Constitutional Law, V, 5-6; Juries.
STATUS QUO ANTE. See Antitrust Acta, 2.
INDEX 1235
STATUTES. See Constitutional Law, III, 2, 4-5; VI, 1; Obscenity;
Standing, 2.
STATUTORY CHANGE. See Judicial Review; Selective Service
Act, 1-2.
STAYS.
Texas legislative reapportionment-Multi-member districts-Irreparable
harm.-Application for stay of three-judge court's judgment
in Texas legislative reapportionment case, effecting elimination of
multi-member districts in Dallas and Bexar counties, is denied, as
applicants did not sustain burden of showing that decision was erroneous
and that implementation of judgment pending appeal will
lead to irreparable harm. Graves v. Barnes (POWELL, J., in chambers),
p. 1201.
STOCK. See Farm Credit Act; Taxes, 3.
STOCKHOLDER-LICENSEES. See Antitrust Acts, 4.
STOCKHOLDERS. See Taxes, 1.
STROLLING AROUND. See Vagrancy, 1.
SUBSTANDARD HOUSING. See Constitutional Law, III, 4.
SUBSTANTIAL FEDERAL QUESTION. See Procedure, 1.
SUMMARY GARNISHMENT. See Garnishment; Injunctions, 1;
Jurisdiction, 1.
SUMMARY JUDGMENT. See Procedure, 1.
SUPERMARKETS. See Antitrust Acts, 4.
SUPREME COURT.
1. Assignment of Mr. Justice Clark (retired) to United States
Court of Appeals for the Seventh Circuit, p. 1049.
2. Assignment of Mr. Justice Clark (retired) to United States
Court of Customs and Patent Appeals, p. 999.
3. Assignment of Mr. Justice Clark (retired) to United States
District Court for the Southern District of Texas, p. 1034.
4. Appointment of Clerk, p. 970.
SUSPENSION OF PAYMENTS. See Social Security Act.
TAXES. See also Banks; Farm Credit Act.
1. Business bad debts- Indemnification of bonding company-
Stockholder and employee.-In determining whether a bad debt has
a "proximate" relation to taxpayer's trade or business and thus
qualifies as a business bad debt, the proper sta.ndard is that of
rlominRnt motivation rather than significant motivation. There is
nothing in this record that would support jury verdict in taxpayer's
1236 INDEX
TAXES-Continued.
favor had the dominant motivation standard been embodied in the
instructions. United States v. Generes, p. 93.
2. Income taxes-Controlled corporations-Reinsurance premium
income.-Since the national banks did not receive and were prohibited
by law from receiving sales commissions, no part of reinsurance
premium income could be attributable to them, and the
Commissioner's exercise of 26 U. S. C. § 482 authority to allocate
income of controlled corporations was not warranted. Commissioner
v. First Security Bank of Utah, p. 394.
3. Required purchase of stock in Banks for Cooperatives-Capital,
assets.-Purchase of Class C stock of Banks for Cooperatives, required
of a borrower by the Farm Credit Act, was acquisition of capital
asset having a long-term value, and cost was not an amount "contracted
to pay for the use of the borrowed money," and thus was not
deductible as interest. United States v. Mississippi Chemical Corp.,
p. 298.
TAX REFUNDS. See Taxes, 1.
TENANTS. See Constitutional Law, III, 4; V, 2-3.
TENNESSEE. See Constitutional Law, V, 4.
TERMINATION OF BENEFITS. See Social Security Act.
TERRITORIAL LICENSES. See Antitrust Acts, 4.
TESTIMONY. See Constitutional Law, II; III, 6; VII, 1.
TEXAS. See Constitutional Law, V, 7; Elections, 2; Jurisdiction,
2; Procedure, 7; Removal; Stay,
TRADEMARKED ITEMS. See Antitrust Acts, 4.
TRADE NAMES. See Antitrust Acts, 2.
TRADING STAMPS. See Federal Trade Commission; Procedure,
4.
TRAVEL. See Airports; Constitutional Law, I; V, 4.
TREASURY REGULATIONS. See Banks; Taxes, 2.
TREATMENT OF SEX OFFENDERS. See Habeas Corpus, 3;
Procedure, 5.
TRIALS. See Constitutional Law, III, 3-4, 6; VI, 1; VII, 1;
Removal.
UNCONSTITUTIONAL ON ITS FACE. See Appeals; Confession
of Judgment, 2; Constitutional Law, III, 2.
INDEX 1237
UNFAIR LABOR PRACTICES. See National Labor Relations
Act.
UNFAIR METHODS OF COMPETITION. See Federal Trade
Commission; Procedure, 4.
UNION ACTIVITY. See National Labor Relations Act.
UNITED STATES ATTORNEYS. See Constitutional Law, III, 6.
UNMARRIED PERSONS. See Constitutional Law, III, 7; Procedure,
1; Standing, 2.
UNWED FATHERS. See Constitutional Law, III, 7.
UPHOLD AND DEFEND THE CONSTITUTION. See Constitutional
Law, III, 5; Loyalty Oaths.
USE CHARGES. See Airports; Constitutional Law, I.
VAGINAL FOAM. See Constitutional Law, V, 1; Standing, 2.
VAGRANCY. See also Constitutional Law, III, 3.
1. Florida vagrancy statute-"Wandering or strolling around"-
Vagueness.-Pet.itioners' convictions for violations of Florida vagrancy
statute for "wandering or strolling around from place to place
without any lawful purpose or object" are vacated and case remanded
for reconsideration in light of Papachristou v. City of Jacksonville,
ante, p. 156. Smith v. Florida, p. 172.
2. Jacksonville, Florida, ordinance-Void for vagueness.-The ordinance
is void for vagueness, in that it "fails to give a person of
ordinary inteJligence fair notice tha.t his contemplated conduct is
forbidden by the statute," it encourages arbitrary and erratic arrests
and convictions, it makes criminal activities which by modern standards
are normally innocent, and it places almost unfettered discretion
in the hands of the police. Papachristou v. City of Jacksonville,
p, 156.
VAGUENESS. See Constitutional Law, III, 3, 5; VI, 1; Obscenity;
Vagrancy, 1-2.
VOID FOR VAGUENESS. See Constitutional Law, III, 5; Vagrancy,
2.
VOTING. See Constitutional Law, IV; V, 4.
WAIVER OF COUNSEL. See Habeas Corpus, 1.
WAIVER OF NOTICE AND HEARING. See Appeals; Confession
of Judgment, 1-2; Constitutional Law, III, 1-2.
WAIVERS. See Habeas Corpus, 1, 3; Procedure, 5.
1238 INDEX
WANDERING. See Vagrancy, 1-2.
WARDS OF STATE. See Constitutional Law, III, 7.
WASHINGTON. See Obscenity.
WELFARE REGULATIONS. See Procedure, 1; Social Security
Act.
WHEELER-LEA ACT OF 1938. See Federal Trade Commission;
Procedure, 4.
WHOLESALING. See Antitrust Acts, 4.
WISCONSIN MENTAL HEALTH ACT. See Habeas Corpus, 3;
Procedure, 5.
WITNESSES. See Constitutional Law, II; III, 6; Procedure, 2.
WOMEN. See Constitutional Law, V, 5-6; Juries.
WORK TIME. See Fair Labor Standards Act.
I