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402 U.S. 479
91 S.Ct. 1565
29 L.Ed.2d 47
Vincent Francis McGEE, Jr., Petitioner,v.UNITED STATES.
No. 362.
Argued Feb. 23, 1971.
Decided May 17, 1971.
Syllabus
Petitioner applied in 1966 for conscientious objector status to his local Selective Service board, which advised him that his claim would be passed on when his student deferment expired. His board was told in 1967 that petitioner had been accepted for a graduate program where, in petitioner's own view, he would 'probably qualify' for a theological exemption. However, no request for ministerial student status was made, nor was pertinent supporting information presented. Petitioner refused to fill out a current information questionnaire sent to him on his graduation from college, announcing that he would not cooperate with the Selective Service System. Following the local board's subsequent reclassification of petitioner I—A, he did not seek a personal appearance before the board or appeal board review. Petitioner thereafter refused to submit to induction, for which, along with other draft law violations, he was prosecuted and convicted. The Court of Appeals, rejecting petitioner's defense that the local board had erred in its classification, affirmed. Held: Petitioner's failure to exhaust his administrative remedies jeopardized the interest of the Selective Service System, as the administrative agency responsible for classifying registrants, in developing the facts and using its expertise to assess his claims to exempt status and thus bars petitioner's defense that he was erroneously classified. McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194, factually distinguished. Pp. 483—491.
426 F.2d 691, affirmed.
Alan H. Levine, New York City, for petitioner.
William Bradford Reynolds for respondent, pro hac vice, by special leave of Court.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Petitioner was convicted of failing to submit to induction and other violations of the draft laws. His principal defense involves the contention that he had been incorrectly classified by his local Selective Service board. The Court of Appeals ruled that this defense was barred because petitioner had failed to pursue and exhaust his administrative remedies. We granted certiorari. 400 U.S. 864, 91 S.Ct. 101, 27 L.Ed.2d 103 (1970), to consider the applicability of the 'exhaustion of administrative remedies' doctrine in the circumstances of this case.
2
* In February 1966, while attending the University of Rochester, petitioner applied to his local Selective Service board for conscientious objector status. In support of his claim to that exemption he submitted the special form for conscientious objectors (SSS Form 150), setting forth his views concerning participation in war.1 The board continued petitioner's existing classification—student deferment—and advised him that the conscientious objector claim would be passed upon when student status no longer applied.
3
In April 1967 petitioner wrote to President Johnson, Johnson, enclosing the charred remnants of his draft cards and declaring his conviction that he must 'sever every link with violence and war.' The letter included a statement that petitioner had 'already been accepted for graduate study in a program where I would probably qualify for the theological deferment.' A copy of the letter was forwarded to the local board; the board continued petitioner's student deferment. Petitioner graduated in June 1967, and thereafter the board sent him a current information questionnaire (SSS Form 127), which asked inter alia for specific information concerning his future educational plans and generally for any information he thought should be called to the board's attention. Petitioner returned the questionnaire unanswered and announced in a cover letter that henceforth he would adhere to a policy of non-cooperation with the Selective Service System.
4
In September 1967 the board reviewed petitioner's file, rejected the pending conscientious objector claim,2 and reclassified petitioner I—A. In response to his reclassification petitioner sought neither a personal appearance before the local board nor review by the appeal board. Indeed, pursuant to his policy of noncooperation, he returned to the board, unopened, the communication notifying him of the reclassification and of his right to appear before the local board, to confer with the Government appeal agent, and to appeal. Petitioner did not appear for a physical examination ordered to take place in October 1967. He did respond to an order to appear for induction in January 1968, and he took a physical examination at that time. However, he refused to submit to induction.
5
Petitioner was prosecuted, under § 12(a) of the Military Selective Service Act of 1967, 62 Stat. 622, as amended, 50 U.S.C. App. § 462(a) (1964 ed., Supp. V) and applicable Selective Service regulations,3 for failing to submit to induction (count I), failing to report for a pre-induction physical examination (count II), failing to keep possession of a valid classification notice (count III), and failing to submit requested information relevant to his draft status (count IV). Petitioner was convicted on all four counts and sentenced to two years' imprisonment on each count, the sentences to run concurrently. Petitioner's principal defense to liability for refusing induction4 was that the local board had erred in classifying him I—A.5 The Court of Appeals, with one judge dissenting, held that the defense of incorrect classification was barred because petitioner had failed to exhaust the administrative remedies available for correction of such an error. The conviction was affirmed by the Court of Appeals.
II
6
Two Terms ago, in McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), the Court surveyed the place of the exhaustion doctrine in Selective Service cases, and the policies that underpin the doctrine. As it has evolved since Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944), and Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946), the doctrine when properly invoked operates to restrict judicial scrutiny of administrative action having to do with the classification of a registrant, in the case of a registrant who has failed to pursue normal administrative remedies and thus has side-stepped a corrective process which might have cured or rendered moot the very defect later complained of in court. Cf. Oestereich v. Selective Service System Local Board, 393 U.S. 233, 235—236, n. 5, 89 S.Ct. 414, 415—416, 21 L.Ed.2d 402 (1968); Gibson v. United States, 329 U.S. 338, 349—350, 67 S.Ct. 301, 306—307, 91 L.Ed. 331 (1946). McKart stands for the proposition that the doctrine is not to be applied inflexibly in all situations, but that decision also plainly contemplates situations where a litigant's claims will lose vitality because the litigant has failed to contest his rights in an administrative forum. The result in a criminal context is no doubt a substantial detriment to the defendant whose claims are barred. Still this unhappy result may be justified in particular circumstances by considerations relating to the integrity of the Selective Service classification process and the limited role of the courts in deciding the proper classification of draft registrants.6
7
* After McKart the task for the courts, in deciding the applicability of the exhaustion doctrine to the circumstances of a particular case, is to ask 'whether allowing all similarly situated registrants to bypass (the administrative avenue in question) would seriously impair the Selective Service System's ability to perform its functions.' 395 U.S., at 197, 89 S.Ct., at 1665. McKart specified the salient interests that may be jeopardized by a registrant's failure to pursue administrative remedies. Certain failures to exhaust may deny the administrative system important opportunities 'to make a factual record' for purposes of classification, or 'to exercise its discretion or apply its expertise' in the course of decisionmaking. Id., at 194, 89 S.Ct., at 1663. There may be a danger that relaxation of exhaustion requirements, in certain circumstances, would induce 'frequent and deliberate flouting of administrative processes,' thereby undermining the scheme of decisionmaking that Congress has created. Id., at 195, 89 S.Ct., at 1663. And of course, a strict exhaustion requirement tends to ensure that the agency have additional opportunities 'to discover and correct its own errors,' and thus may help to obviate all occasion for judicial review. Ibid.
8
To be weighed against the interests in exhaustion is the harsh impact of the doctrine when it is invoked to bar any judicial review of a registrant's claims. Surely an insubstantial procedural default by a registrant should not shield an invalid order from judicial correction, simply because the interest in time-saving self-correction by the agency is involved. That single interest is conceivably slighted by any failure to exhaust, however innocuous the bypass in other respects, and McKart recognizes that the exhaustion requirement is not to be applied 'blindly in every case.' Id., at 201, 89 S.Ct., at 1666. McKart also acknowledges that the fear of 'frequent and deliberate flouting' can easily be overblown, since in the normal case a registrant would be 'foolhardy' indeed to withhold a valid claim from administrative scrutiny. Id., at 200, 89 S.Ct., at 1666. Thus the contention that the rigors of the exhaustion doctrine should be relaxed is not to be met by mechanical recitation of the broad interests usually served by the doctrine but rather should be assessed in light of a discrete analysis of the particular default in question, to see whether there is 'a governmental interest compelling enough' to justify the forfeiting of judicial review. Id., at 197, 89 S.Ct., at 1665.
9
In the McKart case, the focal interest for purposes of analysis was the interest in allowing the agency 'to make a factual record, or to exercise its discretion or apply its expertise.' There the registrant had failed to take an administrative appeal from the local board's denial of 'sole surviving son' status. Later the issue of McKart's entitlement to that exempt status arose in a criminal context, and the Court held that the claim should be heard as a defense to liability despite the failure to exhaust. The validity of the claim was a question 'solely * * * of statutory interpretation.' Id., at 197—198, 89 S.Ct., at 1665. McKart's failure to exhaust did not inhibit the making of an administrative record—all the relevant facts had been presented. Id., at 198 n. 15, 89 S.Ct., at 1665. The issue was not one of fact and thus its resolution would not have been aided by the exercise of special administrative expertise; and proper interpretation of the statutory provision in question was not a matter for agency discretion.
10
In the present case the same interest is pivotal—but here it is apparent that McGee's failure to exhaust did jeopardize the interest in full administrative fact gathering and utilization of agency expertise, rather than the contrary. Unlike the dispute about statutory interpretation involved in McKart, McGee's claims to exempt status—as a ministerial student or a conscientious objector—depended on the application of expertise by administrative bodies in resolving underlying issues of fact. Factfinding for purposes of Selective Service classification is committed primarily to the administrative process, with very limited judicial review to ascertain whether there is a 'basis in fact' for the administrative determination. See 50 U.S.C. App. § 460(b)(3) (1964 ed., Supp. V); Estep v. United States, 327 U.S., at 122—123, 66 S.Ct., at 427—428; cf. Witmer v. United States, 348 U.S. 375, 380—381, 75 S.Ct. 392, 395—396, 99 L.Ed. 428 (1955). McKart expressly noted that as to classification claims turning on the resolution of particularistic fact questions, 'the Selective Service System and the courts may have a stronger interest in having the question decided in the first instance by the local board and then by the appeal board, which considers the question anew.' 395 U.S., at 198 n. 16, 89 S.Ct., at 1665. See id., at 200 201, 89 S.Ct., at 1666—1667. This 'stronger interest,' in the circumstances of the present case, has become compelling and fully sufficient to justify invocation of the exhaustion doctrine.
B
11
Petitioner argues that denial of exemption as a ministerial student was erroneous, but he had never requested that classification nor had he submitted information that would have been pertinent to such a claim. In regard to his entitlement to this exempt status, McGee made no effort to invoke administrative processes for factfinding, classification, and review. It is true that vagrant bits of information may have come to the attention of the local board raising a bare possibility that petitioner might qualify as a ministerial student,7 but this hardly changes the picture of a thoroughgoing attempt to sidestep the administrative process and make the first serious case for an exemption later in court.
12
Such a default directly jeopardizes the functional autonomy of the administrative bodies on which Congress has conferred the primary responsibility to decide questions of fact relating to the proper classification of Selective Service registrants.8 See McKart v. United States, 395 U.S. 185, 198 n. 15, 89 S.Ct. 1657, 1665, 23 L.Ed.2d 194 (1969); cf. 32 CFR § 1622.1(c). Here the bypass was deliberate and without excuse, and this is not a case where entitlement to an exemption would be automatically made out, given a minimal showing by the registrant or minimal investigatory effort by the local board.9 The exhaustion requirement is properly imposed where, as here, the claim to exemption depends on careful factual analysis and where the registrant has completely sidestepped the administrative process designed to marshal relevant facts and resolve factual issues in the first instance. Cf. Dickinson v. United States, 346 U.S. 389, 395—396, 74 S.Ct. 152, 156—157, 98 L.Ed. 132 (1953).
C
13
Petitioner did claim exemption as a conscientious objector to war. He filled out and returned the special form for conscientious objectors (SSS Form 150), and appended a further statement of beliefs, thereby making out a prima facie case for the exempt status. Since at that time—1966—petitioner held an undergraduate student deferment, the board postponed consideration of the claim to a 'higher' classification. See 32 CFR § 1623.2. In 1967, after petitioner had graduated, the pending conscientious objector claim was reviewed10 and rejected, and petitioner was classified I—A. Petitioner contends that denial of conscientious objector status was erroneous but after the claim was rejected he did not invoke the administrative processes available to correct the error. He did not seek a personal appearance before the local board,11 nor did he take an administrative appeal to contest the denial before the appeal board, which classifies de novo.12
14
That petitioner's failure to exhaust should cut off judicial review of his conscientious objector claim may seem too hard a result, assuming, as the Government admits, that the written information available to the board provided no basis in fact for denial of the exemption, and as the Court of Appeals ruled, that neither did petitioner's conduct in relation to the conscription system or other acts that came into view. See 426 F.2d 691, 697 (CA2 1970); Id., at 700—701 (dissenting opinion). But even assuming the above, petitioner's dual failure to exhaust—his failure either to secure a personal appearance or to take an administrative appeal—implicates decisively the policies served by the exhaustion requirement, especially the purpose of ensuring that the Selective Service System have full opportunity to 'make a factual record' and 'apply its expertise' in relation to a registrant's claims. When a claim to exemption depends ultimately on the careful gathering and analysis of relevant facts, the interest in full airing of the facts within the administrative system is prominent, and as the Court of Appeals noted, the exhaustion requirement 'cannot properly be limited to those persons whose claims would fail in court anyway.' Id., at 699.
15
Conscientious objector claims turn on the resolution of factual questions relating to the nature of a registrant's beliefs concerning war, Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971), the basis of the objection in conscience and religion, Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), and the registrant's sincerity, Witmer v. United States, 348 U.S. 375, 381, 75 S.Ct. 392, 395, 99 L.Ed. 428 (1955). See 50 U.S.C. App. § 456(j) (1964 ed., Supp. V). Petitioner declined to contest the denial of his conscientious objector claim before the local board by securing a personal appearance, and the Selective Service System was thereby deprived of one opportunity to supplement the record of relevant facts. The opportunity would have been restored had petitioner sought review by the appeal board. While the local board apparently was satisfied that classification should be made on the basis of the record it confronted,13 the appeal board, which classifies de novo, might have determined that the record should be supplemented by the local board.14 See 32 CFR § 1626.23. In the circumstances of this case, petitioner's failure to take an administrative appeal not only deprived the appeal board of the opportunity to 'apply its expertise' in factfinding to the record that was available; it also removed an opportunity to supplement a record containing petitioner's own submissions but not containing the results of any specific inquiry into sincerity.
16
The Government contends that unless the exhaustion requirement is imposed to bar judicial review when the failure to exhaust has the present character, registrants istrants would be encouraged to sidestep the administrative processes once a prima facie claim to conscientious objector status is made out by submission of a carefully drafted Form 150. Should the claim be denied at the local board level, the claimant might be tempted to circumvent further fact-gathering processes, and take a chance on showing in court that the only administrative record available contains no basis in fact for denial of the claim. This somewhat extreme situation is indeed presented by the circumstances of the present case, though, of course, there is no reason to question the bona fides of McGee's own supervening policy of noncooperation with the conscription system. It remains that McGee's failure to pursue his administrative remedies was deliberate and without excuse. And it is not fanciful to think that 'frequent and deliberate flouting of administrative processes' might occur if McGee and others similarly situated were allowed to press their claims in court despite a dual failure to exhaust.
III
17
We conclude that petitioner's failure to exhaust administrative remedies bars the defense of erroneous classification,15 and therefore the judgment below is affirmed.
18
Affirmed.
19
Mr. Justice DOUGLAS, dissenting.
20
This is a case where so far every judge has agreed that McGee is a conscientious objector. He expressed his belief 'in a personal Supreme Being to whom obligation is superior when duties of human relations are considered'; he said that 'taking part in any form of military operation indicates an approval/consent situation repugnant * * * to love and service of God and fellowman.' The majority of the Court of Appeals concluded that '(n)either his prior nor his subsequent actions were inconsistent with his assertions * * * and we see nothing in McGee's file—all that was before the board—that could reasonably put his sincerity in issue.' 426 F.2d 691, 697. Judge Feinberg in dissent agreed. Id., at 703.
21
Petitioner was a Roman Catholic studying at the Union Theological Seminary in New York City, preparing for the ministry. His sincerity and dedication to his moral cause are not questioned.
22
The critical issue in the case is whether the Selective Service Board in 1966 did 'consider' and reject the claim of the registrant that he was a conscientious objector. The District Court and a majority of the Court of Appeals held that the board did pass on the claim. And this Court now refuses to pass on the registrant's claim to the contrary, because, it says, that finding is not 'clearly erroneous.' That the finding is clearly erroneous seems apparent to one who reads the entire record.
23
The advice which the registrant received in a letter from the board, dated March 23, 1966, was as follows: 'We wish to advise that your claim as conscientious objector will be considered when you no longer qualify for student classification.' That letter states that decision on the 'claim as conscientious objector' will be passed on later. The inference is clear—that it was not then considered and decided.
24
The Chairman of the board testified that the conscientious objector claim was not considered, 'because the young man was attending college and in my judgment he rated a 2S qualification which we proceeded to give him.' He later testified that in February 1966 he, the Chairman of the board, felt 'that there weren't sufficient facts in that to motivate me to grant the registrant the request he sought.' Yet even that ambiguous statement is a far cry from concluding that the board rejected his claim to status as a conscientious objector. Indeed, it was the duty of the board under the Regulations to classify the registrant 'in the lowest class for which he is determined to be eligible.' 32 CFR § 1623.2. And it is clear that the student classification of II—S is lower than the classification of a conscientious objector, I—O. In 1966 the board therefore had no occasion to pass on the conscientious objector claim.
25
As respects the reclassification of registrant in 1967 the Chairman of the board testified: '* * * I recall that subsequently the young man finished his college or left college, I don't recall, and did not further merit a 2S deferment at which time, sir, based on nothing further in his file other than what we had already had in the file, we gave him a 1A classification. In doing that, sir, we again reviewed what appeared in the file.' And the Chairman also testified: 'He was no longer in school and we had no alternative but to classify him 1A.'
26
But it is clear from the Chairman's own testimony that the classification of I—A granted in 1967 was based upon the supposition that the board had denied the conscientious objector claim in 1966, for the Chairman stated:
27
'Based on our previous determination that his request for conscientious objection status was denied, we had no alternative at that time but to give him a 1A, which we did.
28
'Q. You didn't consider the conscientious objector claim again because it had been denied previously?
29
'A. Yes—'
30
And yet, as the Chairman also testified, the board made no decision in 1966:
Mr. Lande (board Chairman):
31
'When Mr. McGee's return application came in asking for his deferment on the grounds of conscientious objector, sir, that was reviewed by me and read and carefully considered, as I consider all requests. As I stated before, it was my considered judgment upon concluding the reading of it and my consideration that he did not rate the deferment.
32
'Q. Mr. Lande, am I correct in understanding that the decision with respect to this conscientious objector application was made, then, by you and not by the entire board?
33
'The Court: Are you talking now about the original receipt of the application?
34
'Mr. Meyer (counsel for petitioner): Yes, your Honor.
35
'The Court: Or when they were told or learned that he no longer was in college?
36
'Mr. Meyer: The original receipt.
37
'The Court: He said, as I recall it, that that was his decision.'
38
It is, with all due respect, I think, a clear miscarriage of justice to allow a man to be sent off to prison where there are at best only dubious grounds for saying that the board discharged its statutory duty of considering and passing upon the conscientious objector claim.
39
The question might not loom as important as it seems to be in this case if the claim itself were a transparent one. But there is nothing on the face of the claim or in the record to detract from it. The man was a theological student studying for the priesthood, and to send him off to prison on this record is either to sanction a form of administrative trickery or to allow the Selective Service board to act quite irresponsibly.
40
If there were a 'lawless' act in this case, it was committed by the Selective Service Board.
41
It was the board that defaulted, not McGee. Its duty under the Regulations was to 'receive and consider all information, pertinent to the classification of a registrant, presented to it.' 32 CFR § 1622.1(c) (italics added). The board did not 'consider' the claim. Since the board did not 'consider' the claim and reject it, but deferred decision on it in 1966 and then in 1967 said that the 1966 deferment was a decision on the merits, there was no way in which McGee could have made a timely appeal to the board.
42
This case, on the facts, is a much stronger one for dispensing with the need to exhaust administrative remedies than was McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194. In McKart the registrant failed to appeal his classification of I—A where he had enjoyed a IV—A classification (sole surviving son status) until his mother died. Then the board put him in I—A on the ground that the 'family unit' had ceased to exist. We excused exhaustion of remedies on the ground that only a question of law was involved. We rationalized the result as follows:
43
'In short, we simply do not think that the exhaustion doctrine contributes significantly to the fairly low number of registrants who decide to subject themselves to criminal prosecution for failure to submit to induction. Accordingly, in the present case, where there appears no significant interest to be served in having the System decide the issue before it reaches the courts, we do not believe that petitioner's failure to appeal his classification should foreclose all judicial review.' Id., at 200, 89 S.Ct., at 1666.
44
By like reasoning, we should conclude that cases where the local board does not 'consider' the conscientious objector claim must be few and far between. Moreover, the term 'consider' is a key part of a Regulation and just as much a question of law as the phrase in issue in McKart. Men should not go to prison because boards are either derelict or vindictive.
45
I would reverse this judgment of conviction.
1
In this connection he noted that he intended 'to continue on to actual ordained Priesthood.' After registering for the draft in 1961, petitioner had informed the local board that he was then a student at a Catholic seminary, preparing for the ministry under the direction of the Roman Catholic Church. Subsequently he left the seminary and later enrolled at the University of Rochester, a secular university.
2
See n. 10, infra.
3
See 32 CFR § 1632.14; 32 CFR § 1628.16; 32 CFR § 1623.5; 32 CFR § 1641.7(b).
4
In the Court of Appeals, as here, petitioner argued that the defense of erroneous classification would, if valid, defeat criminal liability for acts charged under counts II and III, as well as count I.
5
Petitioner contended, as he does in this Court, that the board erroneously failed to pass on the merits of his conscientious objector claim when reclassifying him in September 1967, that at any rate the board erred in denying conscientious objector status, and also that the board erred in failing to grant him a ministerial student exemption. Petitioner had matriculated at Union Theological Seminary in September 1967, after being reclassified I—A. He had never, however, requested that he be classified as exempt from the draft as a ministerial student. See infra, at 486—488.
6
Certainly it is late in the day to launch a broadside against the whole scheme of the exhaustion doctrine in Selective Service cases, as petitioner attempts, on the ground that a doctrine of the same name operates in some other legal context simply to inhibit premature access to the courts on the part of a litigant seeking affirmatively to challenge agency action. Cf. McKart v. United States, 395 U.S. 185, 193—195, 89 S.Ct. 1657, 1662—1663, 23 L.Ed.2d 194 (1969). Nor is it tenable to say that the doctrine is inappropriate when fashioned by judicial decision rather than specific congressional command. See id., at 193—194, 197, 89 S.Ct., at 1662—1663, 1664; id., at 206, 89 S.Ct., at 1669 (White, J., concurring in result). The whole rationale of the exhaustion doctrine in the present context lies in purposes intimately related to the autonomy and proper functioning of the particular administrative system Congress has constructed. See generally Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 1771, 26 L.Ed.2d 362 (1970); Witmer v. United States, 348 U.S. 375, 380—381, 75 S.Ct. 392, 395—396, 99 L.Ed. 428 (1955).
7
Petitioner's letter to President Johnson, a copy of which was transmitted to the board, declared that petitioner's future graduate studies in his own view 'would probably qualify' him for the ministerial student exemption. This is the sole communication from petitioner that actually reached the board, however circuitously, and contained a hint of petitioner's projected studies at the Union Theological Seminary, though the letter did not say where petitioner intended to study and it gave no information whatever on other matters critical to ministerial student status. See n. 9, infra. Petitioner's reliance on information communicated by him, not to the local board, but to certain FBI agents and to an assistant United States attorney, is even more farfetched.
8
Local Board Memorandum No. 56 (August 18, 1954) prescribed that '(t)o substantiate the claim of a registrant that he is a theological student, the local board must require him to furnish' certain relevant evidence. Petitioner contends that this directive places the burden of fact gathering on the board and relieves him of the responsibility to produce unsolicited evidence relevant to a ministerial student claim. However, in petitioner's case there was no 'claim of a registrant' before the board, and at any rate the board's fact-gathering efforts were thwarted by petitioner's refusal to fill out the current information questionnaire (SSS Form 127) sent to him. Thus, we need not consider the relevance of the directive for exhaustion purposes in the case of a registrant who claims ministerial student status but falls short in his initial proofs.
Petitioner's emphasis on the mandatory statutory language relating to exemption of ministerial students, 50 U.S.C.App. § 456(g) (such persons 'shall be exempt'), is also misplaced. This is not a case where, though no definite formal request for exemption is made, entitlement to exemption is clear on information submitted. Indeed, even on the record as developed in the trial court below, much less on the scraps of information available to the Selective Service System, denial of exemption in petitioner's case is not unsupportable. See n. 9, infra.
9
The Military Selective Service Act of 1967, 50 U.S.C.App. § 456(g), provides that 'students preparing for the ministry under the direction of recognized churches or religious organizations, who are satisfactorily pursuing full-time courses of instruction in recognized theological or divinity schools * * * shall be exempt * * *.' See 32 CFR § 1622.43(a). Evidence aired at trial showed that after September 1967 petitioner was engaged in studies at Union Theological Seminary, a nondenominational seminary. There was some evidence that petitioner intended eventually to become a priest, but scant evidence, if any, tending to indicate that petitioner's studies were 'under the direction' of his church. The Court of Appeals determined, in view of the trial record, that 'denial of a (ministerial student) exemption to McGee would have had a 'basis in fact." 426 F.2d 691, 696 (CA2 1970).
10
Though the trial testimony was somewhat ambiguous, the District Judge found specifically that the local board had passed on the merits of petitioner's pending conscientious objector claim in September 1967, before reclassifying petitioner I—A. We do not disturb this finding, which was approved by the Court of Appeals majority below.
11
See 32 CFR §§ 1624.1, 1624.2.
12
See 32 CFR §§ 1626.2, 1626.26.
13
Petitioner's board did not summon him for an interview to inquire into the sincerity of his claim prior to classification, as it might have done. See Local Board Memorandum No. 41, as amended July 30, 1968 (rescinded August 27, 1970).
14
Local boards have wide fact-gathering powers. See 32 CFR §§ 1621.14, 1621.15, and 1625.1(c).
15
This defense figures in petitioner's challenge to his conviction on counts I, II, and III. The two-year sentences on each of the four counts are to run concurrently, and we decline to disturb the conviction on count IV, a minor offense indeed in comparison to the act involved in count I.
| 23
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402 U.S. 415
91 S.Ct. 1575
29 L.Ed.2d 1
ORGANIZATION FOR A BETTER AUSTIN et al., Petitioners,v.Jerome M. KEEFE.
No. 135.
Argued Jan. 20, 1971.
Decided May 17, 1971.
Syllabus
Respondent real estate broker applied for and obtained from the Illinois courts an injunction enjoining petitioners from distributing any literature in the City of Westchester, on the ground that their leaflets, critical of respondent's alleged 'blockbusting' and 'panic peddling' activities in the Austin area of Chicago, invaded respondent's right of privacy, and were coercive and intimidating rather than informative, thus not being entitled to First Amendment protection. Held; Respondent has not met the heavy burden of justifying the imposition of the prior restraint of petitioners' peaceful distribution of informational literature of the nature disclosed by this record. Pp. 418—420.
115 Ill.App.2d 236, 253 N.E.2d 76, reversed.
David C. Long, Chicago, Ill., for petitioners.
Thomas W. McNamara, Chicago, Ill., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted the writ in this case to consider the claim that an order of the Circuit Court of Cook County, Illinois, enjoining petitioners from distributing leaflets anywhere in the town of Westchester, Illinois, violates petitioners' rights under the Federal Constitution.
2
Petitioner Organization for a Better Austin (OBA) is a racially integrated community organization in the Austin neighborhood of Chicago. Respondent is a real estate broker whose office and business activities are in the Austin neighborhood. He resides in Westchester, Illinois, a suburb of Chicago some seven miles from the Austin area.
3
OBA is an organization whose stated purpose is to 'stabilize' the racial ratio in the Austin area. For a number of years the boundary of the Negro segregated area of Chicago has moved progressively west to Austin. OBA, in its efforts to 'stabilize' the area—so it describes its program—has opposed and protested various real estate tactics and activities generally known as 'blockbusting' or 'panic peddling.'
4
It was the contention of OBA that respondent had been one of those who engaged in such tactics, specifically that he aroused the fears of the local white residents that Negroes were coming into the area and then, exploiting the reactions and emotions so aroused, was able to secure listings and sell homes to Negroes. OBA alleged that since 1961 respondent had from time to time actively promoted sales in this manner by means of flyers, phone calls, and personal visits to residents of the area in which his office is located, without regard to whether the persons solicited had expressed any desire to sell their homes. As the 'boundary' marking the furthest westward advance of Negroes moved into the Austin area, respondent is alleged to have moved his office along with it.
5
Community meetings were arranged with respondent to try to persuade him to change his real estate practices. Several other real estate agents were prevailed on to sign an agreement whereby they would not solicit property, by phone, flyer, or visit, in the Austin community. Respondent who has consistently denied that he is engaging in 'panic peddling' or 'blockbusting' refused to sign, contending that it was his right under Illinois law to solicit real estate business as he saw fit.
6
Thereafter, during September and October of 1967, members of petitioner organization distributed leaflets in Westchester describing respondent's activities. There was no evidence of picketing in Westchester. The challenged publications, now enjoined, were critical of respondent's real estate practices in the Austin neighborhood; one of the leaflets set out the business card respondent used to solicit listings, quoted him as saying 'I only sell to Negroes,' cited a Chicago Daily News article describing his real estate activities and accused him of being a 'panic peddler.' Another leaflet, of the same general order, stated that: 'When he signs the agreement, we stop coming to Westchester.' Two of the leaflets requested recipients to call respondent at his home phone number and urge him to sign the 'no solicitation' agreement. On several days leaflets were given to persons in a Westchester shopping center. On two other occasions leaflets were passed out to some parishioners on their way to or from respondent's church in Westchester. Leaflets were also left at the doors of his neighbors. The trial court found that petitioners' 'distribution of leaflets was on all occasions conducted in a peaceful and orderly manner, did not cause any disruption of pedestrian or vehicular traffic, and did not precipitate any fights, disturbances or other breaches of the peace.' One of the officers of OBA testified at trial that he hoped that respondent would be induced to sign the no-solicitation agreement by letting 'his neighbors know what he was doing to us.'
7
Respondent sought an injunction in the Circuit Court of Cook County, Illinois, on December 20, 1967. After an adversary hearing the trial court entered a temporary injunction enjoining petitioners 'from passing out pamphlets, leaflets or literature of any kind, and from picketing, anywhere in the City of Westchester, Illinois.' On appeal to the Appellate Court of Illinois, First District, that court affirmed, 115 Ill.App.2d 236, 253 N.E.2d 76. It sustained the finding of fact that petitioners' activities in Westchester had invaded respondent's right of privacy, had caused irreparable harm, and were without adequate remedy at law. The Appellate Court appears to have viewed the alleged activities as coercive and intimidating, rather than informative and therefore as not entitled to First Amendment protection. The Appellate Court rested its holding on its belief that the public policy of the State of Illinois strongly favored protection of the privacy of home and family from encroachment of the nature of petitioners' activities.1
8
It is elementary, of course, that in a case of this kind the courts do not concern themselves with the truth or validity of the publication. Under Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), the injunction, so far as it imposes prior restraint on speech and publication, constitutes an impermissible restraint on First Amendment rights. Here, as in that case, the injunction operates, not to redress alleged private wrongs, but to suppress, on the basis of previous publications, distribution of literature 'of any kind' in a city of 18,000.
9
This Court has often recognized that the activity of peaceful pamphleteering is a form of communication protected by the First Amendment. E.g., Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938). In sustaining the injunction, however, the Appellate Court was apparently of the view that petitioners' purpose in distributing their literature was not to inform the public, but to 'force' respondent to sign a no-solicitation agreement. The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent's conduct by their activities; this is not fundamentally different from the function of a newspaper. See Schneider v. State, supra; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). Petitioners were engaged openly and vigorously in making the public aware of respondent's real estate practices. Those practices were offensive to them, as the views and practices of petitioners are no doubt offensive to others. But so long as the means are peaceful, the communication need not meet standards of acceptability.
10
Any prior restraint on expression comes to this Court with a 'heavy presumption' against its constitutional validity. Carroll v. President and Commissioners of Prinecess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963). Respondent thus carries a heavy burden of showing justification for the imposition of such a restraint. He has not met that burden. No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court. Designating the conduct as an invasion of privacy, the apparent basis for the injunction here, is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record. Rowan v. United States Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970), relied on by respondent, is not in point; the right of privacy involved in that case is not shown here. Among other important distinctions, respondent is not attempting to stop the flow of information into his own household, but to the public. Accordingly, the injunction issued by the Illinois court must be vacated.
11
Reversed.
12
Mr. Justice HARLAN, dissenting.
13
In deciding this case on the merits, the Court, in my opinion, disregards the express limitation of our appellate jurisdiction to '(f)inal judgments or decrees,' 28 U.S.C. § 1257, and does so in a way which undermines the policies behind limiting our review to judgments 'rendered by the highest court of a State in which a decision could be had,' ibid., and interferes with Illinois' arrangements for the expeditious processing of litigation in its own state courts.
14
It is plain, and admitted by all, that the 'temporary' or 'preliminary' injunction entered by the Circuit Court of Cook County and affirmed by the Appellate Court, First District, is not a final judgment. Review of preliminary injunctions is a classic form of interlocutory appeal, which Congress has authorized in limited instances not including review by this Court of state decrees. See 28 U.S.C. §§ 1252, 1253; cf. 28 U.S.C. § 1292(a)(1). Despite the seemingly absolute provision of the statute, the Court holds that this case is within the judicially created exception for instances in which the affirmance of the interlocutory order by the highest state court decides the merits of the dispute for all practical purposes, leaving the remaining proceedings in the lower courts as nothing more than a formality. See Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 382, 73 S.Ct. 749, 751, 97 L.Ed. 1094 (1953); Construction Laborers' Local 438 v. Curry, 371 U.S. 542, 550—551, 83 S.Ct. 531, 536—537, 9 L.Ed.2d 514 (1963); Mills v. Alabama, 384 U.S. 214, 217—218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484 (1966). The apparent, though unstated, justification for this is the petitioners' representation in this Court that they have no defense to offer other than their First Amendment contentions, which they assert the Illinois courts have decided against them on the merits. Pet. for Cert. 6.
15
Even assuming that the latter position is correct,* this case does not fit into the mold of the cases in which this Court has reviewed orders of state supreme courts affirming the grant of preliminary relief, for here the Illinois Supreme Court has never passed on the merits of petitioners' constitutional contentions. If this case were permitted to return to the trial court for consideration of the merits of petitioners' contentions and the entry of final judgment, petitioners would have an appeal as of right directly to the Illinois Supreme Court if that judgment were adverse to them. Ill.Const., Art. 6, § 5, S.H.A.; Ill.Supp.Ct.Rules 301, 302(a), Ill.Rev.Stat.1969, c. 110A, §§ 301, 302(a). That court would then have an opportunity to correct the errors, if any, in the lower court judgment; or if it failed to do so we would have the benefit of that court's views on the issues here presented. Such review by 'the highest court of a State in which a decision could be had' is particularly important in the context of Illinois procedure, which places primary responsibility for review of constitutional contentions in the State Supreme Court. All appeals from final judgments in cases involving a constitutional question must be taken directly to that court, see Ill.Supp.Ct.Rule 302(a)(2); consequently the intermediate Appellate Court rarely has occasion to engage in constitutional adjudication.
16
To be sure, the Illinois Supreme Court, by denying petitioners' motion for leave to appeal from the order of the Appellate Court, had an opportunity to rule on the issue presented by this case and declined to do so. However, Illinois has a strong policy against Supreme Court review of interlocutory orders. Until recently the Supreme Court had no direct appellate jurisdiction over judgments of the Appellate Court on interlocutory appeals, but simply reviewed the issues presented by the subsequent final judgment. 6 C. Nichols, Illinois Civil Practice § 5998 (1962 rev. vol. H. Williams & M. Wingersky). Although interlocutory review is now available in the discretion of the Supreme Court, it is 'not favored.' Ill.Sup.Ct.Rule 318(b); see also Ill.Sup.Ct.Rule 315(a). We have ourselves often made a similar resolution of the competing interests in prompt correction of lower courts' errors on the one hand and in expeditious processing of litigation to final judgment on the other. See R. Stern & E. Gressman, Supreme Court Practice § 4.19 (4th ed. 1969). Under today's decision, Illinois will have to surrender its judgment in these matters if it desires to interpose the State Supreme Court between the subordinate state courts and review by this Court, as the highest-state-court requirement permits it to do. If this Court would respect the final judgment limitation on our jurisdiction, Illinois would not be put to this choice.
17
It is, of course, tempting to ignore the proper limitations on our power when the alternative is to delay correction of what the Court today holds was a flagrant error by lower courts. This is particularly true where, as here, a 'temporary' injunction has been outstanding for a lengthy period. But the question is not whether we think our intervention in the dispute at this stage would be desirable—although with our overall docket running at about 4,000 cases a Term there is surely much to be said for giving each litigant only one bite at the apple. The policy judgment involved was expressly committed to Congress by Art. III, § 2, of the Constitution, and Congress has spoken in § 1257.
18
I would respect that congressional judgment and dismiss the writ for lack of jurisdiction.
1
The injunction is termed a 'temporary' injunction by the Illinois courts. We have therefore considered whether we may properly decide this case. 28 U.S.C. § 1257. We see nothing in the record that would indicate that the Illinois courts applied a less rigorous standard in issuing and sustaining this injunction than they would with any permanent injunction in the case. Nor is there any indication that the injunction rests on a disputed question of fact that might be resolved differently upon further hearing. Indeed, our reading of the record leads to the conclusion that the issuance of a permanent injunction upon termination of these proceedings will be little more than a formality. Moreover, the temporary injunction here, which has been in effect for over three years, has already had marked impact on petitioners' First Amendment rights. Although the record in this case is not such as to leave the matter entirely free from doubt we conclude we are not without power to decide this case. Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966); Local No. 438 Construction and General Laborers' Union, AFL—CIO v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514 (1963).
*
Settled Illinois law provides that '(i)t is not, of course, the purpose of a temporary injunction to decide controverted facts or the merits of the case,' Lonergan v. Crucible Steel Co. of America, 37 Ill.2d 599, 611, 229 N.E.2d 536, 542 (1967), but 'merely to preserve the last actual peaceable uncontested status which preceded the pending suit.' Consumers Digest, Inc. v. Consumer Magazine, Inc., 92 Ill.App.2d 54, 61, 235 N.E.2d 421, 425 (App.Ct., 1st Dist., 1968). 'It is enough if (the applicant) can show that he raises a fair question as to the existence of the right which he claims and can satisfy the court that matters should be preserved in their present state until such questions can be disposed of.' Nestor Johnson Mfg. Co. v. Goldblatt, 371 Ill. 570, 574, 21 N.E.2d 723, 725 (1939). The granting of a preliminary injunction is committed to the sound discretion of the trial judge, and it is reviewable only for abuse of discretion. Lonergan v. Crucible Steel Co. of America, supra, 37 Ill.2d, at 612, 229 N.E.2d, at 542.
In argument before the Illinois chancellor, petitioners' attorney stated:
'We don't wish to go into lengthy argument on constitutional provisions at this time. We feel that it is only fair that both sides prepare briefs in preparation for a full hearing on the permanent injunction. And, to that end, we just want to point out that these are constitutional questions, on which we feel the law is abundantly clear, and that is a further reason why Your Honor is his discretion, should not see fit to issue a temporary injunction.' R. 56.
| 23
|
402 U.S. 515
91 S.Ct. 1592
29 L.Ed.2d 74
GAINESVILLE UTILITIES DEPARTMENT et al., Petitioners,v.FLORIDA POWER CORPORATION. FEDERAL POWER COMMISSION, Petitioner, v. FLORIDA POWER CORPORATION.
Nos. 464, 469.
Argued Feb. 24, 1971.
Decided May 24, 1971.
Syllabus
Pursuant to § 202(b) of the Federal Power Act, the Federal Power Commission (FPC) is empowered to direct one electric utility to interconnect its electric system with another utility and it 'may prescribe the terms and conditions of the arrangement to be made * * * including the apportionment of the cost between them and the compensation or reimbursement reasonably due to any of them.' After hearings and staff studies the FPC found that an interconnection between Gainesville, a small municipally-owned utility, and respondent, a major investor-owned electric utility, would be in the public interest, would not unduly burden respondent, and would benefit both parties. The FPC ordered the interconnection, requiring Gainesville to pay the entire $3 million cost thereof and to maintain certain generating capacity. In the light of these circumstances the FPC imposed no standby charge on Gainesville. The Court of Appeals denied enforcement of the order, agreeing with respondent's claim that the omission of an annual $150,000 payment to it by petitioner for the backup service provided by the interconnection resulted in a failure to satisfy the statutory mandate of 'reimbursement reasonably due' respondent because respondent would obtain no benefit from the interconnection. Section 313(b) of the Act provides that 'findings of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.' Held: Since there was substantial evidence to support the FPC's findings that benefits will accrue to respondent from the interconnection, the Court of Appeals erred in not deferring to the FPC's expert judgment. Pp. 521—529.
425 F.2d 1196, reversed and remanded.
George Spiegel, Washington, D.C., for petitioner.
Gordon Gooch for petitioner.
Richard W. Emory, Baltimore, Md., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Under the Federal Power Act, an order of the Federal Power Commission that directs one electric utility 'to establish physical connection of its transmission facilities with the facilities of' another utility 'may prescribe the terms and conditions of the arrangement to be made * * * including the apportionment of cost between them and the compensation or reimbursement reasonably due to any of them.' Federal Power Act § 202(b), 49 Stat. 848, 16 U.S.C. § 824a(b).1 The Commission order which directed respondent Florida Power Corp. to interconnect its electric system with that of petitioner Gainesville Utilities Department did not contain a term or condition sought by respondent requiring petitioner to pay an annual standby charge of approximately $150,000 for the emergency or backup service provided by the interconnection, 40 F.P.C. 1227 (1968); 41 F.P.C. 4 (1969). The Court of Appeals for the Fifth Circuit held that, because of the omission of such a term or condition, 'the terms of the interconnection do not adequately satisfy the statutory requirements because they do not provide Florida Power with the 'reimbursement reasonably due' it. * * * Thus we deny enforcement of this order insofar as no provision for the reasonable compensation of Florida Power is made.' 425 F.2d 1196, 1203 (1970) (footnote omitted). We granted the petition for certiorari of Gainesville Utilities Department in No. 464, and of the Federal Power Commission in No. 469, 400 U.S. 877, 91 S.Ct. 118, 27 L.Ed.2d 114 (1970). We reverse the judgment of the Court of Appeals insofar as it denied enforcement of the Commission's order and remand for the entry of a new judgment enforcing the Commission's order in its entirety.
2
* The demand upon an electric utility for electric power fluctuates significantly from hour to hour, day to day, and season to season. For this reason, generating facilities cannot be maintained on the basis of a constant demand. Rather, the utility's generating capability must be geared to the utility's peak load of demand, and also take into account the fact that generating equipment must occasionally be out of service for overhaul, or because of breakdowns. In consequence, the utility builds certain 'reserves' of generating capacity in excess of peak load requirements into its system.2 The practice of a utility that relies completely on its own generating resources (an 'isolated' system in industry jargon) is to maintain equipment capable of producing its peak load requirements plus equipment that produces a 'reserve' capacity equal to the capacity of its largest generating unit.
3
The major importance of an interconnection is that it reduces the need for the 'isolated' utility to build and maintain 'reserve' generating capacity.3 An interconnection is simply a transmission line connecting two utilities. Electric power may move freely through the line up to the line's capacity. Ordinarily, however, the energy generated by each system is sufficient to supply the requirements of the system's customers and no substantial amount of power flows through the interconnection. It is only at the times when one of the connected utilities is unable for some reason to produce sufficient power to meet its customers' needs that the deficiency may be supplied by power that automatically flows through the interconnection from the other utility. To the extent that the utility may rely upon the interconnection to supply this deficiency, the utility is freed of the necessity of constructing and maintaining its own equipment for the purpose.
4
The Gainesville Utilities Department is a municipally owned and operated electric utility serving approximately 17,000 customers in a 22-square-mile area covering the city of Gainesville and adjacent portions of Alachua County, Florida. In 1965, Gainesville's 'isolated' system had a total generating capability of 108.4 megawatts (mw) while its peak load was 51.1 mw. Gainesville's generating capacity in 1965 consisted of five steam electric generating units ranging from five to 50 mw. Thus Gainesville's generating capacity of 108.4 mw gave it a reserve capacity of 57.3 mw over its annual peak load of 51.1 mw—a reserve adequate to cover the shutdown of the system's largest generating unit of 50 mw. Gainesville's peak load was projected to be doubled to 102 mw by 1970. Its 1970 capacity, however, was projected to increase to only 138.4 mw through the addition in 1968 of two 15-mw gas-turbine generators. Thus an interconnection was necessary if Gainesville was to avoid having to make a still greater investment in generating equipment.
5
Florida Power Corporation operates a major electric generation, transmission, and distribution system serving 370,000 retail customers in a 20,600-square-mile system serving 32 counties in central and northwest Florida, including Alachua County. It also supplies power at wholesale to 12 municipal distribution systems and 9 REA cooperatives. In 1966, Florida Power had an aggregate generating capability of 1595 mw and experienced a peak load of 1232 mw. At the time of the hearing before the Commission, Florida Power was building a 525-mw generating unit to begin service in December 1969, and anticipated a 1970 generating capability of 2114 mw and a 1970 peak load of 1826 mw. Thus the anticipated excess of capacity over peak load, 288 mw, is less than the size of its largest generating unit, 525 mw. However, the deficiency is provided for by interconnections which Florida Power has with four other Florida utilities. See n. 3, supra. All five of these utilities constitute the Florida Operating Committee, which, though informal in nature, serves as a medium through which the technical operations of its members are coordinated. As a result of the sharing of reserves made possible by the interconnection of the Committee's members, each utility is able to reduce the reserve generating capacity that would be required if it were electrically isolated. Specifically, each of the Florida Operating Committee members maintains generating capacity equal to 115% of its annual peak load.
6
For several years prior to 1965, Gainesville sought to negotiate an 'interconnection' with Florida Power and with another member of the Florida Operating Committee, Florida Power & Light. When those efforts failed, Gainesville, in 1965, filed an application with the Commission seeking an order under § 202(b) directing Florida Power to interconnect with Gainesville.4
II
7
Section 202(b) authorizes the Federal Power Commission to order a utility to interconnect with another, and to 'prescribe the terms and conditions of the arrangement * * *,' if the Commission 'finds such action necessary or appropriate in the public interest,' and 'if the Commission finds that no undue burden will be placed upon such public utility thereby.' The proviso to the section makes explicit that the Commission has no authority in ordering an interconnection 'to compel the enlargement of generating facilities * * * (or) to compel such public utility to sell or exchange energy when to do so would impair its ability to render adequate service to its customers.' 16 U.S.C. § 824a(b).
8
Following extensive hearings, an examiner made findings that the proposed interconnection would be in the public interest and that it would not place an undue burden on Florida Power. The Commission affirmed the findings and further found that the interconnection would neither compel Florida Power to enlarge its generating facilities nor impair its ability to serve its customers. The Commission ordered the interconnection but on conditions (1) that Gainesville pay the entire $3 million cost of the interconnection, and (2) that Gainesville maintain generating capacity resources at least equal to 115% of its peak load—the requirement imposed by the Florida Operating Committee on all its members. The order also fixed the rates of compensation to be paid for actual energy transfers across the interconnection.
9
Respondent, Florida Power, does not challenge the Commission's order except in its omission of a term or condition that Gainesville pay approximately $150,000 annually as 'compensation or reimbursement reasonably due' respondent for the backup service effected by the interconnection. Respondent contended that this charge, computed on the basis of Gainesville's largest generator, was justified because only Gainesville could gain from the interconnection since the reserve made available to respondent from Gainesville was too small to be of any realistic value to respondent's massive power system. The Commission rejected the contention. It noted that respondent had not included a comparable charge in any of the contracts for interconnection voluntarily negotiated with members of the Florida Operating Committee. The Commission also emphasized that 'the apportionment of cost' factor had been satisfied by requiring Gainesville to bear the full cost of making the interconnection. Primarily, however, the Commission rested its rejection upon two grounds. First, the Commission stated its view that, in applying the statutory provision, the appropriate analysis should focus not upon the respective gains to be realized by the parties from the interconnection but upon the sharing of responsibilities by the interconnected operations:
10
'(T)hat sharing must be based upon, and follow the proportionate burdens each system places upon the interconnected system networks, not the benefits each expects to receive. Benefits received in any given situation may approximate these responsibilities or they may not. In the course of negotiation of voluntary pooling arrangements, benefits received may, on occasion, serve to offset burdens imposed in determining the appropriate charge for particular services rendered or facilities supplied. But where, as here, the cost of providing such services and facilities and the appropriate charges therefor have equitably been determined after a careful analysis and apportionment of the burdens and responsibilities of each party, there is no basis for any further consideration of relative benefits * * *.' 40 F.P.C., at 1237.
11
Second, the Commission found that even if the interconnection were evaluated on the basis of relative benefits, 'this record shows that the proposed intertie will afford both parties opportunities to take advantage of substantial and important benefits: electrical operating benefits, and corporate financial savings.' Id., at 1238. In its original opinion and in its opinion denying rehearing, the Commission specified the benefits that it found Florida Power would gain from the interconnection, as set out in the margin.5 On the basis of these findings, the Commission concluded that no standby charge should be imposed on either party to the interconnection. Thus, under the terms of the Commission's final order, each party pays only for the power actually received from the other, and each party is obligated to deliver power only on an 'as available' basis. 40 F.P.C., at 1236 n. 4, 1245.
12
The Court of Appeals' denial of enforcement of the Commission's order insofar as no provision was made 'for the reasonable compensation of Florida Power' rested on the court's conclusion that the Commission's 'proportionate burden' analysis was 'largely illusory:'
13
'The Commission's policy of proportionate utility responsibility really works only one way. The small system receives high benefits and, because of its size, no real obligations. The large system, however, receives no benefit but does incur real substantial responsibilities. Such imaginary equity is not reasonable compensation.' 425 F.2d, at 1203.
14
The validity of this conclusion, however, depends upon whether the court correctly read the record as showing that Florida Power 'receives no benefit' and that Gainesville incurs 'no real obligations.'6 The Commission's findings are squarely contrary.
15
Although the Commission did argue that the benefits to be derived from the interconnection by each party were irrelevant to the proper decision of the case, nonetheless, in view of respondent's strenuous protest, the Commission went on to bring its expertise and judgment to bear upon the benefits and burdens and made findings identifying several specific benefits that would accrue to Florida Power from the interconnection. See n. 5, supra. Merely because the Commission argued that on its view of the legal question involved, findings of benefits were unnecessary to its decision does not render them any the less findings on the question of benefits. A reviewing court should hardly complain because an agency provides more analysis than it feels is absolutely necessary.7
16
Section 313(b) of the Federal Power Act, 16 U.S.C. § 825l(b), provides that '(t)he finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.' See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Among the specific benefits the Commission found would accrue to Florida Power were increased reliability of Florida Power's service to customers in the Gainesville area, the availability of 60 to 100 mw of reserve capacity during certain periods of the year, and savings from coordinated planning to achieve use at all times of the most efficient generating equipment in both systems. The Commission's findings were aided by specific studies, made by the Commission's staff, and placed in the record. Insofar as the Court of Appeals' opinion implies that there was not substantial evidence to support a finding of some benefits, it is clearly wrong. And insofar as the court's opinion implies that the responsibilities assumed by Gainesville in combination with the benefits found to accrue to Florida Power were insufficient to constitute 'compensation * * * reasonably due,' the Court of Appeals overstepped the role of the judiciary. Congress ordained that that determination should be made in the first instance, by the Commission, and on the record made in this case, the Court of Appeals erred in not deferring to the Commission's expert judgment.
17
Florida Power's emphasis on Gainesville's small size occurs only when discussing Gainesville's ability to provide Florida Power with energy. But Gainesville's small size has relevance in terms of the amount of power it may, even in emergencies, require from Florida Power. What Florida Power chooses to emphasize is that the availability of a certain amount of power flowing from it to Gainesville is relatively more valuable to Gainesville's small system than the availability of the same amount of power flowing from Gainesville to Florida Power. It is certainly true that the same service or commodity may be more valuable to some customers than to others, in terms of the price they are willing to pay for it. An airplane seat may bring greater profit to a passenger flying to California to close a million-dollar business deal than to one flying west for a vacation; as a consequence, the former might be willing to pay more for his seat than the latter. But focus on the willingness or ability of the purchaser to pay for a service is the concern of the monopolist, not of a governmental agency charged both with assuring the industry a fair return and with assuring the public reliable and efficient service, at a reasonable price.
18
Our guidepost here is the Act's explicit commitment of the judgment as to what compensation is reasonably due, in this highly technical field, to the Commission. Cf. Permian Basin Area Rate Cases, 390 U.S. 747, 767, 88 S.Ct. 1344, 1360, 20 L.Ed.2d 312 (1968). In the exercise of this judgment, the Commission's order placed on Gainesville the entire $3 million cost of constructing the interconnection. Thus the benefits that the Commission found that Florida Power will receive from the interconnection will come without any capital investment on its part. In addition, the Commission required Gainesville to maintain generating capacity equal to at least 115% of its annual peak load and to maintain operating reserves in accordance with the procedures established by the Florida Operating Committee. In light of these circumstances, the Commission concluded on the basis of its proportionate-burden analysis that Gainesville should not pay a standby charge for the availability of emergency service, which is provided only on an 'as available' basis. It simply required Gainesville to pay for energy actually received. On this record, we cannot say that the Commission has failed to discharge either its responsibility to assure Florida Power of 'reasonable compensation' or its responsibility to the public to assure reliable efficient electric service.
19
Since we conclude that substantial evidence supports the findings of the Commission that benefits will accrue to Florida Power from the interconnection, we have no occasion to decide whether the Commission in ordering the interconnection of two electric power companies, may properly condition the interconnection when one party receives no benefits, upon compensation terms based on the relative burdens that each places on the interconnected network. Decision of that question must await a case which presents it.
20
Reversed and remanded.
21
Mr. Justice BLACKMUN took no part in the decision of these cases.
1
Section 202(b) of the Federal Power Act, 49 Stat. 848, 16 U.S.C. § 824a(b), provides:
'(b) Whenever the Commission, upon application of any State commission or of any person engaged in the transmission or sale of electric energy, and after notice to each State commission and public utility affected and after opportunity for hearing, finds such action necessary or appropriate in the public interest it may by order direct a public utility (if the Commission finds that no undue burden will be placed upon such public utility thereby) to establish physical connection of its transmission facilities with the facilities of one or more other persons engaged in the transmission or sale of electric energy, to sell energy to or exchange energy with such persons: Provided, That the Commission shall have no authority to compel the enlargement of generating facilities for such purposes, nor to compel such public utility to sell or exchange energy when to do so would impair its ability to render adequate service to its customers. The Commission may prescribe the terms and conditions of the arrangement to be made between the persons affected by any such order, including the apportionment of cost between them and the compensation or reimbursement reasonably due to any of them.'
2
The industry distinguishes between various types of 'reserve' requirements. Since time is required to start up equipment that is not operating, a certain amount of equipment must be maintained in such a state that it can begin generating power immediately. The industry calls these instantaneous or 'spinning' reserves, and they must be available to meet load variations and breakdowns of equipment as they occur. A utility must always maintain 'spinning' reserves equal to the size of the largest generator currently in service producing power, in order to protect against a breakdown of that unit. As 'spinning' reserves are called upon a utility must start up more equipment in order to maintain 'spinning' reserves at an adequate level. These reserves are called 'quick-start' or 'ready' reserves and must be available on short notice—usually 10 minutes or less. Both spinning and quick-start reserves are collectively referred to as 'operating' reserves, in contrast to 'installed' reserves. Installed reserves refers to the remaining generating capacity of a utility, those generators that are not ready to be operated, or in operation. Accordingly, the expense associated with 'reserve' requirements includes both capital expense—building the necessary 'installed' reserve generating capacity—and operating expense running the necessary 'spinning' reserves and maintaining the readiness of 'quick-start' reserves. In general, this opinion will not differentiate between the different reserve requirements.
3
The reason that interconnections lower reserve requirements is well illustrated by a hypothetical discussed in the Commission's brief, at 15—16.
'Assume that four electric systems operate in isolation and that each has an annual peak load of 500 mw served by several generating units the largest of which is 200 mw. At a minimum, each system would have to provide 700 mw of installed generating capacity (500 mw to cover the annual peak load plus 200 mw of installed reserves equal to the largest unit). If we assume further that each system operates its 200 mw unit near capacity throughout the year, spinning reserves equal to the output of that unit would constantly be required. If the four systems are to be interconnected pursuant to the Florida Operating Committee formula, total generating capacity need not exceed 2300 mw (total annual peak load—if all peaks occur during the same period—plus operating reserves of 300 mw, i.e., 1 1/2 times the largest generating unit). This 2300 mw capacity requirement would be met by requiring each system to maintain generating capacity equal to 115 percent of its annual peak load. Each system would thus have to maintain only 575 mw of generating capacity—125 mw less than would be required if operating in isolation. The interconnected system as a whole would require the constant maintenance of 200 mw of spinning reserves and 100 mw of quick-start reserves; each system's pro rata share of operating reserves would amount to only 75 mw. Thus, interconnection of the four systems would result in substantial capital savings by reducing installed generating capacity requirements and substantial operating savings by reducing operating reserve requirements.' (Footnote omitted.)
4
At the same time, Gainesville also filed a complaint with the Commission charging Florida Power with unlawful discrimination under §§ 205 and 206 of the Federal Power Act, 16 U.S.C. §§ 824d, 824e, for failure to agree to an interconnection. The Commission dismissed this complaint as moot when the interconnection was ordered.
5
'For the Company, the interconnection will add an additional energy source to its network in a geographic area where the Company has a substantial load (customer demands), but does not have generating plants of its own. Because of that, the expected benefit to Florida Power may be very substantial since the (Gainesville) governors have a faster rate of response setting than Florida Power's. Also of great importance to Florida Power is the improved system reliability which the Company will gain through the proposed intertie. That is shown in studies submitted by staff from engineering analyses of loss of load probabilities. They establish that the interconnection will have the effect of improving the reliability of Florida Power's system.' 40 F.P.C., at 1238.
'(T)hroughout its application (for rehearing), the Corporation emphasizes the contention that Gainesville will not be able to render any service of significant value to Florida Power. Upon consideration of this argument we find that Florida Power has greatly understimated Gainesville's capacity to be of service to the Corporation. Because of its electrical isolation, Gainesville has maintained a very large reserve capacity in relationship to its peak load. In 1965 its peak load was 51.1 mw, and its reserve capacity was 57.3 mw or 112.1 percent of peak demand. Although the purpose of this interconnection proceeding is to enable Gainesville to lessen its need for self-reliance, Gainesville's reserve capacity will continue to be large even after interconnection. The staff's witness has testified that during the ten year period 1970—1979, Gainesville's average minimum reserves at the time of Florida Power's annual peak hour demand will be 43 percent. According to staff's computations, Gainesville will be able to deliver, if there will be sufficient interconnection transmission facilities, anywhere from 60 mw to 100 mw to Florida Power during certain periods in January, April, and September 1970. This prediction that Gainesville will be able to furnish capacity of this magnitude to Florida Power plainly refutes Florida Power's assertion that the
interconnection will prove to be a one-way street with all the benefits flowing from the Corporation to the City. The Commission is satisfied that the interconnection will permit a reciprocal exchange of benefits to the mutual advantage of both systems.
'Staff's studies of Gainesville's future reserve capacity also serve to refute Florida Power's allegation that there is 'no scintilla of evidence' to support the Commission's finding that Gainesville will become an additional interchange power source on Florida Power's network after the interconnection is consummated. Similarly, staff's studies rebut the Corporation's assertions regarding the insignificance of Gainesville's anticipated capacity contributions.' 41 F.P.C., at 5—6 (opinion denying rehearing).
'Florida Power asserts that the Commission erred in finding that the interconnection will add an additional energy source in an area where Florida (Power) has no generating plant. The Corporation states that it now has three energy sources to supply its load in the Gainesville area and that it does not need a fourth. Florida Power's Form 12 for 1965 shows that the Corporation's Suwanee Plant is the closest generating source to its Gainesville load center. This plant is more than 75 transmission line miles away from this load center. The next closest plant is the Inglis Station which is more than 80 transmission line miles away. Florida Power's three energy sources are connected to the Gainesville load area by 69 kv transmission lines. According to staff, two of these lines serve other loads and could be vulnerable to outages. We agree with staff's position that the connection with Gainesville's generating resources would upgrade service reliability to the Corporation's customers in the Gainesville area.' 41 F.P.C., at 7.
6
Respondent Florida Power concedes that the Commission's proportionate-burden analysis is appropriate when the interconnected systems are approximately equal in size and when the interconnection does benefit both parties to an interconnection. Brief for Florida Power Corp. 21.
7
We, therefore, reject the Court of Appeals' conclusion that, because they were stated in the alternative, these were 'not fact-findings protected by the umbrella of the substantial evidence test.' 425 F.2d, at 1203 n. 20. This is not a case where the Commission did not follow a procedure that it might have followed, see SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943), or failed to make findings or evaluate considerations relevant to its determination, see Schaffer Transportation Co. v. United States, 355 U.S. 83, 78 S.Ct. 173, 2 L.Ed.2d 117 (1957).
| 78
|
402 U.S. 535
91 S.Ct. 1586
29 L.Ed.2d 90
Paul J. BELL, Jr., Petitioner,v.R. H. BURSON, Director, Georgia Department of Public Safety.
No. 5586.
Argued March 23, 1971.
Decided May 24, 1971.
Syllabus
Georgia's Motor Vehicle Safety Responsibility Act, which provides that the motor vehicle registration and driver's license of an uninsured motorist involved in an accident shall be suspended unless he posts security for the amount of damages claimed by an aggrieved party and which excludes any consideration of fault or responsibility for the accident at a pre-suspension hearing held violative of procedural due process. Before Georgia, whose statutory scheme significantly involves the issue of liability, may deprive an individual of his license and registration, it must provide a procedure for determining the question whether there is a reasonable possibility of a judgment being rendered against him as a result of the accident. Pp. 539 543.
121 Ga.App. 418, 174 S.E.2d 235, reversed and remanded.
Elizabeth R. Rindskopf, Atlanta, Ga., for petitioner, pro hac vice, by special leave of Court.
Dorothy T. Beasley, Atlanta, Ga., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Georgia's Motor Vehicle Safety Responsibility Act provides that the motor vehicle registration and driver's license of an uninsured motorist involved in an accident shall be suspended unless he posts security to cover the amount of damages claimed by aggrieved parties in reports of the accident.1 The administrative hearing conducted prior to the suspension excludes consideration of the motorist's fault or liability for the accident. The Georgia Court of Appeals rejected petitioner's contention that the State's statutory scheme, in failing before suspending the licenses to afford him a hearing on the question of his fault or liability, denied him due process in violation of the Fourteenth Amendment: the court held that "Fault' or 'innocence' are completely irrelevant factors.' 121 Ga.App. 418, 420, 174 S.E.2d 235, 236 (1970). The Georgia Supreme Court denied review. App. 27. We granted certiorari. 400 U.S. 963, 91 S.Ct. 376, 27 L.Ed.2d 383 (1970). We reverse.
2
Petitioner is a clergyman whose ministry requires him to travel by car to cover three rural Georgia communities. On Sunday afternoon, November 24, 1968, petitioner was involved in an accident when five-year-old Sherry Capes rode her bicycle into the side of his automobile. The child's parents filed an accident report with the Director of the Georgia Department of Public Safety indicating that their daughter had suffered substantial injuries for which they claimed damages of $5,000. Petitioner was thereafter informed by the Director that unless he was covered by a liability insurance policy in effect at the time of the accident he must file a bond or cash security deposit of $5,000 or present a notarized release from liability, plus proof of future financial responsibility,2 or suffer the suspension of his driver's license and vehicle registration. App. 9. Petitioner requested an administrative hearing before the Director asserting that he was not liable as the accident was unavoidable, and stating also that he would be severely handicapped in the performance of his ministerial duties by a suspension of his licenses. A hearing was scheduled but the Director informed petitioner that '(t)he only evidence that the Department can accept and consider is: (a) was the petitioner or his vehicle involved in the accident; (b) has petitioner complied with the provisions of the Law as provided; or (c) does petitioner come within any of the exceptions of the Law.' App. 11.3 At the administrative hearing the Director rejected petitioner's proffer of evidence on liability, ascertained that petitioner was not within any of the statutory exceptions, and gave petitioner 30 days to comply with the security requirements or suffer suspension. Petitioner then exercised his statutory right to an appeal de novo in the Superior Court. Ga.Code Ann. § 92A—602 (1958). At that hearing, the court permitted petitioner to present his evidence on liability, and, although the claimants were neither parties nor witnesses, found petitioner free from fault. As a result, the Superior Court ordered 'that the petitioner's driver's license not be suspended * * * (until) suit is filed against petitioner for the purpose of recovering damages for the injuries sustained by the child * * *.' App. 15. This order was reversed by the Georgia Court of Appeals in overruling petitioner's constitutional contention.
3
If the statute barred the issuance of licenses to all motorists who did not carry liability insurance or who did not post security, the statute would not, under our cases, violate the Fourteenth Amendment. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933); Continental Baking Co. v. Woodring, 286 U.S. 352, 52 S.Ct. 595, 76 L.Ed. 1155 (1932); Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927). It does not follow, however, that the amendment also permits the Georgia statutory scheme where not all motorists, but rather only motorists involved in accidents, are required to post security under penalty of loss of the licenses. See Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101 (1926). Once licenses are issued, as in petitioner's case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a 'right' or a 'privilege.' Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (disqualification for unemployment compensation); Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956) (discharge from public employment); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958) (denial of a tax exemption); Goldberg v. Kelly, supra (withdrawal of welfare benefits). See also Londoner v. Denver, 210 U.S. 373, 385—386, 28 S.Ct. 708, 713—714, 52 L.Ed. 1103 (1908); Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926); Opp Cotton Mills v. Administrator, 312 U.S. 126, 61 S.Ct. 524, 85 L.Ed. 624 (1941).
4
We turn then to the nature of the procedural due process which must be afforded the licensee on the question of his fault or liability for the accident.4 A procedural rule that may satisfy due process in one context may not necessarily satisfy procedural due process in every case. Thus, procedures adequate to determine a welfare claim may not suffice to try a felony charge. Compare Goldberg v. Kelly, 397 U.S., at 270—271, 90 S.Ct., at 1021—1022, with Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Clearly, however, the inquiry into fault or liability requisite to afford the licensee due process need not take the form of a full adjudication of the question of liability. That adjudication can only be made in litigation between the parties involved in the accident. Since the only purpose of the provisions before us is to obtain security from which to pay any judgments against the licensee resulting from the accident, we hold that procedural due process will be satisfied by an inquiry limited to the determination whether there is a reasonable possibility of judgments in the amounts claimed being rendered against the licensee.
5
The State argues that the licensee's interest in avoiding the suspension of his licenses is outweighed by countervailing governmental interests and therefore that this procedural due process need not be afforded him. We disagree. In cases where there is no reasonable possibility of a judgment being rendered against a licensee, Georgia's interest in protecting a claimant from the possibility of an unrecoverable judgment is not, within the context of the State's fault-oriented scheme, a justification for denying the process due its citizens. Nor is additional expense occasioned by the expanded hearing sufficient to withstand the constitutional requirement. "While the problem of additional expense must be kept in mind, it does not justify denying a hearing meeting the ordinary standards of due process." Goldberg v. Kelly, 397 U.S., at 261, 90 S.Ct., at 1017, quoting Kelly v. Wyman, 294 F.Supp. 893, 901 (SDNY 1968).
6
The main thrust of Georgia's argument is that it need not provide a hearing on liability because fault and liability are irrelevant to the statutory scheme. We may assume that were this so, the prior administrative hearing presently provided by the State would be 'appropriate to the nature of the case.' Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). But '(i)n reviewing state action in this area * * * we look to substance, not to bare form, to determine whether constitutional minimums have been honored.' Willner v. Committee on Character, 373 U.S. 96, 106—107, 83 S.Ct. 1175, 1182, 10 L.Ed.2d 224 (1963) (concurring opinion). And looking to the operation of the State's statutory scheme, it is clear that liability, in the sense of an ultimate judicial determination of responsibility, plays a crucial role in the Safety Responsibility Act. If prior to suspension there is a release from liability executed by the injured party, no suspension is worked by the Act. Ga.Code Ann. § 92A—606 (1958). The same is true if prior to suspension there is an adjudication of nonliability. Ibid. Even after suspension has been declared, a release from liability or an adjudication of non-liability will lift the suspension. Ga.Code Ann. § 92A—607 (Supp. 1970). Moreover, other of the Act's exceptions are developed around liability-related concepts. Thus, we are not dealing here with a no-fault scheme. Since the statutory scheme makes liability an important factor in the State's determination to deprive an individual of his licenses, the State may not, consistently with due process, eliminate consideration of that factor in its prior hearing.
7
The hearing required by the Due Process Clause must be 'meaningful,' Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965), and 'appropriate to the nature of the case.' Mullane v. Central Hanover Bank & Trust Co., supra, 339 U.S., at 313, 70 S.Ct., at 657. It is a proposition which hardly seems to need explication that a hearing which excludes consideration of an element essential to the decision whether licenses of the nature here involved shall be suspended does not meet this standard.
8
Finally, we reject Georgia's argument that if it must afford the licensee an inquiry into the question of liability that determination, unlike the determination of the matters presently considered at the administratively hearing, need not be made prior to the supension of the licenses. While '(m) any controversies have raged about * * * the Due Process Clause,' ibid., it is fundamental that except in emergency situations (and this is not one)5 due process requires that when a State seeks to terminate an interest such as that here involved, it must afford 'notice and opportunity for hearing appropriate to the nature of the case' before the termination becomes effective. Ibid. Opp Cotton Mills v. Administrator, 312 U.S., at 152—156, 61 S.Ct., at 536—538; Sniadach v. Family Finance Corp., supra; Goldberg v. Kelly, supra; Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971).
9
We hold, then, that under Georgia's present statutory scheme, before the State may deprive petitioner of his driver's license and vehicle registration it must provide a forum for the determination of the question whether there is a reasonable possibility of a judgment being rendered against him as a result of the accident. We deem it inappropriate in this case to do more than lay down this requirement. The alternative methods of compliance are several. Georgia may decide merely to include consideration of the question at the administrative hearing now provided, or it may elect to postpone such a consideration to the de novo judicial proceedings in the Superior Court. Georgia may decide to withhold suspension until adjudication of an action for damages brought by the injured party. Indeed, Georgia may elect to abandon its present scheme completely and pursue one of the various alternatives in force in other States.6 Finally, Georgia may reject all of the above and devise an entirely new regulatory scheme. The area of choice is wide: we hold only that the failure of the present Georgia scheme to afford the petitioner a prior hearing on liability of the nature we have defined denied him procedural due process in violation of the Fourteenth Amendment.
10
The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
11
Reversed and remanded.
12
THE CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice BLACKMUN concur in the result.
1
Motor Vehicle Safety Responsibility Act, Ga.Code Ann. § 92A—601 et seq. (1958). In pertinent part the Act provides that anyone involved in an accident must submit a report to the Director of Public Safety. Ga.Code Ann. § 92A—604 (Supp. 1970). Within 30 days of the receipt of the report the Director 'shall suspend the license and all registration certificates and all registration plates of the operator and owner of any motor vehicle in any manner involved in the accident unless or until the operator or owner has previously furnished or immediately furnishes security, sufficient * * * to satisfy any judgments for damages or injuries resulting * * * and unless such operator or owner shall give proof of financial responsibility for the future as is required in section 92A—615.1. * * *' Ga.Code Ann. § 92A 605(a) (Supp. 1970). Section 92A—615.1 (Supp. 1970) requires that 'such proof must be maintained for a one-year period.' Section 92A 605(a) works no suspension, however, (1) if the owner or operator had in effect at the time of the accident a liability insurance policy or other bond, Ga.Code Ann. 92A—605(c) (Supp. 1970); (2) if the owner or operator qualifies as a self-insurer, ibid.; (3) if only the owner or operator was injured, Ga.Code Ann. § 92A—606 (1958); (4) if the automobile was legally parked at the time of the accident, ibid.; (5) if as to an owner, the automobile was being operated without permission, ibid.; or (6) '(i)f prior to the date that the Director would otherwise suspend license and registration * * * there shall be filed with the Director evidence satisfactory to him that the person who would otherwise have to file security has been released from liability or been finally adjudicated not to be liable or has executed a duly acknowledged written agreement providing for the payment of an agreed amount in installments. * * *' Ibid.
2
Questions concerning the requirement of proof of future financial responsibility are not before us. The State's brief, at 4, states: 'The one year period for proof of financial responsibility has now expired, so (petitioner) would not be required to file such proof, even if the Court of Appeals decision were affirmed.'
3
Ga.Code Ann. § 92A—602 (1958) provides:
'The Director shall administer and enforce the provisions of this Chapter and may make rules and regulations necessary for its administration and shall provide for hearings upon request of persons aggrieved by orders or acts of the Director under the provisions of this Chapter. Such hearing need not be a matter of record and the decision as rendered by the Director shall be final unless the aggrieved person shall desire an appeal, in which case he shall have the right to enter an appeal to the superior court of the county of his residence, by notice to the Director, in the same manner as appeals are entered from the court of ordinary, except that the appellant shall not be required to post any bond nor pay the costs in advance. If the aggrieved person desires, the appeal may be heard by the judge at term or in chambers or before a jury at the first term. The hearing on the appeal shall be de novo, however, such appeal shall not act as a supersedeas of any orders or acts of the Director, nor shall the appellant be allowed to operate or permit a motor vehicle to be operated in violation of any suspension or revocation by the Director, while such appeal is pending. A notice sent by registered mail shall be sufficient service on the Director that such appeal has been entered.'
4
Petitioner stated at oral argument that while 'it would be possible to raise (an equal protection argument) * * * we don't raise this point here.' Tr. of Oral Arg. 14.
5
See, e.g., Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030 (1947); Ewing v. Mytinger & Casselberry, 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950).
6
The various alternatives include compulsory insurance plans, public or joint public-private unsatisfied judgment funds, and assigned claims plans. See R. Keeton & J. O'Connell, After Cars Crash (1967).
| 34
|
402 U.S. 544
91 S.Ct. 1563
29 L.Ed.2d 98
James PALMER, Appellant,v.CITY OF EUCLID, OHIO.
No. 143.
Argued Jan. 11, 1971.
Decided May 24, 1971.
Niki Z. Schwartz, Cleveland, Ohio, for appellant.
David J. Lombardo, Cleveland, Ohio, for appellee.
PER CURIAM.
1
Appellant Palmer was convicted by a jury of violating the City of Euclid's 'suspicious person ordinance,' that is, of being
2
'(a)ny person who wanders about the streets or other public ways or who is found abroad at late or unusual hours in the night without any visible or lawful business and who does not give satisfactory account of himself.'
3
He was fined $50 and sentenced to 30 days in jail. The County Court of Appeals affirmed the judgment and appeal to the Supreme Court of Ohio was dismissed 'for the reason that no substantial constitutional question exists herein.' We noted probable jurisdiction. 397 U.S. 1073, 90 S.Ct. 1525, 25 L.Ed.2d 808 (1970).
4
We reverse the judgment against Palmer because the ordinance is so vague and lacking in ascertainable standards of guilt that, as applied to Palmer, it failed to give 'a person of ordinary intelligence fair notice that his contemplated conduct is forbidden * * *.' United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954).
5
The elements of the crime defined by the ordinance apparently are (1) wandering about the streets or being abroad at late or unusual hours; (2) being at the time without visible or lawful business;* and (3) failing to give a satisfactory explanation for his presence on the streets. Palmer, in his car, was seen late at night in a parking lot. A female left his car and entered by the front door an adjoining apartment house. Palmer then pulled onto the street, parked with his lights on, and used a two-way radio. He was not armed. He said he had just let off a friend. He was then arrested. At the station he gave three different addresses for himself and said he did not know his friend's name or where she was going when she left his car. Palmer could reasonably be charged with knowing that he was on the streets at a late or unusual hour and that denying knowledge of his friend's identity and claiming multiple addresses amounted to an unsatisfactory explanation under the ordinance. But in our view the ordinance gave insufficient notice to the average person that discharging a friend at an apartment house and then talking on a car radio while parked on the street was enough to show him to be 'without any visible or lawful business.' Insofar as this record reveals, everything appellant did was quite visible and there is no suggestion whatsoever that what he did was unlawful under local, state, or federal law. If his conduct nevertheless satisfied the being-without-visible-or-lawful-business element of the ordinance, as the state courts must have held, it is quite unreasonable in our view to charge him with notice that such would be the construction of the ordinance. 'The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.' United States v. Harris, supra, at 617, 74 S.Ct., at 812; Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); Wright v. Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963).
6
The judgment of the Supreme Court of Ohio is reversed.
7
It is so ordered.
8
Mr. Justice HARLAN concurs in the result.
9
Mr. Justice STEWART, with whom Mr. Justice DOUGLAS joins, concurring.
10
While I agree with the Court that Euclid's 'suspicious person ordinance' is unconstitutional as applied to the appellant, I would go further and hold that the ordinance is unconstitutionally vague on its face.
11
A policeman has a duty to investigate suspicious circumstances, and the circumstance of a person wandering the streets late at night without apparent lawful business may often present the occasion for police inquiry. But in my view government does not have constitutional power to make that circumstance, without more, a criminal offense.
*
The ordinance seemingly requires a 'business' purpose to be on the streets. But it seems irrational to construe the ordinance as permitting only visible and lawful commercial activities on the streets, thus in effect converting the ordinance into a curfew with exceptions for lawful commercial conduct. Neither the lower court nor appellee city suggests that the ordinance should be construed in this manner or that anyone would expect that it would be so construed.
| 34
|
402 U.S. 509
91 S.Ct. 1583
29 L.Ed.2d 68
Ib Otto ASTRUP, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE.
No. 840.
Argued April 20, 1971.
Decided May 24, 1971.
Paul N. Halvonik, San Francisco, Cal., for petitioner.
Richard B. Stone, Washington, D.C., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The issue in this case is exceedingly simple. By signing SSS Form 130—Application by Alien for Relief from Training and Service in the Armed Forces—the petitioner, Ib Otto Astrup, a native of Denmark, agreed to give up his right to become an American citizen, and in exchange, the United States, pursuant to § 4(a) of the Selective Service Act of 1948, 62 Stat. 605, 50 U.S.C. App. § 454(a) (1964 ed., Supp. III), agreed to give up the right to induct Astrup into the United States armed forces. Congress later repealed the law under which Astrup was exempted from military service, reneging on its part of the bargain with him.1 Universal Military Training and Service Act § 4(a), 65 Stat. 76, 50 U.S.C. App. § 454(a) (1952 ed.). Thereafter the Selective Service System attempted to draft Astrup and would have succeeded in putting him into uniform but for the fact that he was found to be physically unfit for the draft. Later, when Astrup decided that he would like to become an American citizen, the Government attempted to enforce Astrup's promise even though it was unwilling to keep its own promise. When Astrup petitioned for naturalization, the United States District Court for the Northern District of California denied his petition on the ground that he was debarred from citizenship. The Court of Appeals for the Ninth Circuit affirmed. 432 F.2d 438 (1970). We granted Astrup's petition for certiorari, 400 U.S. 1008, 91 S.Ct. 566, 27 L.Ed.2d 621 (1971), and now reverse.
2
In support of the decision below the United States emphasizes the fact that Astrup admitted having read a notice proclaiming that:
3
'Any citizen of a foreign country * * * shall be relieved from liability for training and service under this title if, prior to his induction into the armed forces, he has made application to be relieved from such liability * * *; but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States.' Form SSS 130, quoting Se-62 Stat. 606, 50 U.S.C. App. § 454(a) (1946 ed., Supp. III).
4
He further admitted having signed a statement saying, 'I understand that I will forever lose my rights to become a citizen of the United States * * *.' Upon the basis of these statements and § 4(a) of the Selective Service Act of 1948, the United States argues that the case is controlled by our decision in Ceballos v. Shaughnessy, 352 U.S. 599, 77 S.Ct. 545, 1 L.Ed.2d 583 (1957), in which we enforced similar citizenship debarment provisions in a deportation case arising under the Immigration Act of 1917, § 19(c), 39 Stat. 889, as amended, 54 Stat. 672, 62 Stat. 1206, 8 U.S.C. § 155(c) (1946 ed., Supp. V). Ceballos, however, does not govern this case. In Ceballos the Court specifically held that § 315 of the Immigration and Nationality Act of 1952, 66 Stat. 242, 8 U.S.C. § 1426, was inapplicable because of the effective date of the 1952 Act and because § 315 was expressly inapplicable to deportation proceedings under the 1917 Act. 352 U.S., at 606 n. 17, 77 S.Ct., at 549.
5
Astrup, unlike Ceballos, is not involved in a deportation proceeding under the Immigration Act of 1917 and consequently the saving clause of the Immigration and Nationality Act of 1952, § 405, 66 Stat. 280, is inapplicable.2 See note following 8 U.S.C. § 1101. Moreover, Astrup petitioned for naturalization under § 316 of the 1952 Act. Therefore, § 315 of the 1952 Act, not § 4(a) of the Selective Service Act of 1948, determines the effect to be given to Astrup's 1950 application for exemption from military service. Section 315 provides:
6
'Notwithstanding the provisions of section 405(b) of this Act, any alien who applies or has applied for exemption or discharge from training or service in the Armed Forces or in the National Security Training Corps of the United States on the ground that he is an alien, and is or was relieved or discharged from such training or service on such ground, shall be permanently ineligible to become a citizen of the United States.' 66 Stat. 242, 8 U.S.C. § 1426. (Emphasis added.)
7
This is a two-pronged prerequisite for the loss of eligibility for United States citizenship. The alien must be one who 'applies or has applied for exemption or discharge' from military service and 'is or was relieved or discharged' from that service. There is no question that Astrup applied for an exemption. The United States argues that he was temporarily released from military service but recognizes that the release was not permanent. And even the Government is forced to concede that the temporary release from military service is not by itself sufficient to debar an alien from a later claim to naturalized citizenship, because the Government recognizes the correctness of the Second Circuit's decision in United States v. Hoellger, 273 F.2d 760 (1960), that if an alien is once relieved from service but is later compelled to perform military service the bar to citizenship does not arise.
8
Other courts have distinguished the Hoellger holding from the situation where an alien is once relieved from military service but later reclassified for service which he never perform because of intervening circumstances such as physical unfitness. See Lapenieks v. Immigration and Naturalization Service, 389 F.2d 343 (1968); United States v. Hoellger, supra, 273 F.2d, at 762 n. 2. However, there is nothing in the language of § 315 which leads us to believe that Congress intended such harsh and bizarre consequences to flow from an individual's failure to pass a physical examination.3 We think that Congress used the words 'is or was relieved' to provide that an alien who requests exemption from the military service be held to his agreement to relinquish all claims to naturalized citizenship only when the Government abides by its part of the agreement and completely exempts him from service in our armed forces.4
9
Consequently, the United States District Court erred in denying Astrup's petition for naturalization on the ground that he was barred from citizenship because he had once claimed an exemption from military service as an alien. The decision of the Court of Appeals for the Ninth Circuit affirming the District Court is reversed and the case is remanded to the District Court for further proceedings on Astrup's petition for naturalization.
10
It is so ordered.
11
Reversed and remanded.
1
Astrup was lawfully admitted to the United States for permanent residence on February 20, 1950. On November 14, 1950, he executed SSS Form 130, requesting an exemption from military service on the ground of alienage. At that time the Selective Service Act of 1948, § 4(a), 62 Stat. 605, 50 U.S.C.App. § 454(a) (1946 ed., Supp. III), provided such an exemption for any alien. The Universal Military Training and Service Act § 4(a), 65 Stat. 76, 50 U.S.C.App. § 454(a) (1952 ed.), which became effective June 19, 1951, amended the earlier provision relating to exemptions for aliens so that the exemption was not available to aliens who were permanent residents of this country.
2
The United States argues that the saving clause of the 1952 Act is applicable, citing United States v. Menasche, 348 U.S. 528, 75 S.Ct. 513, 99 L.Ed. 615 (1955), and Shomberg v. United States, 348 U.S. 540, 75 S.Ct. 509, 99 L.Ed. 624 (1955). In Menasche the Court held that an alien who had filed a declaration of intention to become an American citizen had a 'right in process of acquisition' preserved by the saving clause which provided: 'Nothing contained in (the 1952) Act, unless otherwise specifically provided therein, shall be construed to affect the validity of any declaration of intention * * *.' The Court there found nothing in the 1952 Act that specifically nullified Menasche's declaration. In Shomberg, on the other hand, the Court found in § 318 of the 1952 Act, 66 Stat. 244, 8 U.S.C. § 1429, a specific bar to final determination of a naturalization petition by an alien against whom there was an outstanding deportation proceeding. This case is more like Shomberg than Menasche in that § 315 is addressed to events which may have occurred before the effective date of the 1952 Act and refers specifically to the saving clause as, at least partially, inapplicable.
3
We find no merit in the Government's contention that Astrup was effectively relieved from military service on account of alienage merely because he was found to be medically qualified for the draft on October 11, 1950, before he claimed an exemption and was later found to be medically unfit for the draft, after the Government repudiated its part of the bargain. The quality of pre-induction physical examinations varies widely and the standards of medical fitness are frequently revised. In any event, the examination is primarily for the benefit of the United States, insuring that those inducted are physically capable of performing adequately and that the United States does not become legally obligated to provide medical treatment for conditions not caused by military service.
4
Cf. Federal Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99, 142, 80 S.Ct. 543, 567, 4 L.Ed.2d 584 (1960) (Black, J., dissenting): 'Great nations, like great men, should keep their word.'
| 12
|
402 U.S. 530
91 S.Ct. 1580
29 L.Ed.2d 85
UNITED STATES, Petitioner,v.Raymond J. RYAN.
No. 758.
Argued April 26, 1971.
Decided May 24, 1971.
Syllabus
District Court's order denying respondent's motion to quash a grand jury subpoena duces tecum requiring the production of records under his control in Kenya was not final and therefore not appealable, Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783; nor was it rendered an appealable temporary injunction by inclusion of a provision requiring respondent to seek permission from Kenyan authorities to remove some documents from Kenya and if such permission was denied to grant United States agents access to the documents in that country. Pp. 532 534.
9 Cir., 430 F.2d 658, reversed.
Jerome Feit, Washington, D.C., for petitioner.
Herbert J. Miller, Jr., Washington, D.C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
In March of 1968, respondent was served with a subpoena duces tecum commanding him to produce before a federal grand jury all books, records, and documents of five named companies doing business in Kenya. He moved, on several grounds, to quash the subpoena. The District Court denied the motion to quash and, in light of respondent's claim that Kenya law forbids the removal of books of account, minute books, and lists of members from the country without consent of its Registrar of Companies, ordered him to attempt to secure such consent and, if unsuccessful, to make the records available for inspection in Kenya.1 The Court of Appeals, 430 F.2d 658 (CA9 1970), held that by directing respondent to make application to a Kenyan official for release of some of the records, the District Court had done 'more than deny a motion to quash; it in effect granted a mandatory injunction.' Id., at 659. The Court of Appeals therefore concluded that the order was appealable under 28 U.S.C. § 1292(a)(1)2 and, reaching the merits, reversed. Ibid. We granted certiorari, 400 U.S. 1008, 91 S.Ct. 564, 27 L.Ed.2d 620 (1971). We conclude that the District Court's order was not appealable, and reverse.
2
Respondent asserts no challenge to the continued validity of our holding in Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940), that one to whom a subpoena is directed may not appeal the denial of a motion to quash that subpoena but must either obey its commands or refuse to do so and contest the validity of the subpoena if he is subsequently cited for contempt on account of his failure to obey. Respondent, however, argues that Cobbledick does not apply in the circumstances before us because, he asserts, unless immediate review of the District Court's order is available to him, he will be forced to undertake a substantial burden in complying with the subpoena, and will therefore be 'powerless to avert the mischief of the order.' Perlman v. United States, 247 U.S. 7, 13, 38 S.Ct. 417, 419, 62 L.Ed. 950 (1918).
3
We think that respondent's assertion misapprehends the thrust of our cases. Of course, if he complies with the subpoena he will not thereafter be able to undo the substantial effort he has exerted in order by comply.3 But compliance is not the only course open to respondent. If, as he claims, the subpoena is unduly burdensome or otherwise unlawful, he may refuse to comply and litigate those questions in the event that contempt or similar proceedings are brought against him. Should his contentions be rejected at that time by the trial court, they will then be ripe for appellate review.4 But we have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal. Cobbledick v. United States, supra; Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686 (1906); cf. United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966); Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962); Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957). Only in the limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual's claims have we allowed exceptions to this principle. We have thus indicated that review is available immediately of a denial of a motion for the return of seized property, where there is no criminal prosecution pending against the movant. See Di Bella v. United States, supra, at 131—132, 82 S.Ct. 654. Denial of review in such circumstances would mean that the Government might indefinitely retain the property without any opportunity for the movant to assert on appeal his right to possession. Similarly, in Perlman v. United States, 247 U.S., at 12—13, 38 S.Ct., at 419 420, we allowed immediate review of an order directing a third party to produce exhibits which were the property of appellant and, he claimed, immune from production. To have denied review would have left Perlman 'powerless to avert the mischief of the order,' id., at 13, 38 S.Ct., at 419, for the custodian could hardly have been expected to risk a citation for contempt in order to secure Perlman an opportunity for judicial review. In the present case, however, respondent is free to refuse compliance and, as we have noted, in such event he may obtain full review of his claims before undertaking any burden of compliance with the subpoena. Perlman, therefore, has no application in the situation before us.
4
Finally, we do not think that the District Court's order was rendered a temporary injunction appealable under 28 U.S.C. § 1292(a)(1) by its inclusion of a provision requiring respondent to seek permission from the Kenyan authorities to remove some of the documents from that country, and in the event that permission was denied to permit Government officials access to the documents in Kenya. The subpoena, if valid, placed respondent under a duty to make in good faith all reasonable efforts to comply with it, and respondent himself had asserted that compliance would be in violation of Kenya law unless permission to remove was properly obtained. Read against this background, the District Court's order did nothing more than inform respondent before the event of what efforts the District Court would consider sufficient attempts to comply with the subpoena. We cannot imagine that respondent would be prosecuted for contempt if he produced the documents as required but without attempting to obtain permission from the authorities in Kenya. The additional provisions in the order added nothing to respondent's burden and, if anything, rendered the burden of compliance less onerous. They did not convert denial of a motion to quash into an appealable injunctive order.
5
Reversed.
1
The District Court ordered that:
'I. The motion of (respondent) to quash the subpoena duces tecum is denied.
'II. (Respondent) will produce, with the exception of the books of account, minute books and the list of members, before the Federal grand jury at Los Angeles, California, on September 11, 1968, the books, records, papers and documents of Ryan Investment, Itd., of Nairobi, Kenya, and Mawingo, Ltd., of Nanyuki and Nairobi, Kenya, doing business as The Mount Kenya Safari Club, referred to in the * * * subpoena duces tecum served on (respondent).
'III. (Respondent) shall forthwith make application to the Registrar of Companies in Kenya to release the books of account, minute books, and list of members so that (respondent) may produce these books, records, papers and documents at the Federal grand jury held at Los Angeles, California, on September 11, 1968, provided that if (respondent) is unable to secure the consent of the Registrar of Companies of Kenya, then (respondent) will make available to agents of the United States Department of Justice and/or the United States Department of the Treasury the books of account, minute books, and list of members, of Ryan Investment, Ltd., and Mawingo, Ltd., and these agents may inspect and make copies of these books and records.' App. 63—64.
2
The statute provides, in pertinent part, that: 'The courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States * * * granting, continuing, modifying, refusing or dissolving injunctions * * *.'
3
In such event, of course, respondent could still object to the introduction of the subpoenaed material or its fruits against him at a criminal trial. United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416 (1966).
4
Walker v. Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967), is not to the contrary. Our holding that the claims there sought to be asserted were not open on review of petitioners' contempt convictions was based upon the availability of review of those claims at an earlier stage.
| 89
|
402 U.S. 547
91 S.Ct. 2174
29 L.Ed.2d 102
James Herman BOSTIC, petitioner,v.UNITED STATES.
No. 5250.
Supreme Court of the United States
October Term, 1970.
May 24, 1971
Rehearing Denied Oct. 12, 1971.
See 92 S.Ct. 32.
Thomas C. Binkley, Nashville, Tenn., for petitioner.
Beatrice Rosenberg, Washington, D.C., for respondent.
On writ of certiorari to the United States Court of Appeals for the Sixth Circuit.
PER CURIAM.
1
We granted the writ of certiorari in this case1 to consider whether the Court of Appeals for the Sixth Circuit had erred in holding that the petitioner had properly been convicted of conspiracy to commit murder in order to avoid apprehension for the robbery of a federally insured bank. The Court of Appeals purported to uphold a conviction for this offense, though there was no evidence that the petitioner knew of the plan to commit murder, and he had been confined in prison for several months prior to the date the murder was committed.2 The memorandum for the United States in opposition to the granting of the writ urged that the petitioner was 'responsible for the actions of his co-conspirators in killing one member of the group,' and as to this issue, relied on the opinion of the Court of Appeals.
2
It now appears that these statements in the opinion of the Court of Appeals and in the memorandum of the United States were erroneous, and that the facts are not as we believed them to be at the time we granted the writ. The record shows that the petitioner was neither charged with nor convicted of the offense of conspiracy to commit murder. The conspiracy count on which the petitioner was convicted did not include any charge of conspiracy to murder. Indeed, in his closing argument to the jury the prosecutor stated that the petitioner had left the conspiracy prior to the murder, when he was returned to the penitentiary.
3
Inasmuch as our grant of the writ of certiorari in this case was predicated on the mistaken representation that the petitioner had been convicted of the offense of conspiracy to commit murder, we now dismiss the writ as improvidently granted.
4
It is ordered.
1
400 U.S. 991, 91 S.Ct. 462, 27 L.Ed.2d 438.
2
424 F.2d 951. The opinion recites that the conspiracy count on which the petitioner was convicted 'alleged a conspiracy to rob federally insured banks with dangerous weapons and to commit murder to avoid apprehension for same.' 424 F.2d, at 953. The court went on to say, 'As to Bostic, although he had been returned to the penitentiary sometime before Ferguson's murder, there is no evidence that he had renounced or withdrawn from the conspiracy.' 424 F.2d, at 964.
| 89
|
402 U.S. 689
91 S.Ct. 2186
29 L.Ed.2d 267
Robert Kenneth DEWEYv.REYNOLDS METALS COMPANY.
No. 835.
Supreme Court of the United States
October Term, 1970.
June 1, 1971
Donald F. Oosterhouse, Grand Rapids, Mich., for petitioner.
Lawrence G. Wallace, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
William A. Coughlin, Jr., Detroit, Mich., for respondent.
On writ of certiorari to the United States Court of Appeals for the Sixth Circuit.
PER CURIAM.
1
The judgment is affirmed by an equally divided Court.
2
Mr. Justice HARLAN took no part in the consideration or decision of this case.
| 23
|
402 U.S. 611
91 S.Ct. 1686
29 L.Ed.2d 214
Dennis COATES et al., Appellants,v.CITY OF CINCINNATI.
No. 117.
Argued Jan. 11, 1971.
Decided June 1, 1971.
Syllabus
Cincinnati, Ohio, ordinance making it a criminal offense for 'three or more persons to assemble * * * on any of the sidewalks * * * and there conduct themselves in a manner annoying to persons passing by * * *,' which has not been narrowed by any construction of the Ohio Supreme Court, held, violative on its face of the due process standard of vagueness and the constitutional right of free assembly and association. Pp. 1688—1689.
21 Ohio St.2d 66, 255 N.E.2d 247, reversed.
Robert R. Lavercombe, Cincinnati, for appellants.
A. David Nichols, Cincinnati, for appellee.
Mr. Justice STEWART delivered the opinion of the Court.
1
A Cincinnati, Ohio, ordinance makes it a criminal offense for 'three or more persons to assemble * * * on any of the sidewalks * * * and there conduct themselves in a manner annoying to persons passing by * * *.'1 The issue before us is whether this ordinance is unconstitutional on its face.
2
The appellants were convicted of violating the ordinance, and the convictions were ultimately affirmed by a closely divided vote in the Supreme Court of Ohio, upholding the constitutional validity of the ordinance. 21 Ohio St.2d 66, 255 N.E.2d 247. An appeal from that judgment was brought here under 28 U.S.C. § 1257(2),2 and we noted probable jurisdiction, 398 U.S. 902, 90 S.Ct. 1694, 26 L.Ed.2d 60. The record brought before the reviewing courts tells us no more than that the appellant Coates was a student involved in a demonstration and the other appellants were pickets involved in a labor dispute. For throughout this litigation it has been the appellants' position that the ordinance on its face violates the First and Fourteenth Amendments of the Constitution. Cf. Times Film Corp. v. Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403.
3
In rejecting this claim and affirming the convictions the Ohio Supreme Court did not give the ordinance any construction at variance with the apparent plain import of its language. The court simply stated:
4
'The ordinance prohibits, inter alia, 'conduct * * * annoying to persons passing by.' The word 'annoying' is a widely used and well understood word; it is not necessary to guess its meaning. 'Annoying' is the present participle of the transitive verb 'annoy' which means to trouble, to vex, to impede, to incommode, to provoke, to harass or to irritate.
5
'We conclude, as did the Supreme Court of the United States in Cameron v. Johnson, 390 U.S. 611, 616, 88 S.Ct. 1335, 20 L.Ed.2d 182 in which the issue of the vagueness of a statute was presented, that the ordinance 'clearly and precisely delineates its reach in words of common understanding. It is a 'precise and narrowly drawn regulatory statute (ordinance) evincing a legislative judgment that certain specific conduct be * * * proscribed.'" 21 Ohio St.2d, at 69, 255 N.E.2d, at 249.
6
Beyond this, the only construction put upon the ordinance by the state court was its unexplained conclusion that 'the standard of conduct which it specifies is not dependent upon each complainant's sensitivity.' Ibid. But the court did not indicate upon whose sensitivity a violation does depend—the sensitivity of the judge or jury, the sensitivity of the arresting officer, or the sensitivity of a hypothetical reasonable man.3
7
We are thus relegated, at best, to the words of the ordinance itself. If three or more people meet together on a sidewalk or street corner, they must conduct themselves so as not to annoy any police officer or other person who should happen to pass by. In our opinion this ordinance is unconstitutionally vague because it subjects the exercise of the right of assembly to an unasertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct.
8
Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. As a result, 'men of common intelligence must necessarily guess at its meaning.' Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322.
9
It is said that the ordinance is broad enough to encompass many types of conduct clearly within the city's constitutional power to prohibit. And so, indeed, it is. The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited. Gregory v. Chicago, 394 U.S. 111, 118, 124—125, 89 S.Ct. 946, 950, 953—954, 22 L.Ed.2d 134 (Black, J., concurring). It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed.4
10
But the vice of the ordinance lies not alone in its violation of the due process standard of vagueness. The ordinance also violates the constitutional right of free assembly and association. Our decisions establish that mere public intolerance or animosity cannot be the basis for abridgment of these constitutional freedoms. See Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1365, 22 L.Ed.2d 572; Cox v. Louisiana, 379 U.S. 536, 551—553, 85 S.Ct. 453, 462—463, 13 L.Ed.2d 471; Edwards v. South Carolina, 372 U.S. 229, 238, 83 S.Ct. 680, 685, 9 L.Ed.2d 697; Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131; Cantwell v. Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 84 L.Ed. 1213; Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 150—151, 84 L.Ed. 155. The First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right of assembly simply because its exercise may be 'annoying' to some people. If this were not the rule, the right of the people to gather in public places for social or political purposes would be continually subject to summary suspension through the good-faith enforcement of a prohibition against annoying conduct.5 And such a prohibition, in addition, contains an obvious invitation to discriminatory enforcement against those whose association together is 'annoying' because their ideas, their lifestyle, or their physical appearance is resented by the majority of their fellow citizens.6
11
The ordinance before us makes a crime out of what under the Constitution cannot be a crime. It is aimed directly at activity protected by the Constitution. We need not lament that we do not have before us the details of the conduct found to be annoying. It is the ordinance on its face that sets the standard of conduct and warns against transgression. The details of the offense could no more serve to validate this ordinance than could the details of an offense charged under an ordinance suspending unconditionally the right of assembly and free speech.
12
The judgment is reversed.
13
Mr. Justice BLACK.
14
First. I agree with the majority that this case is properly before us on appeal from the Supreme Court of Ohio.
15
Second. This Court has long held that laws so vague that a person of common understanding cannot know what is forbidden are unconstitutional on their face. Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516 (1921). Likewise, laws which broadly forbid conduct or activities which are protected by the Federal Constitution, such as, for instance, the discussion of political matters, are void on their face. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). On the other hand, laws which plainly forbid conduct which is constitutionally within the power of the State to forbid but also restrict constitutionally protected conduct may be void either on their face or merely as applied in certain instances. As my Brother WHITE states in his opinion (with which I substantially agree), this is one of those numerous cases where the law could be held unconstitutional because it prohibits both conduct which the Constitution safeguards and conduct which the State may constitutionally punish. Thus, the First Amendment which forbids the State to abridge freedom of speech, would invalidate this city ordinance if it were used to punish the making of a political speech, even if that speech were to annoy other persons. In contrast, however, the ordinance could properly be applied to prohibit the gathering of persons in the mouths of alleys to annoy passersby by throwing rocks or by some other conduct not at all connected with speech. It is a matter of no little difficulty to determine when a law can be held void on its face and when such summary action is inappropriate. This difficulty has been aggravated in this case, because the record fails to show in what conduct these defendants had engaged to annoy other people. In my view, a record showing the facts surrounding the conviction is essential to adjudicate the important constitutional issues in this case. I would therefore vacate the judgment and remand the case with instructions that the trial court give both parties an opportunity to supplement the record so that we may determine whether the conduct actually punished is the kind of conduct which it is within the power of the State to punish.
16
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, dissenting.
17
The claim in this case, in part, is that the Cincinnati ordinance is so vague that it may not constitutionally be applied to any conduct. But the ordinance prohibits persons from assembling with others and 'conduct(ing) themselves in a manner annoying to persons passing by * * *.' Cincinnati Code of Ordinances § 901—L6. Any man of average comprehension should know that some kinds of conduct, such as assault or blocking passage on the street, will annoy others and are clearly covered by the 'annoying conduct' standard of the ordinance. It would be frivolous to say that these and many other kinds of conduct are not within the foreseeable reach of the law.
18
It is possible that a whole range of other acts, defined with unconstitutional imprecision, is forbidden by the ordinance. But as a general rule, when a criminal charge is based on conduct constitutionally subject to proscription and clearly forbidden by a statute, it is no defense that the law would be unconstitutionally vague if applied to other behavior. Such a statute is not vague on its face. It may be vague as applied in some circumstances, but ruling on such a challenge obviously requires knowledge of the conduct with which a defendant is charged.
19
In Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951), a police officer was charged under federal statutes with extracting confessions by force and thus, under color of law, depriving the prisoner there involved of rights, privileges, and immunities secured or protected by the Constitution and laws of the United States, contrary to 18 U.S.C. § 242. The defendant there urged that the standard—rights, privileges, and immunities secured by the Constitution—was impermissibly vague and, more particularly, that the Court was often so closely divided on illegal-confession issues that no defendant could be expected to know when he was violating the law. The Court's response was that, while application of the statute to less obvious methods of coercion might raise doubts about the adequacy of the standard of guilt, in the case before it, it was 'plain as a pikestaff that the present confessions would not be allowed in evidence whatever the school of thought concerning the scope and meaning of the Due Process Clause.' Id., at 101, 71 S.Ct., at 579. The claim of facial vagueness was thus rejected.
20
So too in United States v. National Dairy Prod. Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963), where we considered a statute forbidding sales of goods at 'unreasonably' low prices to injure or eliminate a competitor, 15 U.S.C. § 13a, we thought the statute gave a seller adequate notice that sales below cost were illegal. The statute was therefore not facially vague, although it might be difficult to tell whether certain other kinds of conduct fell within this language. We said: 'In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged.' Id., at 33, 83 S.Ct., at 598. See also United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954). This approach is consistent with the host of cases holding 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, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960), and cases there cited.
21
Our cases, however, including National Dairy, recognize a different approach where the statute at issue purports to regulate or proscribe rights of speech or press protected by the First Amendment. See United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951). 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. Dombrowski v. Pfister, 380 U.S. 479, 491—492, 85 S.Ct. 1116, 1123—1124, 14 L.Ed.2d 22 (1965). 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. See United States v. National Dairy Prod. Corp., supra, 372 U.S. at 36, 83 S.Ct., at 599.
22
Even accepting the overbreadth doctrine with respect to statutes clearly reaching speech, the Cincinnati ordinance does not purport to bar or regulate speech as such. It prohibits persons from assembling and 'conduct(ing)' themselves in a manner annoying to other persons. Even if the assembled defendants in this case were demonstrating and picketing, we have long recognized that picketing is not solely a communicative endeavor and has aspects which the State is entitled to regulate even though there is incidental impact on speech. In Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), the Court held valid on its face a statute forbidding picketing and parading near a courthouse. This was deemed a valid regulation of conduct rather than pure speech. The conduct reached by the statute was 'subject to regulation even though (it was) intertwined with expression and association.' Id., at 563, 85 S.Ct., at 480. The Court then went on to consider the statute as applied to the facts of record.
23
In the case before us, I would deal with the Cincinnati ordinance as we would with the ordinary criminal statute. The ordinance clearly reaches certain conduct but may be illegally vague with respect to other conduct. The statute is not infirm on its face and since we have no information from this record as to what conduct was charged against these defendants, we are in no position to judge the statute as applied. That the ordinance may confer wide discretion in a wide range of circumstances is irrelevant when we may be dealing with conduct at its core.
24
I would therefore affirm the judgment of the Ohio Supreme Court.
1
'It shall be unlawful for three or more persons to assemble, except at a public meeting of citizens, on any of the sidewalks, street corners, vacant lots, or mouths of alleys, and there conduct themselves in a manner annoying to persons passing by, or occupants of adjacent buildings. Whoever violates any of the provisions of this section shall be fined not exceeding fifty dollars ($50.00), or be imprisoned not less than one (1) nor more than thirty (30) days or both.' Section 901—L6, Code of Ordinances of the City of Cincinnati (1956).
2
'Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:
'(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.'
3
Cf. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031, where this Court upheld a statute that punished 'offensive, derisive or annoying' words. The state courts had construed the statute as applying only to such words 'as have a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed.' The state court also said: 'The word 'offensive' is not to be defined in terms of what a particular addressee thinks. * * * The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. * * * The English language has a number of words and expressions which by general consent are 'fighting words' when said without a disarming smile. * * * Such words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings. Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace.' This Court was 'unable to say that the limited scope of the statute as thus construed contravenes the constitutional right of free expression.' 315 U.S., at 573, 62 S.Ct., at 770.
4
In striking down a very similar ordinance of Cleveland, Ohio, as constitutionally invalid, the Court of Appeals for Cuyahoga County said:
'As it is written, the disorderly assembly ordinance could be used to incriminate nearly any group or individual. With little effort, one can imagine many * * * assemblages which, at various times, might annoy some persons in the city of Cleveland. Anyone could become an unwitting participant in a disorderly assembly, and suffer the penalty consequences. It has been left to the police and the courts to decide when and to what extent ordinance Section 13.1124 is applicable. Neither the police nor a citizen can hope to conduct himself in a lawful manner if an ordinance which is designed to regulate conduct does not lay down ascertainable rules and guidelines to govern its enforcement. This ordinance represents an unconstitutional exercise of the police power of the city of Cleveland, and is therefore void.' Cleveland v. Anderson, 13 Ohio App.2d 83, 90, 234 N.E.2d 304, 308—309.
5
In striking down a very similar ordinance of Toledo, Ohio, as constitutionally invalid, the Municipal Court of that city said:
'Under the provisions of Sections 17—5—10 and 17—5—11, arrests and prosecutions, as in the present instance, would have been effective as against Edmund Pendleton, Peyton Randolph, Richard Henry Lee, George Wythe, Patrick Henry, Thomas Jefferson, George Washington and others for loitering and congregating in front of Raleigh Tavern on Duke of Gloucester Street in Williamsburg, Virginia, at any time during the summer of 1774 to the great annoyance of Governor Dunsmore and his colonial constables.' City of Toledo v. Sims, 14 Ohio Op.2d 66, 69, 169 N.E.2d 516, 520.
6
The alleged discriminatory enforcement of this ordinance figured prominently in the background of the serious civil disturbances that took place in Cincinnati in June 1967. See Report of the National Advisory Commission on Civil Disorders 26 27 (1968).
| 23
|
402 U.S. 673
91 S.Ct. 1752
29 L.Ed.2d 256
UNITED STATES, Appellant,v.ARMOUR & CO. and Greyhound Corporation.
No. 759.
Argued April 19, 1971.
Decided June 1, 1971.
Syllabus
The ownership of the majority of the stock of Armour & Co., a meat packer, by Greyhound Corp., which has retail food subsidiaries and accordingly engages in business that may be forbidden to Armour by the Meat Packers Consent Decree of 1920, in itself and without any evidentiary showing as to the consequences, does not violate the Decree's prohibition against Armour 'directly or indirectly * * * engaging in or carrying on' the forbidden business. Pp. 674—683.
Affirmed.
James van R. Springer, Washington, D.C., for appellant.
Edward L. Foote, Chicago, Ill., for appellee, Greyhound Corporation.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Here as in United States v. Armour & Co., 298 U.S. 268, 90 S.Ct. 1723, 26 L.Ed.2d 226, we have been asked to determine if the Meat Packers Consent Decree of 1920, which prohibits Armour & Co. from dealing directly or indirectly in certain specified commodities, prohibits a corporation that may deal in some of those specified commodities from acquiring a controlling interest in Armour. When this decree was here last Term the Government was seeking to prevent General Host, a company engaged in the manufacture and sale of a variety of food products, from acquiring control of Armour. While that case was pending, General Host agreed to sell its interest in Armour to Greyhound Corp., a regulated motor carrier. After the required approval was obtained from the Interstate Commerce Commission, the transaction was consummated. This Court then dismissed the action against General Host as moot. 398 U.S. 268, 90 S.Ct. 1723, 26 L.Ed.2d 226.
2
The Government then proceeded against Greyhound as it had against General Host and filed a petition in the District Court alleging that Greyhound's engagement in business1 forbidden to Armour or any firm in which Armour has a direct or indirect interest, and that Greyhound's ownership of Armour create a relationship forbidden by the 1920 Consent Decree. The District Court, as it had when General Host's ownership of Armour was at issue, held that the Consent Decree did not prohibit such acquisitions. The Government appealed.
3
This case does not involve the question whether the acquisition of a majority of Armour stock by Greyhound is illegal under the antitrust laws. If the Government had wished to test that proposition, it could have brought an action to enjoin the acquisition under § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 18. Alternatively, if the Government believed that changed conditions warranted further relief against the acquisition, it could have sought modification of the Meat Packers Decree itself.2 It took neither of those steps, but, rather, sought to enjoin the acquisition under the decree as originally written. Thus the case presents only the narrow question whether ownership of a majority of stock in Armour by a company that engages in business forbidden to Armour by the decree, in itself and without any evidentiary showing as to the consequences, violates the prohibition against Armour's 'directly or indirectly * * * engaging in or carrying on' that forbidden business.
4
On February 27, 1920, the United States filed a bill in equity against the Nation's five largest meatpackers, including Armour, and against their subsidiary corporations and controlling stockholders, charging conspiratorial and individual attempts to monopolize a substantial part of the Nation's food supply. The bill alleged that the packers, from their initial position of power in the slaughtering and packing business, had acquired control of the Nation's stockyards, stockyard terminal rail lines, refrigerated rolling stock, and cold storage facilities, and that they had used predatory practices to eliminate competition in the food business.
5
The bill further alleged that the packers, having gained monopoly power in the meat business, were attempting to destroy competition in products which might be substituted for meat. That objective was being pursued through the acquisition of nonmeat food companies and by means of exclusive output contracts with suppliers. The prayer for relief sought, along with other prohibitions against the defendants' attempts to monopolize, the divestiture of most of their nonpacking operations and the permanent exclusion of them from the substitute food business.
6
On the same day as the complaint was filed, defendants filed their answer, denying its essential allegations, and both sides filed a stipulation to a consent decree, granting the Government the largest part of the relief it had sought. Paragraph Fourth of the decree enjoined the corporate defendants, including Armour from 'either directly or indirectly, by themselves or through their officers, directors, agents, or servants, engaging in or carrying on, either by concert of action or otherwise * * * the manufacturing, jobbing, selling * * * distributing, or otherwise dealing in' a long list of food and other products sold by grocery stores. Paragraph Fourth further enjoined the corporate defendants from 'owning, either directly or indirectly * * * any capital stock or other interests whatsoever' in any business which dealt in these commodities.3
7
Paragraph Eighteenth of the decree provided that the court should retain jurisdiction of the case 'for the purpose of taking such other action or adding to the foot of this decree such other relief, if any, as may become necessary or appropriate for the carrying out and enforcement of this decree.'
8
Since 1920, the decree has withstood a motion to vacate it in its entirety, Swift & Co. v. United States, 276 U.S. 311, 48 S.Ct. 311, 72 L.Ed. 587 (1928), and two attempts on the part of the defendants to have it modified in light of alleged changed circumstances. United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932); United States v. Swift & Co., 189 F.Supp. 885, 892 (ND Ill. 1960), aff'd, 367 U.S. 909, 81 S.Ct. 1918, 6 L.Ed.2d 1249 (1961). Thus the decree stood at the time this case arose, and still stands, as originally written.
9
The Government does not contend that Greyhound's acquisition of controlling interest in Armour subjects Greyhound to punishment for contempt since it was not a party to the decree. Nor does the Government contend that Greyhound has acted 'in active concert or participation with' a party.4 Instead, the Government argues that Greyhound should have been brought before the District Court, which retained permanent jurisdiction over the decree, pursuant to § 55 of the Sherman Act, and be enjoined from acting to exercise control over or influence the business affairs of Armour, and be required to divest itself of the Armour stock.
10
The contention is that the acquisition violates the decree since it causes Armour to be engaged in activities prohibited by the decree. The claim is that Greyhound is engaged in businesses that the decree prohibits Armour from being engaged in and the decree's purported purpose of separating the meatpackers from the retail food business is thus circumvented.
11
But while structural separation of this kind may have been the Government's overall aim, the decree itself, carefully worked out between the parties in exchange for their right to litigate the issues, does not effect a complete separation, but, rather, prohibits particular actions and relationships not including the one here in question. The crucial provision, Paragraph Fourth, forbids the corporate defendants from 'engaging in or carrying on' commerce in the enumerated product lines. This language, taken in its natural sense, bars only active conduct on the part of the defendants. Thus Armour could not trade in these products, either under its own corporate form, or through its 'officers, directors, agents, or servants.' The entry of Armour into the grocery business through subsidiaries is clearly and Draconically prevented by the separate provision of Paragraph Fourth forbidding the defendant meatpackers from owning 'any * * * interests whatsoever'6 in a firm trading in the enumerated commodities. In the Government's view these prohibitions also bar Armour from having any ownership relationship with corporations like Greyhound. The Government contends that Armour has an obligation not to engage directly or indirectly in legal or ecomomic association with firms in the retail food business. It refers to the prohibited relationship between Armour and Greyhound.
12
But the decree does not speak in terms of relationships in general, but, rather, prohibits certain behavior, and in doing so prohibits some but not all economic interrelationship between Armour and the retail food business. Armour may not carry on or engage in that business, nor may it acquire any interest in any firm in that business, but there is no prohbibition against selling any interest to a grocery firm, or more generally against entering into an ownership relationship with such a firm.7 If the parties had agreed to such a prohibition, they could have chosen language that would have established the sort of prohibition that the Government now seeks.
13
If the parties had agreed to prohibit Greyhound or Greyhound's subsidiaries. that end could also have been accomplished through the provision of the decree running against the stockholders of the defendant meatpackers. Many of the controlling stockholders were defendants in the 1920 action, and the decree prohibits certain conduct on their part in Paragraph Fifth.8 That paragraph prohibits the individual defendants from owning a half interest or more in any firm engaged in the product lines enumerated in Paragraph Fourth. This prohibition, through its negative implications refutes the Government's argument that the decree established a complete structural separation between the defendant corporations and the retail food business. For it allows a controlling stockholder of a meatpacker to own a controlling, though not a majority, interest in a grocery firm—say 49% of the common stock, a figure which in all but the most unusual corporate situation would represent de facto control.
14
Perhaps more important, the prohibitions of Paragraph Fifth run only against the named stockholders and not against their successors and assigns. If a 'successors and assigns' clause had been included, the Government could argue with some persuasiveness that ownership of a meatpacker by a controlling interest in a retail food firm was prohibited. And the parties were able to use the words 'successors and assigns' when they wanted to. Paragraph Third, which prohibits the corporate defendants from using their distribution facilities to handle the commodities named in Paragraph Fourth, expressly runs against the corporations and their 'successors and assigns.'
15
In short, we do not find in the decree a structural separation such as the Government claims. On the one hand, the decree leaves gaps inconsistent with so complete a separation; on the other, language that would have been apt either to create a complete separation or to bar with particularity the sort of transaction involved here was not used.
16
Stepping back from this analysis of the terms of the 1920 decree, we are confronted with the Government's argument that to allow Greyhound to take over Armour would allow the same kind of anticompetitive evils that the 1920 suit was brought to prevent. In its 1920 suit, the Government sought to insulate the large meatpackers from the grocery business, both to prevent the destruction of competition in that business, and to prevent consolidation of the packers' monopoly control of the meat business by controlling commerce in products that might be substitutes for meat. Those purposes, the Government says, are frustrated as much by a retail food company's acquisition of a meatpacker as they would be by a meatpacker's entry into the retail food business.
17
This argument would have great force if addressed to a court that had the responsibility for formulating original relief in this case, after the factual and legal issues raised by the pleadings had been litigated. It might be a persuasive argument for modifying the original degree, after full litigation, on a claim that unforeseen circumstances now made additional relief desirable to prevent the evils aimed at by the original complaint.9 Here, however, where we deal with the construction of an existing consent decree, such an argument is out of place.
18
Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation. Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation. Thus the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve.10 For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it. Because the defendant has, by the decree, waived his right to litigate the issues raised, a right guaranteed to him by the Due Process Clause, the conditions upon which he has given that waiver must be respected, and the instrument must be construed as it is written, and not as it might have been written had the plaintiff established his factual claims and legal theories in litigation.
19
This Court has recognized these principles before. In Hughes v. United States, 342 U.S. 353, 72 S.Ct. 306, 96 L.Ed. 394 (1952), the Government sought to construe a consent decree that gave the defendant the option of selling his stock or putting it in a voting trust as requiring him to sell the stock within a reasonable time even though he chose the voting trust alternative, because the procompetitive purpose of the decree would otherwise be frustrated. The Court responded:
20
'It may be true as the Government now contends that Hughes' large block of ownership in both types of companies endangers the independence of each. Evidence might show that a sale by Hughes is indispensable if competition is to be preserved. However, in section V the parties and the District Court provided their own detailed plan to neutralize the evils from such ownership. Whatever justification there may be now or hereafter for new terms that require a sale of Hughes' stock, we think there is no fair support for reading that requirement into the language of section V.' 342 U.S., at 357, 72 S.Ct., at 308.
21
In United States v. Atlantic Refining Co., 360 U.S. 19, 79 S.Ct. 944, 3 L.Ed.2d 1054 (1959), the Government sought an order limiting the dividends payable by common carriers to shipper-owners, under a consent decree that allowed such dividends to be paid according to a stated formula. Noting that the language in which the formula was expressed could 'be made to support the United States' contention,' but characterizing that construction as 'strained,' 360 U.S., at 22, 79 S.Ct., at 946, the Court stated:
22
'The Government contends that the interpretation it now offers would more nearly effectuate 'the basic purpose of the Elkins and Interstate Commerce Acts that carriers are to treat all shippers alike.' This may be true. But it does not warrant our substantially changing the terms of a decree to which the parties consented without any adjudication of the issues.' Id., at 23, 79 S.Ct., at 946.
23
And here too, although the relief the Government seeks may be in keeping with the purposes of the antitrust laws, we do not believe that it is supported by the terms of the consent decree under which it is sought.
24
Affirmed.
25
Mr. Justice BLACK and Mr. Justice BLACKMUN took no part in the consideration or the decision of this case.
26
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice WHITE concur, dissenting.
27
The antitrust decree before us last Term in United States v. Armour & Co., 398 U.S. 268, 90 S.Ct. 1723, 26 L.Ed.2d 226, is here again in a new posture. Under the original decree of 1920 the defendants were required to abandon their interests in a wide variety of food and nonfood lines. They were required to divest themselves of any interest in the businesses of 'manufacturing, jobbing, selling, transporting * * * distributing, or otherwise dealing in' some 114 specified food products and some 30 other products. They were enjoined from 'owning, either directly or indirectly * * * any capital stock or other interests whatsoever in any corporation * * * which is in the business, in the United States, of manufacturing, jobbing, selling, transporting * * * distributing, or otherwise dealing in any' of the prohibited products. Under the decree the District Court retained jurisdiction 'for the purpose of taking such other action or adding to the foot of this decree such other relief, if any, as may become necessary or appropriate for the carrying out and enforcement of this decree.'
28
Armour, one of the parties to the decree, is now the second largest meatpacker in the United States with total assets of almost $700 million and total sales in 1967 of approximately $2,150,000,000. In addition to meatpacking, Armour manufactures, processes, and sells various nonprohibited products. In early 1969 the Government filed a petition in Federal District Court to make General Host Corp., a company engaged in the manufacture and sale of numerous food products, a party to the decree and forbid it from acquiring control of Armour. The District Court held that the decree prohibited Armour from holding any interest in a company handling any of the prohibited products but did not prohibit such a company from acquiring Armour. The Government appealed the decision arguing that acquisition by General Host of a majority of Armour's stock would be in violation of the decree and General Host should have been made a party to the decree so that an injunction could issue. We noted probable jurisdiction. 396 U.S. 811, 90 S.Ct. 56, 24 L.Ed.2d 64.
29
In the interim, General Host entered into an agreement, to sell its controlling stock interest in Armour to Greyhound, a regulated motor carrier. The Interstate Commerce Commission approved the acquisition. Following Greyhound's acquisition, the Court dismissed the case as moot. 398 U.S. 268, 90 S.Ct. 1723, 26 L.Ed.2d 226.
30
The Government then filed a new petition in the District Court alleging (as it had against General Host) that Greyhound is engaged in businesses forbidden to Armour, or any firm in which Armour has a direct or indirect interest, and therefore Greyhound's acquisition violates the decree. The petition prayed that Greyhound be brought before the Court under § 5 of the Sherman Act and that an order supplemental to the original decree be entered enjoining Greyhound from acquiring any additional stock or exercising control over or influencing the business affairs of Armour, and requiring Greyhound to divest itself of the Armour stock. The District Court dismissed the Government's complaint, ruling that since Greyhound was not a party to the original decree, Greyhound may not be enjoined from 'committing any acts on the ground that they are prohibited by the decree.' The court also rejected the Government's argument that acquisition of the Armour stock placed the two companies in a 'corporate relationship' which was prohibited by the decree. The court stated 'the decree does not speak in terms of corporate relationships; it speaks in terms of the defendants dealing in the specified lines of commerce * * *.' The Government appealed.
The Sherman Act (15 U.S.C. § 5) provides:
31
'Whenever it shall appear to the court before which any proceeding under section 4 of this title may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof.' Under § 5 and the All Writs Act (28 U.S.C. § 1651(a)) the District Court has ample power to prevent frustration of the original decree.
32
Greyhound may well have devised a plan which would render the original decree nugatory.
33
Under the decree, none of the meatpackers could own a chain of grocery stores. Yet under the interpretation of the District Court a chain of grocery stores could acquire a meatpacking company. I do not view the decree so narrowly. The evil at which the decree is aimed is combining meatpackers with companies in other food product areas.
34
The authorities support the proposition that judges who construe, interpret, and enforce consent decrees look at the evil which the decree was designed to rectify. See Note, Flexibility and Finality in Antitrust Consent Decrees, 80 Harv.L.Rev. 1303, 1315.* My interpretation of the evil at which this decree was aimed is the same as that of Mr. Justice Cardozo, writing for this Court in United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999. As we stated in Chrysler Corp. v. United States, 316 U.S. 556, 562, 62 S.Ct. 1146, 1150, 86 L.Ed. 1668, the test for reviewing modifications is 'whether the change served to effectuate or to thwart the basic purpose of the original consent decree.'
35
Neither Hughes v. United States, 342 U.S. 353, 72 S.Ct. 306, 96 L.Ed. 394, nor United States v. Atlantic Refining Co., 360 U.S. 19, 79 S.Ct. 944, 3 L.Ed.2d 1054, relied on by the Court, is to the contrary. Hughes involved a Government attempt to require the trustee to sell stock in a voting trust where the consent decree expressly allowed Hughes a choice of selling the stock himself or placing the stock in a voting trust 'until Howard R. Hughes shall have sold his holdings of stock.' Atlantic Refining was a case where for 16 years, right until the eve of the litigation, both parties had construed the decree in one way. Then the Government changed its interpretation not because it would effectuate the purposes of the decree but because it 'would more nearly effectuate 'the basic purpose of the Elkins and Interstate Commerce Acts." 360 U.S., at 23, 79 S.Ct., at 946.
36
The evil at which the present decree is aimed—combining meatpackers with companies in other food product areas—is present whether Armour purchases a company dealing in the various prohibited food lines or whether that company purchases Armour. When any company purchases Armour it acquires not only Armour's assets and liabilities, but also Armour's legal disabilities. And one of Armour's legal disabilities is that Armour cannot be combined with a company in the various food lines set out in the decree.
37
I read the decree to prohibit any combination of the meatpacking company defendants with companies dealing in various food lines.
38
In the District Court the Government offered an affidavit which showed that Greyhound deals in food products through its divisions and wholly owned subsidiaries, which provide industrial catering services, and operates restaurants, cafeterias, and other eating facilities. The affidavit states that in 1969 Greyhound had revenues of about $124 million from food operations which accounted for over 16% of Greyhound's total revenues that year. Greyhound has contended that it operates no grocery business and only buys raw foodstuffs and sells prepared meals. Thus, Greyhound argues, it can acquire Armour even if it is made a party to the decree because the decree does not prohibit meatpackers from entering the restaurant business. I do not pass on this contention. Rather, I would reverse the judgment of the District Court and remand the case to that court for any further proceedings which are necessary to determine if Greyhound's acquisition of Armour violates the decree. If it does, then the District Court should make Greyhound a party to that decree.
1
The Government claims that two of Greyhound's wholly owned subsidiaries are engaged in the retail food business. Prophet Foods Co., an industrial catering company, operates eating facilities in industrial plants, schools, hospitals, nursing homes, and other commercial establishments. In 1968 Prophet's sales were in excess of $77 million. Post Houses, Inc., operates restaurants in bus stations and at rest and meal stop locations. Post Houses had sales in excess of $33 million in 1968.
2
See Chrysler Corp. v. United States, 316 U.S 556, 62 S.Ct. 1146, 86 L.Ed. 1668 (1942); and see generally Note, Flexibility and Finality in Antitrust Consent Decrees, 80 Harv.L.Rev. 1303 (1967).
3
Paragraph Eighth made identical provisions with respect to certain dairy commodities.
4
Fed.Rule Civ.Proc. 65(d) provides:
'Every order granting an injunction * * * is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.'
5
Section 5 of the Sherman Act, 26 Stat. 210, 15 U.S.C. § 5, provides:
'Whenever it shall appear to the court before which any proceeding under section 4 of this title may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof.'
6
That portion of Paragraph Fourth provides:
'(T)he corporation defendants and each of them be, and they are hereby, further perpetually enjoined and restrained from owning, either directly or indirectly, severally or jointly, by themselves or through their officers, directors, agents, or servants any capital stock or other interests whatsoever in any corporation, firm, or association except common carriers, which is in the business, in the United States, of manufacturing, jobbing, selling, transporting, except as common carriers, distributing, or otherwise dealing in any of the above-described products or commodities.'
7
The Government contends that Paragraph Fourth prohibits Armour from having 'any * * * interests whatsoever' in firms engaged in the prohibited businesses and that Armour as a subsidiary of Greyhound has an 'interest' in the other Greyhound subsidiaries that are engaged in the retail food business. But Paragraph Fourth does not prohibit Armour from having any interest; it prohibits Armour from 'owning' an interest. See n. 6, supra. Clearly, Armour has nothing approaching an ownership interest in Greyhound or Greyhoud's subsidiaries.
8
Paragraph Fifth provides:
'That the individual defendants and each of them, be, and they are hereby, perpetually enjoined and restrained from, in the United States, either directly or indirectly, by themselves or through their agents, servants, or employees, owning voting stock which in the aggregate amounts to 50% or more of the voting stock of any corporation, except common carriers, or any interest in such corporation resulting in a voting power amounting to 50 per cent or more of the total voting power of such corporation, or which interest by any device gives to any such defendant or defendants a voting power of 50 per cent or more in any such corporation, or a half interest or more in any firm or association which corporation, firm, or association may be, in the United States, in the business of manufacturing, jobbing, selling, transporting, distributing, or otherwise dealing in * * * (specified products).'
9
See sources cited in n. 2, supra.
10
Cf. Note, Flexibility and Finality, n. 2, supra, at 1314 1315.
*
See the cases cited in Note, Requests by the Government for Modification of Consent Decrees, 75 Yale L.J. 657, 667—668, n. 56.
| 78
|
402 U.S. 600
91 S.Ct. 1746
29 L.Ed.2d 206
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.The NATURAL GAS UTILITY DISTRICT OF HAWKINS COUNTY, TENNESSEE.
No. 785.
Argued April 20, 1971.
Decided June 1, 1971.
Syllabus
In this unfair labor practice proceeding under the Labor Management Relations Act respondent contended that it was not an 'employer' but came within the 'political subdivision' exemption in § 2(2) of the Act. The National Labor Relations Board (NLRB) had found that respondent met neither of the tests to which it held that exemption was limited, viz., entities that are either (1) created directly by the State, so as to constitute governmental departments or administrative arms, or (2) administered by individuals who are responsible to public officials or the general electorate. The Court of Appeals upheld respondent's contention, viewing as controlling a Tennessee Supreme Court decision construing the State's Utility District Law under which respondent had been organized. A District organized under that statute is a "municipality' or public corporation,' has eminent domain powers, is exempt from state, county, or municipal taxation, and whose income from its bonds is exempt from federal income tax. The officers who conduct the District's business receive nominal compensation, are appointed by a public official, and are subject to removal by statutory procedures applicable to public officials. Held:
1. Federal, rather than state, law governs the determination whether an entity is a 'political subdivision' of a State within the meaning of § 2(2) of the Labor Management Relations Act. NLRB v. Randolph Electric Membership Corp., 343 F.2d 60. Pp. 602—604.
2. While the NLRB's construction of the statutory term is entitled to great respect, there is no 'warrant in the record' and 'no reasonable basis in law' for the NLRB's conclusion that respondent was not a political subdivision. In the light of all the factors present here, including the fact that the District is administered by individuals who are responsible to public officials (thus meeting even one of the tests used by the NLRB), respondent comes within the coverage of that statutory exemption. Pp. 604 609.
427 F.2d 312, affirmed.
Dominick L. Manoli, Washington, D.C., for petitioner.
Eugene Greener, Jr., Memphis, Tenn., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Upon the petition of Plumbers and Steamfitters Local 102, the National Labor Relations Board ordered that a representation election be held among the pipefitters employed by respondent, Natural Gas Utility District of Hawkins County, Tennessee, 167 N.L.R.B. 691 (1967). In the representation proceeding, respondent objected to the Board's jurisdiction on the sole ground that as a 'political subdivision' of Tennessee, it was not an 'employer' subject to Board jurisdiction under § 2(2) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, 61 Stat. 137, 29 U.S.C. § 152(2).1 When the Union won the election and was certified by the Board as bargaining representative of the pipefitters, respondent refused to comply with the Board's certification ad recognize and bargain with the Union. An unfair labor practice proceeding resulted and the Board entered a cease-and-desist order against respondent on findings that respondent was in violation of §§ 8(a)(1) and 8(a)(5) of the Act, 29 U.S.C. §§ 158(a)(1) and 158(a)(5). 170 N.L.R.B. 1409 (1968). Respondent continued its noncompliance and the Board sought enforcement of the order in the Court of Appeals for the Sixth Circuit. Enforcement was refused, the court holding that respondent was a 'political subdivision,' as contended. 427 F.2d 312 (1970). We granted certiorari, 400 U.S. 990, 91 S.Ct. 457, 27 L.Ed. 435 (1971). We affirm.
2
The respondent was organized under Tennessee's Utility District Law of 1937, Tenn.Code Ann. §§ 6—2601 to 6—2627 (1955). In First Suburban Water Utility District v. McCanless, 177 Tenn. 128, 146 S.W.id 948 (1941), the Tennessee Supreme Court held that a utility district organized under this Act was an operation for a state governmental or public purpose. The Court of Appeals held that this decision 'was of controlling importance on the question whether the District was a political subdivision of the state' within § 2(2) and 'was binding on the Board.' 427 F.2d, at 315. The Board, on the other hand, had held that 'while such State law declarations and interpretations are given careful consideration * * *, they are not necessarily controlling.' 167 N.L.R.B., at 691. We disagree with the Court of Appeals and agree with the Board. Federal, rather than state, law governs the determination, under § 2(2), whether an entity created under state law is a 'political subdivision' of the State and therefore not an 'employer' subject to the Act.2
3
The Court of Appeals for the Fourth Circuit dealt with this question in NLRB v. Randolph Electric Membership Corp., 343 F.2d 60 (1965), where the Board had determined that Randolph Electric was not a 'political subdivision' within § 2(2). We adopt as correct law what was said at 62—63 of the opinion in that case:
4
'There are, of course, instances in which the application of certain federal statutes may depend on state law. * * *
5
'But this is controlled by the will of Congress. In the absence of a plain indication to the contrary, however, it is to be assumed when Congress enacts a statute that it does not intend to make its application dependent on state law. Jerome v. United States, 318 U.S. 101, 104, 63 S.Ct. 483, 87 L.Ed. 640 (1943).
6
'The argument of the electric corporations fails to persuade us that Congress intended the result for which they contend. Furthermore, it ignores the teachings of the Supreme Court as to the congressional purpose in enacting the national labor laws. In National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 123, 64 S.Ct. 851, 857, 88 L.Ed. 1170 (1944), the Court dealt with the meaning of the term 'employee' as used in the Wagner Act, saying:
7
"Both the terms and the purposes of the statute, as well as the legislative history, show that Congress had in mind no * * * patchwork plan for securing freedom of employees' organization and of collective bargaining. The Wagner Act is federal legislation, administered by a national agency, intended to solve a national problem on a national scale. * * * Nothing in the statute's background, history, terms or purposes indicates its scope is to be limited by * * * varying local conceptions, either statutory or judicial, or that it is to be administered in accordance with whatever different standards the respective states may see fit to adopt for ths disposition of unrelated, local problems.'
8
'Thus, it is clear that state law is not controlling and that it is to the actual operations and characteristics of (respondents) that we must look in deciding whether there is sufficient support for the Board's conclusion that they are not 'political subdivisions' within the meaning of the National Labor Relations Act.'
9
We turn then to identification of the governing federal law. The term 'political subdivision' is not defined in the Act and the Act's legislative history does not disclose that Congress explicitly considered its meaning. The legislative history does reveal, however, that Congress enacted the § 2(2) exemption to except from Board cognizance the labor relations of federal, state, and municipal governments, since govermental employees did not usually enjoy the right to strike.3 In the light of that purpose, the Board, according to its Brief, p. 11, 'has limited the exemption for political subdivisions to entities that are either (1) created directly by the state, so as to constitute departments or administrative arms of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate.'
10
The Board's construction of the broad statutory term is, of course, entitled to great respect. Randolph Electric, supra, at 62. This case does not however require that we decide whether 'the actual operations and characteristics' of an entity must necessarily feature one or the other of the Board's limitations to qualify an entity for the exemption, for we think that it is plain on the face of the Tennessee statute that the Board erred in its reading of it in light of the Board's own test. The Board found that 'the Employer in this case is neither created directly by the State, nor administered by State-appointed or elected officials.' 167 N.L.R.B., at 691—692 (footnotes omitted). But the Board test is not whether the entity is administered by 'State-appointed or elected officials.' Rather, alternative (2) of the test is whether the entity is 'administered by individuals who are responsible to public officials or to the general electorate' (emphasis added), and the Tennessee statute makes crystal clear that respondent is administered by a Board of Commissioners appointed by an elected county judge, and subject to removal proceedings at the instance of the Governor, the county prosecutor, or private citizens. Therefore, in the light of other 'actual operations and characteristics' under that administration, the Board's holding that respondent 'exists as an essentially private venture, with insufficient identity with or relationship to the State of Tennessee,' 167 N.L.R.B., at 691, has no 'warrant in the record' and no 'reasonable basis in law.' NLRB v. Hearst Publications, 322 U.S. 111, 131, 64 S.Ct. 851, 861, 88 L.Ed. 1170 (1944).
11
Respondent is one of nearly 270 utility districts established under the Utility District Law of 1937. Under that statute, Tennessee residents may create districts to provide a wide range of public services such as the furnishing of water, sewers, sewage disposal, police protection, fire protection, garbage collection, street lighting, parks, and recreational facilities as well as the distribution of natural gas. Tenn.Code Ann. § 6—2608 (Supp. 1970). Acting under the statute, 38 owners of real property submitted in 1957 a petition to the county court of Hawkins County requesting the incorporation of a utility district to distribute natural gas within a specified portion of the county. The county judge, after holding a required public hearing and making required findings that the 'public convenience and necessity requires the creation of the district,' and that 'the creation of the district is economically sound and desirable,' Tenn.Code Ann. § 6—2604 (Supp.1970), entered an order establishing the District. The judge's order and findings were appealable to Tennessee's appellate courts by any party 'having an interest in the subject-matter.' Tenn.Code Ann. § 6—2606 (1955).
12
To carry out its functions, the District is granted not only all the powers of a private corporation, Tenn.Code Ann. § 6—2610 (1955), but also 'all the powers necessary and requisite for the accomplishment of the purpose for which such district is created, capable of being delegated by the legislature.' Tenn.Code Ann. § 6 2612 (1955). This delegation includes the power of eminent domain, which the District may exercise even against other governmental entities. Tenn.Code Ann. § 6—2611 (1955). The District is operated on a nonprofit basis, and is declared by the statute to be 'a 'municipality' or public corporation in perpetuity under its corporate name and the same shall in that name be a body politic and corporate with power of perpetual succession, but without any power to levy or collect taxes.' Tenn.Code Ann. § 6—2607 (Supp.1970). The property and revenue of the District are exempted from all state, county, and municipal taxes, and the District's bonds are similarly exempt from such taxation, except for inheritance, transfer, and estate taxes. Tenn.Code Ann. § 6—2626 (1955).
13
The District's records are 'public records' and as such open for inspection. Tenn.Code Ann. § 6—2615 (Supp.1970). The District is required to publish its annual statement in a newspaper of general circulation, showing its financial condition, its earnings, and its method of setting rates. Tenn.Code Ann. § 6—2617 (Supp.1970). The statute requires the District's commissioners to hear any protest to its rates filed within 30 days of publication of the annual statement at a public hearing, and to make and to publish written findings as to the reasonableness of the rates. Tenn.Code Ann. § 6—2618 (1955). The commissioners' determination may be challenged in the county court, under procedures prescribed by the statute. Ibid.
14
The District's commissioners are initially appointed, from among persons nominated in the petition, by the county judge, who is an elected public official. Tenn.Code Ann. § 6—2604 (Supp.1970). The commissioners serve four-year terms4 and, contrary to the Board's finding that the State reserves no 'power to remove or otherwise discipline those responsible for the Employer's operations,' 167 N.L.R.B., at 692, are subject to removal under Tennessee's General Ouster Law, which provides procedures for removing public officials from office for misfeasance or nonfeasance. Tenn.Code Ann. § 8—2701 et seq. (1955); First Suburban Water Utility District v. McCanless, 177 Tenn., at 138, 146 S.W.2d, at 952. Proceedings under the law may be initiated by the Governor, the state attorney general, the county prosecutor, or ten citizens. Tenn.Code Ann. §§ 8—2708, 8 2709, 8—2710 (1955). When a vacancy occurs, the county judge appoints a new commissioner if the remaining two commissioners cannot agree upon a replacement. Tenn.Code Ann. § 6 2614 (Supp.1970). In large counties, all vacancies are filled by popular election. Ibid. The commissioners are generally empowered to conduct the District's business. They have the power to subpoena witnesses and to administer oaths in investigating District affairs, Tenn.Code Ann. § 6—2616(5) (1955), and they serve for only nominal compensation. Tenn.Code Ann. § 6—2615 (Supp.1970). Plainly, commissioners who are beholden to an elected public official for their appointment, and are subject to removal procedures applicable to all public officials, qualify as 'individuals who are responsible to public officials or to the general electorate' within the Board's test.
15
In such circumstances, the Board itself has recognized that authority to exercise the power of eminent domain weighs in favor of finding an entity to be a political subdivision. New Jersey Turnpike Authority, 33 L.R.R.M. 1528 (1954). We have noted that respondent's power of eminent domain may be exercised even against other governmental units. And the District is further given an extremely broad grant of 'all the powers necessary and requisite for the accomplishment of the purpose for which such district is created, capable of being delegated by the legislature.' Tenn.Code. Ann. § 6—2612 (1955). The District's 'public records' requirement and the automatic right to a public hearing and written 'decision' by the commissioners accorded to all users betoken a state, rather than a private, instrumentality. The commissioners' power of subpoena and their nominal compensation further suggest the public character of the District.
16
Moreover, a conclusion that the District is a political subdivision finds support in the treatment of the District under other federal laws. Income from its bonds is exempt from federal income tax, as income from an obligation of a 'political subdivision' under 26 U.S.C. § 103. Social Security benefits for the District's employees are provided through voluntary rather than mandatory coverage since the District is considered a political subdivision under the Social Security Act. 42 U.S.C. § 418.
17
Respondent is therefore an entity 'administered by individuals (the commissioners) who are responsible to public officials (an elected county judge)' and this together with the other factors mentioned satisfies us that its relationship to the State is such that respondent is a 'political subdivision' within the meaning of § 2(2) of the Act. Accordingly, the Court of Appeals' judgment denying enforcement of the Board's order is
18
Affirmed.
19
Mr. Justice STEWART, dissenting.
20
I agree with the Court that federal, rather than state, law governs the determination of whether an employer is a 'political subdivision' of the State within the meaning of § 2(2) of the National Labor Relations Act, as amended, 29 U.S.C. § 152(2). But I cannot agree that the Board erred in this case in concluding that the respondent is not entitled to exemption under the Act.
21
In determining that the respondent Utility District was not a 'political subdivision' of the State, the Board followed its settled policy of weighing all relevant factors, with particular emphasis here on the circumstances that the District is neither 'created directly by the State' nor 'administered by State-appointed or elected officials' and is 'autonomous in the conduct of its day-to-day affairs.' On the other side, the Board gave less weight to the State's characterization of a utility district as an arm of the State for purposes of exemption from state taxes and conferral of the power of eminent domain.
22
This approach seems wholly acceptable to me, inasmuch as state tax exemption and the power of eminent domain are not attributes peculiar to political subdivisions nor attributes with any discernible impact on labor relations. Attributes which would implicate labor policy, such as the payment of wages out of public funds or restrictions upon the right of the employees to strike, are not present here.
23
The Court points to provisions that the records of the District be available for public inspection, and that the commissioners of the District hold hearings and make written findings. These factors are said to 'betoken a state, rather than a private, instrumentality.' The question, however, is not whether the District is a state instrumentality, but whether it is a 'political subdivision' of the State. And the provisions in question hardly go to that issue.
24
The Board's reasonable construction of the Act is entitled to great weight and it is not our function to weigh the facts de novo and displace its evaluation with our own. The Board here has made a reasoned decision which does not violence to the purposes of the Act. Accordingly, I would reverse the judgment of the Court of Appeals and remand the case with instructions to enforce the Board's order.
1
Section 2(2), 29 U.S.C. § 152(2), provides:
'The term 'employer' includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any corporation or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.'
2
Respondent agrees in its brief in this Court, p. 13, that state law is not controlling.
3
See 78 Cong.Rec. 10351 et seq.; Hearings on Labor Disputes Act before the House Committee on Labor, 74th Cong., 1st Sess., 179; 93 Cong.Rec. 6441 (Sen. Taft). See also C. Rhyne, Labor Unions and Municipal Employee Law 436—437 (1946); Vogel, What About the Rights of the Public Employee?, 1 Lab.L.J. 604, 612—615 (1950).
4
The commissioners' initial terms are staggered, with one commissioner appointed to a two-year term, one to a three-year term, and one to a four-year term. Tenn.Code Ann. § 6—2604 (Supp. 1970).
| 67
|
402 U.S. 637
91 S.Ct. 1704
29 L.Ed.2d 233
Adolfo PEREZ et ux., Petitioners,v.David H. CAMPBELL, Superintendent, Motor Vehicle Division, Arizona Highway Department, et al.
No. 5175.
Argued Jan. 19, 1971.
Decided June 1, 1971.
Syllabus
The provision that 'discharge in bankruptcy following the rendering of any such judgment (as a result of an automobile accident) shall not relieve the judgment debtor from any of the requirements of this article,' contained in Ariz.Rev.Stat. § 28 1163(B), part of the Motor Vehicle Safety Responsibility Act, which the Arizona courts have construed as having as 'its principal purpose the protection of the public using the highways from financial hardship which may result from the use of automobiles by financially irresponsible persons,' directly conflicts with § 17 of the Bankruptcy Act, which states that a discharge in bankruptcy fully discharges all but certain specified judgments, and is thus unconstitutional as violative of the Supremacy Clause. Kesler v. Department of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641, and Reitz v. Mealey, 314 U.S. 33, 62 S.Ct. 24, 86 L.Ed. 21, have no authoritative effect to the extent they are inconsistent with the controlling principle that state legislation that frustrates the full effectiveness of federal law is invalidated by the Supremacy Clause. Pp. 644—656.
421 F.2d 619, reversed and remanded.
Anthony B. Ching, Tucson, Ariz., for petitioners.
Robert H. Schlosser, Phoenix, Ariz., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
This case raises an important issue concerning the construction of the Supremacy Clause of the Constitution—whether Ariz.Rev.Stat.Ann. § 28—1163 (B) (1956), which is part of Arizona's Motor Vehicle Safety Responsibility Act, is invalid under that clause as being in conflict with the mandate of § 17 of the Bankruptcy Act, 11 U.S.C. § 35, providing that receipt of a discharge in bankruptcy fully discharges all but certain specified judgments. The courts below, concluding that this case was controlled by Kesler v. Department of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641 (1962), and Reitz v. Mealey, 314 U.S. 33, 62 S.Ct. 24, 86 L.Ed. 21 (1941), two earlier opinions of cthis Court dealing with alleged conflicts between the Bankruptcy Act and state financial responsibility laws, ruled against the claim of conflict and upheld the Arizona statute.
2
On July 8, 1965, petitioner Adolfo Perez, driving a car registered in his name, was involved in an automobile accident in Tucson, Arizona. The Perez automobile was not covered by liability insurance at the time of the collision. The driver of the second car was the minor daughter of Leonard Pinkerton, and in September 1966 the Pinkertons sued Mr. and Mrs. Perez in state court for personal injuries and property damage sustained in the accident. On October 31, 1967, the petitioners confessed judgment in this suit, and a judgment order was entered against them on November 8, 1967, for $2,425.98 plus court costs.
3
Mr. and Mrs. Perez each filed a voluntary petition in bankruptcy in Federal District Court on November 6, 1967. Each of them duly scheduled the judgment debt to the Pinkertons. The District Court entered orders on July 8, 1968, discharging both Mr. and Mrs. Perez from all debts and claims provable against their estates, including the Pinkerton judgment. 11 U.S.C. § 35; Lewis v. Roberts, 267 U.S. 467, 45 S.Ct. 357, 69 L.Ed. 739 (1925).
4
During the pendency of the bankruptcy proceedings, the provisions of the Arizona Motor Vehicle Safety Responsibility Act came into play. Although only one provision of the Arizona Act is relevant to the issue presented by this case, it is appropriate to describe the statutory scheme in some detail. The Arizona statute is based on the Uniform Motor Vehicle Safety Responsibility Act promulgated by the National Conference on Street and Highway Safety.1 Articles 1 and 2 of the Act deal, respectively, with definitional matters and administration.
5
The substantive provisions begin in Art. 3, which requires the posting of financial security of those involved in accidents. Section 28—1141 of that article requires suspension of licenses for unlawful failure to repot accidents, and § 28—1142 (Supp.1970 1971) provides that within 60 days of the receipt of an accident report the Superintendent of the Motor Vehicle Division of the Highway Department shall suspend the driver's license of the operator and the registration of the owner of a car involved in an accident 'unless such operator or owner or both shall deposit security in a sum which is sufficient in the judgment of the superintendent to satisfy any judgment or judgments for damages resulting from the accident as may be recovered against the operator or owner.' Under the same section, notice of such suspension and the amount of security required must be sent to the owner and operator not less than 10 days prior to the effective date of the suspension. This section does not apply if the owner or the operator carried liability insurance or some other covering bond at the time of the accident, or if such individual had previously qualified as a self-insurer under § 28—1222. Other exceptions to the requirement that security be posted are stated in § 28—1143.2 If none of these exceptions applies, the suspension continues until: (1) the person whose privileges were suspended deposits the security required under § 28—1142 (Supp.1970—1971); (2) one year elapses from the date of the accident and the person whose privileges were suspended files proof with the Superintendent that no one has initiated an action for damages arising from the accident; (3) evidence is filed with the superintendent that a release from liability, an adjudication of nonliability, a confession of judgment, or some other written settlement agreement has been entered.3 As far as the record in the instant case shows, the provisions of Art. 3 were not invoked against petitioners, and the constitutional validity of these provisions is, of course, not before us for decision.
6
Article 4 of the Arizona Act, which includes the only provision at issue here, deals with suspension of licenses and registrations for nonpayment of judgments. Interestingly, it is only when the judgment debtor in an automobile accident lawsuit usually an owner-operator like Mr. Perez—fails to respond to a judgment entered against him that he must overcome two hurdles in order to regain his driving privileges. Section 28—1161, the first section of Art. 4, requires the state court clerk or judge, when a judgment4 has remained unsatisfied for 60 days after entry, to forward a certified copy of the judgment to the superintendent.5 This was done in the present case, and on March 13, 1968, Mr. and Mrs. Perez were served with notice that their drivers' licenses and registration were suspended pursuant to § 28—1162(A).6 Under other provisions of Art. 4, such suspension is to continue until the judgment is paid,7 and § 28—1163(B) specifically provides that '(a) discharge in bankruptcy following the rendering of any such judgment shall not relieve the judgment debtor from any of the requirements of this article.' In addition to requiring satisfaction of the judgment debt, § 28—1163(A) provides that the license and registration 'shall remain suspended and shall not be renewed, nor shall any license or registration be thereafter issued in the name of the person * * * until the person gives proof of financial responsibility' for a future period.8 Again, the validity of this limited requirement that some drivers post evidence of financial responsibility for the future in order to regain driving privileges is not questioned here. Nor is the broader issue of whether a State may require proof of financial responsibility as a precondition for granting driving privileges to anyone before us for decision. What is at issue here is the power of a State to include as part of this comprehensive enactment designed to secure compensation for automobile accident victims a section providing that a discharge in bankruptcy of the automobile accident tort judgment shall have no effect on the judgment debtor's obligation to repay the judgment creditor, at least insofar as such repayment may be enforced by the withholding of driving privileges by the State. It was that question among others, which petitioners raised after suspension of their licenses and registration by filing a complaint in Federal District Court seeking declaratory and injunctive relief and requesting a three-judge court. They asserted several constitutional violations, and also alleged that s28—1163(B) was in direct conflict with the Bankruptcy Act and was thus violative of the Supremacy Clause of the Constitution.9 In support of their complaint, Mr. and Mrs. Perez filed affidavits stating that the suspension of their licenses and registration worked both physical and financial hardship upon them and their children. The District Judge granted the petitioners leave to proceed in forma pauperis, but thereafter granted the respondents' motion to dismiss the complaint for failure to state a claim upon which relief could be granted, citing Kesler and Reitz.10 The Court of Appeals affirmed, relying on the same two decisions. 421 F.2d 619 (CA9 1970). We granted certiorari. 400 U.S. 818, 91 S.Ct. 71, 27 L.Ed.2d 45 (1970).
7
* Deciding whether a state statute is in conflict with a federal statute and hence invalid under the Supremacy Clause is essentially a two-step process of first ascertaining the construction of the two statutes and then determining the constitutional question whether they are in conflict. In the present case, both statutes have been authoritatively construed. In Schecter v. Killingsworth, 93 Ariz. 273, 380 P.2d 136 (1963), the Supreme Court of Arizona held that '(t)he Financial Responsibility Act has for its principal purpose the protection of the public using the highways from financial hardship which may result from the use of automobiles by financially irresponsible persons.' 93 Ariz., at 280, 380 P.2d, at 140. The Arizona court has consistently adhered to this construction of its legislation, see Camacho v. Gardner, 104 Ariz. 555, 558, 456 P.2d 925, 928 (1969); New York Underwriters Ins. Co. v. Superior Court, 104 Ariz. 544, 456 P.2d 914 (1969); Sandoval v. Chenoweth, 102 Ariz. 241, 243, 428 P.2d 98, 100 (1967); Farmer v. Killingsworth, 102 Ariz. 44, 47, 424 P.2d 172, 175 (1967); Hastings v. Thurston, 100 Ariz. 302, 306, 413 P.2d 767, 770 (1966); Jenkins v. Mayflower Ins. Exchange, 93 Ariz. 287, 290, 380 P.2d 145, 147 (1963), and we are bound by its rulings. See, e.g., General Trading Co. v. State Tax Comm'n, 322 U.S. 335, 337, 64 S.Ct. 1028, 1029, 88 L.Ed. 1309 (1944). Although the dissent seems unwilling to accept the Arizona Supreme Court's construction of the statute as expressive of the Act's primary purpose11 and indeed characterizes that construction as unfortunate, post, at 667, a reading of the provisions outlined above leaves the impression that the Arizona Court's description of the statutory purpose is not only logical but persuasive. The sole emphasis in the Act is one of providing leverage for the collection of damages from drivers who either admit that they are at fault or are adjudged negligent. The victim of another driver's carelessness, if he so desires, can exclude the superintendent entirely from the process of 'deterring' a repetition of that driver's negligence.12 Further, if an accident is litigated and a special verdict that the defendant was negligent and the plaintiff contributorily negligent is entered, the result in Arizona, as in many other States, is that there is no liability for damages arising from the accident. Heimke v. Munoz, 106 Ariz. 26, 470 P.2d 107 (1970); McDowell v. Davis, 104 Ariz. 69, 448 P.2d 869 (1968). Under the Safety Responsibility Act, the apparent result of such a judgment is that no consequences are visited upon either driver although both have been found to have driven carelessly. See Ariz.Rev.Stat.Ann. §§ 28 1143(A)(4), 28—1144(3). Moreover, there are no provisions requiring drivers proved to be careless to stay off the roads for a period of time. Nor are there provisions requiring drivers who have caused accidents to attend some kind of driver improvement course, a technique that is not unfamiliar in sentencing for traffic offenses.
8
Turning to the federal statute, the construction of the Bankruptcy Act is similarly clear. This Court on numerous occasions has stated that '(o)ne of the primary purposes of the Bankruptcy Act' is to give debtors 'a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt.' Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934). Accord, e.g., Harris v. Zion's Savings Bank & Trust Co., 317 U.S. 447, 451, 63 S.Ct. 354, 357, 87 L.Ed. 390 (1943); Stellwagen v. Clum, 245 U.S. 605, 617, 38 S.Ct. 215, 218, 62 L.Ed. 507 (1918); Williams v. United States Fidelity & Guaranty Co., 236 U.S. 549, 554—555, 35 S.Ct. 289, 290, 59 L.Ed. 713 (1915). There can be no doubt, given Lewis v. Roberts, 267 U.S. 467, 45 S.Ct. 357, 69 L.Ed. 739 (1925), that Congress intended this 'new opportunity' to include freedom from most kinds of preexisting tort judgments.
II
9
With the construction of both statutes clearly established, we proceed immediately to the constitutional question whether a state statute that protects judgment creditors from 'financially irresponsible persons' is in conflict with a federal statute that gives discharged debtors a new start 'unhampered by the pressure and discouragement of preexisting debt.' As early as Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (1824), Chief Justice Marshall stated the governing principle—that 'acts of the State Legislatures * * * (which) interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution,' are invalid under the Supremacy Clause. Id., at 211 (emphasis added). Three decades ago Mr. Justice Black, after reviewing the precedents, wrote in a similar vein that, while '(t)his Court, in considering the validity of state laws in the light of treaties or federal laws touching the same subject, ha(d) made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference(,) * * * (i)n the final analysis,' our function is to determine whether a challenged state statute 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). Since Hines the Court has frequently adhered to this articulation of the meaning of the Supremacy Clause. See, e.g., Nash v. Florida Industrial Comm'n, 389 U.S. 235, 240, 88 S.Ct. 362, 366, 19 L.Ed.2d 438 (1967); Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 229, 84 S.Ct. 784, 787, 11 L.Ed.2d 661 (1964); Colorado Anti-Discrimination Comm'n v. Continental Air Lines, Inc., 372 U.S. 714, 722, 83 S.Ct. 1022, 1026, 10 L.Ed.2d 84 (1963) (dictum); Free v. Bland, 369 U.S. 663, 666, 82 S.Ct. 1089, 1092, 8 L.Ed.2d 180 (1962); Hill v. Florida, 325 U.S. 538, 542—543, 65 S.Ct. 1373, 1375—1376, 89 L.Ed. 1782 (1945); Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 176, 63 S.Ct. 172, 173, 87 L.Ed. 165 (1942). Indeed, in Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), a recent case in which the Court was closely divided, all nine Justices accepted the Hines test. Id., at 141, 83 S.Ct., at 1217 (opinion of the Court), 165, 83 S.Ct., at 1229 (dissenting opinion).
10
Both Kesler13 and Reitz, however, ignored this controlling principle. The Court in Kesler conceded that Utah's financial responsibility law left 'the bankrupt to some extent burdened by the discharged debt,' 369 U.S., at 171, 82 S.Ct., at 818, made 'it more probable that the debt will be paid despite the discharge,' id., at 173, 82 S.Ct., at 819, and thereby made 'some inroad * * * on the consequences of bankruptcy. * * *' Id., at 171, 82 S.Ct., at 818. Utah's statute, in short, frustrated Congress' policy of giving discharged debtors a new start. But the Kesler majority was not concerned by this frustration. In upholding the statute, the majority opinion did not look to the effect of the legislation but simply asserted that the statute was 'not an Act for the Relief of Mulcted Creditors,' id., at 174, 82 S.Ct., at 819, and was 'not designed to aid collection of debts but to enforce a policy against irresponsible driving. * * *' Id., at 169, 82 S.Ct., at 817. The majority, that is, looked to the purpose of the state legislation and upheld it because the purpose was not to circumvent the Bankruptcy Act but to promote highway safety; those in dissent, however, were concerned that, whatever the purpose of the Utah Act, its 'plain and inevitable effect * * * (was) to create a powerful weapon for collection of a debt from which (the) bankrupt (had) been relased by federal law.' Id., at 183, 82 S.Ct., at 824. Such a result, they argued, left 'the States free * * * to impair * * * an important and historic policy of this Nation * * * embodied in its bankruptcy laws.' Id., at 185, 82 S.Ct., at 825.
11
The opinion of the Court in Reitz was similarly concerned, not with the fact that New York's financial responsibility law frustrated the operation of the Bankruptcy Act, but with the purpose of the law, which was divined as the promotion of highway safety. As the Court said:
12
'The penalty which § 94—b imposes for injury due to careless driving is not for the protection of the creditor merely but to enforce a public policy that irresponsible drivers shall not, with impunity, be allowed to injure their fellows. The scheme of the legislation would be frustrated if the reckless driver were permitted to escape its provisions by the simple expedient of voluntary bankruptcy, and, accordingly, the legislature declared that a discharge in bankruptcy should not interfere with the operation of the statute. Such legislation is not in derogation of the Bankruptcy Act. Rather it is an enforcement of permissible state policy touching highway safety.' 314 U.S., at 37, 62 S.Ct., at 27.
13
The dissenting opinion written by Mr. Justice Douglas for himself and three others noted that the New York legislation put 'the bankrupt * * * at the creditor's mercy,' with the results that '(i)n practical effect the bankrupt may be in as bad, or even worse, a position than if the state had made it possible for a creditor to attach his future wages' and that '(b)ankruptcy * * * (was not) the sanctuary for hapless debtors which Congress intended.' Id., at 41, 62 S.Ct., at 29.
14
We can no longer adhere to the aberrational doctrine of Kesler and Reitz that state law may frustrate the operation of federal law as long as the state legislature in passing its law had some purpose in mind other than one of frustration. Apart from the fact that it is at odds with the approach taken in nearly all our Supremacy Clause cases, such a doctrine would enable state legislatures to nullify nearly all unwanted federal legislation by simply publishing a legislative committee report articulating some state interest or policy—other than frustration of the federal objective—that would be tangentially furthered by the proposed state law. In view of the consequences, we certainly would not apply the Kesler doctrine in all Supremacy Clause cases. Although it is possible to argue that Kesler and Reitz are somehow confined to cases involving either bankruptcy or highway safety, analysis discloses no reason why the States should have broader power to nullify federal law in these fields than in others. Thus, we conclude that Kesler and Reitz can have no authoritative effect to the extent they are inconsistent with the controlling principle that any state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause. Section 28—1163(B) thus may not stand.
III
15
Even accepting the Supremacy Clause analysis of Kesler and Reitz—that is, looking to the purpose rather than the effect of state laws—those decisions are not dispositive of this case. Just as Kesler went a step beyond Reitz and broadened the holding to the earlier case, 369 U.S., at 184, 82 S.Ct., at 825 (dissenting opinion), so in the present case the respondents asked the courts below and this Court to expand the holdings of the two previous cases. The distinction between Kesler and Reitz and this case lies in the State's expressed legislative purpose.
16
Kesler and Reitz were aberrational in their treatment of this question as well. The majority opinions in both cases assumed, without citation of state court authority or any indication that such precedent was unavailable, that the purpose of the state financial responsibility laws there under attack was not provision of relief to creditors but rather deterrence of irresponsible driving. The assumption was, in effect, that all state legislatures which had enacted provisions such as § 28—1163(B) had concluded that an uninsured motorist about to embark in his car would be more careful on the road if he did not have available what the majority in Kesler cavalierly characterized as an 'easy refuge in bankruptcy.' 369 U.S., at 173, 82 S.Ct., at 819.14 Passing the question of whether the Court gave sufficient attention to binding state interpretations of state legislative purpose and conceding that it employed proper technique in divining as obvious from their face the aim of the state enactments, the present case raises doubts about whether the Court was correct even in its basic assumptions. The Arizona Supreme Court has declared that Arizona's Safety Responsibility Act 'has for its principal purpose the protection of the public * * * from financial hardship' resulting from involvement in traffic accidents with uninsured motorists unable to respond to a judgment. Schecter v. Killingsworth, 93 Ariz., at 280, 380 P.2d, at 140. The Court in Kesler was able to declare, although the source of support is unclear, that the Utah statute could be upheld because it was 'not an Act for the Relief of Mulcted Creditors' or a statute 'designed to aid collection of debts.' 369 U.S., at 174, 169, 82 S.Ct., at 819, 817. But here the respondents urge us to uphold precisely the sort of statute that Kesler would have stricken down—one with a declared purpose to protect judgment creditors 'from financial hardship' by giving them a powerful weapon with which to force bankrupts to pay their debts despite their discharge. Whereas the Acts in Kesler and Reitz had the effect of frustrating federal law but had, the Court said, no such purpose, the Arizona Act has both that effect and that purpose. Believing as we do that Kesler and Reitz are not in harmony with sound constitutional principle, they certainly should not be extended to cover this new and distinguishable case.
IV
17
One final argument merits discussion. The dissent points out that the District of Columbia Code contains an anti-discharge provision similar to that included in the Arizona Act. Motor Vehicle Safety Responsibility Act of the District of Columbia, D.C.Code, Ann. § 40—464 (1967), 68 Stat. 132. In light of our decision today, the sum of the argument is to draw into question the constitutional validity of the District's anti-discharge section, for as noted in the dissent the Constitution confers upon Congress the power '(T)o establish * * * uniform Laws on the subject of Bankruptcies throughout the United States.' U.S.Const., Art. I, § 8, cl. 4 (emphasis added). It is asserted that 'Congress must have regarded the two statutes as consistent and compatible,' post, at 665, but such an argument assumes a modicum of legislative attention to the question of consistency. The D.C.Code section does, of course, refer specifically to discharges, but its passage may at most be viewed as evidencing an opinion of Congress on the meaning of the general discharge provision enacted by an earlier Congress and interpreted by this Court as early as 1925. See Lewis v. Roberts, supra. In fact, in passing the initial and amended version of the District of Columbia financial responsibility law, Congress gave no attention to the interaction of the anti-discharge section with the Bankruptcy Act.15 Moreover, the legislative history is quite clear that when Congress dealt with the subject of financial responsibility laws for the District, it based its work upon the efforts of the uniform commissioners which had won enactment in other States.16
18
Had Congress focused on the interaction between this minor subsection of the rather lengthy financial responsibility act and the discharge provision of the Bankruptcy Act, it would have been immediately apparent to the legislators that the only constitutional method for so defining the scope and effect of a discharge in bankruptcy was by amendment of the Bankruptcy Act, which by its terms is a uniform statute applicable in the States, Territories, and the District of Columbia. 11 U.S.C. § 1(29). To follow any other course would obviously be to legislate in such a way that a discharge in bankruptcy means one thing in the District of Columbia and something else in the States—depending on state law—a result explicitly prohibited by the uniformity requirement in the constitutional authorization to Congress to enact bankruptcy legislation.
V
19
From the foregoing, we think it clear that § 28—1163(B) of the Arizona Safety Responsibility Act is constitutionally invalid. The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.
20
It is so ordered.
21
Reversed and remanded.
22
Mr. Justice BLACKMUN, joined by THE CHIEF JUSTICE, Mr. Justice HARLAN, and Mr. Justice STEWART.
23
I concur in the result as to petitioner Emma Perez and dissent as to petitioner Adolfo Perez.
24
* The slaughter on the highways of this Nation exceeds the death toll of all our wars.1 The country is fragmented about the current conflict in Southeast Asia, but I detect little genuine public concern about what takes place in our very midst and on our daily travel routes. See Tate v. Short, 401 U.S. 395, 401, 91 S.Ct. 668, 672, 28 L.Ed.2d 130 (1971) (concurring opinion).
25
This being so, it is a matter of deep concern to me that today the Court lightly brushes aside and overrules two cases where it had upheld a representative attempt by the States to regulate traffic and where the Court had considered and rejected the very Supremacy Clause argument that it now discovers to be so persuasive.2
II
26
I think it is desirable to stress certain factual details. The facts, of course, are only alleged, but for purposes of the motion to dismiss, we are to accept them as true. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964).
27
Arizona is a community property state. Adolfo and Emma Perez are husband and wife. They were resident citizens of Arizona at the time of the accident in Tucson in July 1965. Mr. Perez was driving an automobile registered in his name. He was alone. Mrs. Perez was not with him and had nothing to do with her husband's operation of the car on that day. The automobile, however, was the property of the marital community.
28
Accompanying, and supposedly supportive of, the Perez complaint in the present suit, were affidavits of Mr. and Mrs. Perez. These affidavits asserted that the Perezes had four minor children ages 6 to 17; that Emma is a housewife and not otherwise gainfully employed; that Emma's inability to drive has required their two older children, aged 17 and 14, to walk one and a half miles to high school and the third child, aged 9, one mile to elementary school, with consequent nosebleeding; that Emma's inability to drive has caused inconvenience and financial injury; and that Adolfo's inability to drive has caused inconvenience because he must rely on others for transportation or use public facilities or walk.
III
The Statutory Plan
29
Arizona has a comprehensive statutory plan for the regulation of vehicles upon its highways. Ariz.Rev.Stat.Ann., Tit. 28. Among the State's efforts to assure responsibility in this area of increasing national concern are its Uniform Motor Vehicle Operators' and Chauffeurs' License Act (c. 4), its Uniform Act Regulating Traffic on Highways (c. 6), and its Uniform Motor Vehicle Safety Responsibility Act (c. 7).3
30
The challenged § 28—1163(B) is a part of the Motor Vehicle Safety Responsibility Act. The Act's provisions are not unfamiliar. There is imposed upon the Motor Vehicle Division Superintendent the duty to suspend the license of each operator, and the registration of each owner, of a motor vehicle involved in an accident resulting in bodily injury or death or property damage to any one person in excess of $100, except, among other situations, where proof of financial responsibility, as by the deposit of appropriate security or by the presence of a liability policy of stated minimum coverage, is afforded. §§ 28—1142 (Supp.1970—1971), 28—1143, and 28—1167. The suspension, once imposed, remains until the required security is deposited or until one year has elapsed and no action for damages has been instituted. § 28—1144. If the registrant or operator fails, within 60 days, to satisfy an adverse motor vehicle final judgment, as defined in § 28—1102(2) (Supp.1970—1971), the court clerk has the duty to notify the Superintendent and the latter to suspend the license and registration of the judgment debtor. §§ 28 1161(A) and 28—1162(A). But if the judgment creditor consents in writing that the debtor be allowed to retain his license and registration, the Superintendent in his discretion may grant that privilege. § 28—1162(B). Otherwise the suspension remains in effect until the judgment is satisfied. § 1163(A). Payments of stated amounts are deemed to satisfy the judgment, § 28—1164 (Supp.1970—1971), and court-approved installment payment of the judgment will preserve the license and registration, § 28—1165.
IV
Adolfo Perez
31
Inasmuch as the case is before us on the motion of defendants below to dismiss the Perez complaint that alleged Adolfo's driving alone, the collision, and the judgment in favor of the Pinkertons, it is established, for present purposes, that the Pinkerton judgment was based on Adolfo's negligence in driving the Perez vehicle.
32
Adolfo emphasizes, and I recognize, that under Art. I, § 8, cl. 4, of the Constitution, Congress has possessed the power to establish 'uniform Laws on the subject of Bankruptcies throughout the United States'; that, of course, this power, when exercised, as it has been since 1800, is 'exclusive,' New Lamp Chimney Co. v. Ansonia Brass & Copper Co., 91 U.S. 656, 661, 23 L.Ed. 336 (1876), and 'unrestricted and paramount,' International Shoe Co. v. Pinkus, 278 U.S. 261, 265, 49 S.Ct. 108, 110, 73 L.Ed. 318 (1929); that one of the purposes of the Bankruptcy Act is to 'relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh * * *,' Williams v. United States Fidelity & Guaranty Co., 236 U.S. 549, 554—555, 35 S.Ct. 289, 290, 59 L.Ed. 713 (1915); and that a bankrupt by his discharge receives 'a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt,' Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934).
33
From these general and accepted principles it is argued that § 28—1163(B), with its insistence upon post-discharge payment as a condition for license and registration restoration, is violative of the Bankruptcy Act and, thus, of the Supremacy Clause.
34
As Mr. Perez acknowledges in his brief here, the argument is not new. It was raised with respect to a New York statute in Reitz v. Mealey, 314 U.S. 33, 62 S.Ct. 24, 86 L.Ed. 21 (1941), and was rejected there by a five-to-four vote:
35
'The use of the public highways by motor vehicles, with its consequent dangers, renders the reasonableness and necessity of regulation apparent. The universal practice is to register ownership of automobiles and to license their drivers. Any appropriate means adopted by the states to insure competence and care on the part of its licensees and to protect others using the highway is consonant with due process. * * *
36
'The penalty which § 94—b imposes for injury due to careless driving is not for the protection of the creditor merely, but to enforce a public policy that irresponsible drivers shall not, with impunity, be allowed to injure their fellows. The scheme of the legislation would be frustrated if the reckless driver were permitted to escape its provisions by the simple expedient of voluntary bankruptcy, and, accordingly, the legislature declared that a discharge in bankruptcy should not interfere with the operation of the statute. Such legislation is not in derogation of the Bankruptcy Act. Rather it is an enforcement of permissible state policy touching highway safety.' 314 U.S., at 36—37, 62 S.Ct., at 26 27.
37
Left specifically unanswered in that case, but acknowledged as a 'serious question,' 314 U.S., at 38, 62 S.Ct., at 27, was the claim that interim amendments of the statutes gave the creditor control over the initiation and duration of the suspension and thus violated the Bankruptcy Act. The dissenters, speaking through Mr. Justice Douglas, concluded that that constitutional issue 'cannot be escaped * * * unless we are to overlook the realities of collection methods.' 314 U.S., at 43, 62 S.Ct., at 30.
38
Nine years ago, the same argument again was advanced, this time with respect to Utah's Motor Vehicle Safety Responsibility Act, and again was rejected. Kesler v. Department of Public Safety, 369 U.S. 153, 158—174, 82 S.Ct. 807, 811—820, 7 L.Ed.2d 641 (1962). There, Utah's provisions relating to duration of suspension and restoration, more stringent than those of New York, were challenged. It was claimed that the statutes made the State a 'collecting agent for the creditor rather than furthering an interest in highway safety,' and that suspension that could be perpetual 'only renders the collection pressure more effective.' 369 U.S., at 169, 82 S.Ct., at 817. There was a troublesome jurisdictional issue in the case, the decision as to which was later overruled, Swift & Co. v. Wickham, 382 U.S. 111, 124—129, 86 S.Ct. 258, 265—268, 15 L.Ed.2d 194 (1965), but on the merits the Court, by a five-to-three vote, sustained all the Utah statutes then under attack:4
39
'But the lesson Zavelo (v. Reeves, 227 U.S. 625, 33 S.Ct. 365, 57 L.Ed. 676 (1913)) and Spalding (v. New York ex rel. Backus, 4 How. 21, 11 L.Ed. 858 (1845)) teach is that the Bankruptcy Act does not forbid a State to attach any consequence whatsoever to a debt which has been discharged.
40
'The Utah Safety Responsibility Act leaves the bankrupt to some extent burdened by the discharged debt. Certainly some inroad is made on the consequences of bankruptcy if the creditor can exert pressure to recoup a discharged debt, or part of it, through the leverage of the State's licensing and registration power. But the exercise of this power is deemed vital to the State's well-being, and, from the point of view of its interests, is wholly unrelated to the considerations which propelled Congress to enact a national bankruptcy law. There are here overlapping interests which cannot be uncritically resolved by exclusive regard to the money consequences of enforcing a widely adopted measure for safeguarding life and safety.
41
'* * * At the heart of the matter are the complicated demands of our federalism.
42
'Are the differences between the Utah statute and that of New York so significant as to make a constitutionally decisive difference? A State may properly decide, as forty-five have done, that the prospect of a judgment that must be paid in order to regain driving privileges serves as a substantial deterrent to unsafe driving. We held in Reitz that it might impose this requirement despite a discharge, in order not to exempt some drivers from appropriate protection of public safety by easy refuge in bankruptcy. * * * To whatever extent these provisions make it more probable that the debt will be paid despite the discharge, each no less reflects the State's important deterrent interest. Congress had no thought of amending the Bankruptcy Act when it adopted this law for the District of Columbia; we do not believe Utah's identical statute conflicts with it either.
43
'Utah is not using its police power as a devious collecting agency under the pressure of organized creditors. Victims of careless car drivers are a wholly diffused group of shifting and uncertain composition, not even remotely united by a common financial interest. The Safety Responsibility Act is not an Act for the Relief of Mulcted Creditors. It is not directed to bankrupts as such. Though in a particular case a discharged bankrupt who wants to have his rightfully suspended license and registration restored may have to pay the amount of a discharged debt, or part of it, the bearing of the statute on the purposes served by bankruptcy legislation is essentially tangential.' 369 U.S., at 170—174, 82 S.Ct., at 818—820 (footnotes omitted).
44
Mr. Justice Black, joined by Mr. Justice Douglas dissented on the ground that Utah Code Ann. § 41—12—15 (1953), essentially identical to Arizona's § 28—1163(B), operated to deny the judgment debtor the federal immunity given him by § 17 of the Bankruptcy Act and, hence, violated the Supremacy Clause. 369 U.S., at 182—185, 82 S.Ct., at 824—825.
45
The Perezes in their brief, p. 7, acknowledge that the Arizona statutes challenged here 'are not unlike the Utah ones discussed in Kesler.' Accordingly, Adolfo Perez is forced to urge that Reitz and the remaining portion of Kesler that bears upon the subject to overruled. The Court bows to that argument.
46
I am not prepared to overrule those two cases and to undermine their control over Adolfo Perez' posture here. I would adhere to the rulings and I would hold that the States have an appropriate and legitimate concern with highway safety; that the means Arizona has adopted with respect to one in Adolfo's position (that is, the driver whose negligence has caused harm to others and whose judgment debt based on that negligence remains unsatisfied) in its attempt to assure driving competence and care on the part of its licensees, as well as to protect others, is appropriate state legislation; and that the Arizona statute, like its Utah counterpart, despite the tangential effect upon bankruptcy, does not operate in derogation of the Bankruptcy Act or conflict with it to the extent it may rightly be said to violate the Supremacy Clause.
47
Other factors of significance are also to be noted:
48
1. The Court struggles to explain away the paralled District of Columbia situation installed by Congress itself. Section 40—464 of the D.C.Code Ann. (1967) in all pertinent parts is identical with Arizona's § 28—1163(B). The only difference is in the final word, namely, 'article' in the Arizona statute and 'chapter' in the District's. The District of Columbia statute was enacted as § 48 of Pub.Law 365 of May 25, 1954, effective one year later, 68 Stat. 132. This is long after the Bankruptcy Act was placed on the books and, indeed, long after this Court's decision in Lewis v. Roberts, 267 U.S. 467, 45 S.Ct. 357, 69 L.Ed. 739 (1925), that a personal injury judgment is a provable claim in bankruptcy. Surely, as the Court noted in Kesler, 369 U.S., at 173 174, 82 S.Ct., at 819, 'Congress had no thought of amending the Bankruptcy Act when it adopted this law for the District of Columbia.' See Lee v. England, 206 F.Supp. 957 (DC 1962). Congress must have regarded the two statutes as consistent and compatible, and cannot have thought otherwise for the last 35 years.5 If the statutes truly are in tension, then I would suppose that the later one, that is, § 40—464, would be the one to prevail. Gibson v. United States, 194 U.S. 182, 192, 24 S.Ct. 613, 616, 48 L.Ed. 926 (1904). But, if so, we then have something less than the 'uniform Laws on the subject of Bankruptcies throughout the United States' that Art. I, § 8, cl. 4, of the Constitution commands, for the law would be one way in Arizona (and, by the present overruling of Reitz and Kesler, in New York and in Utah) and the other way in the District of Columbia. Unfortunately, such is the dilemma in which the Court's decision today leaves us.
49
2. Arizona's § 28—1163(B) also has its counterparts in the statutes of no less than 44 other States.6 It is, after all, or purports to be, a uniform Act. I suspect the Court's decision today will astonish those members of the Congress who were responsible for the District of Columbia Code provision, and will equally astonish the legislatures of those 44 States that absorbed assurance from Reitz and Kesler that the provision withstands constitutional attack.
50
3. The Court rationalizes today's decision by saying that Kesler went beyond Reitz and that the present case goes beyond Kesler, and that that is too much. It would justify this by noting the Arizona Supreme Court's characterization of the Arizona statute as one for the protection of the public from financial hardship and by concluding, from this description, that the statute is not a public highway safety measure, but rather a financial one protective, I assume the implication is, of insurance companies. The Arizona court's characterization of its statute, I must concede, is not a fortunate one. However, I doubt that that court, in evolving that description, had any idea of the consequences to be wrought by this Court's decision today. I am not willing to say that the description in Schecter v. Killingsworth, 93 Ariz. 273, 380 P.2d 136 (1963), embraced the only purpose of the State's legislation. Section 28—1163(B) is a part of the State's Motor Vehicle Safety Responsibility Act and does not constitute an isolated subchapter of that Act concerned only with financial well-being of the victims of drivers' negligence. In any event, as the Court's opinion makes clear, the decision today would be the same however, the Arisona court had described its statute.
51
4. While stare decisis 'is no immutable principle,'7 as a glance at the Court's decisions over the last 35 years, or over almost any period for that matter, will disclose, it seems to me that the principle does have particular validity and application in a situation such as the one confronting the Court in this case. Here is a statute concerning motor vehicle responsibility, a substantive matter peculiarly within the competence of the State rather than the National Government. Here is a serious and conscientious attempt by a State to legislate and do something about the problem that, in terms of death and bodily injury and adverse civilian effect, is so alarming. Here is a statute widely adopted by the several States and legitimately assumed by the lawmakers of those States to be consistent with the Bankruptcy Act, an assumption rooted in positive, albeit divided, decision by this Court, not once, but twice. And here is a statute the Congress itself, the very author of the Bankruptcy Act, obviously considered consistent therewith. I fear that the Court today makes stare decisis meaningless and downgrades it to the level of a tool to be used or cast aside as convenience dictates. I doubt if Justices Roberts, Stone, Reed, Frankfurter, Murphy, Warren, Clark, Harlan, Brennan, and Stewart, who constituted the respective majorities on the merits in Reitz and Kesler, were all that wrong.
52
5. Adolfo's affidavit protestation of hardship goes no further than to assert a resulting reliance upon friends and neighbors or upon public transportation or upon walking to cover the seven miles from his home to his place of work; this is inconvenience, perhaps even in this modern day when we are inclined to equate convenience with necessity and to eschew what prior generations routinely accepted as part of the day's labor, but it falls far short of the 'great harm' and 'irreparable injury' that he otherwise asserts only in general and conclusory terms. Perez' professed inconvenience stands vividly and starkly in contrast with his victims' injuries. But as is so often the case, the victim, once damaged, is seemingly beyond concern. What seems to become important is the perpetrator's inconvenience.
53
6. It is conceded that Arizona constitutionally could prescribe liability insurance as a condition precedent to the issuance of a license and registration.
V
Emma Perez
54
Emma Perez' posture is entirely different. Except for possible emotional strain resulting from her husband's predicament, she was in no way involved in the Pinkerton accident. She was not present when it occurred and no negligence or nonfeasance on her part contributed to it. Emma thus finds herself in a position where, having done no wrong, she nevertheless is deprived of her operator's license. This comes about because the Perez vehicle concededly was community property under § 25—211(A), and because, for some reason, the judgment was confessed as to her as well as against her husband. As one amicus brief describes it, Emma, a fault-free driver, 'is without her license solely because she is the impecunious wife of an impecunious, negligent driver in a community property state.'
55
At this point a glance at the Arizona community property system perhaps is indicated. Emma Perez was a proper nominal defendant in the Pinkerton lawsuit, see Donato v. Fishburn, 90 Ariz. 210, 367 P.2d 245 (1961), but she was not a necessary party there. First National Bank of Mesa v. Reeves, 27 Ariz. 508, 517, 234 P. 556, 560 (1925); Bristol v. Moser, 55 Ariz. 185, 190—191, 99 P.2d 706, 709 (1940). However, a judgment against a marital community based upon the husband's tort committed without the wife's knowledge or consent does not bind her separate property. Ruth v. Rhodes, 66 Ariz. 129, 138, 185 P.2d 304, 310 (1947). The judgment would, of course, bind the community property vehicle to the extent permitted by Arizona law. See § 33—1124.
56
In Arizona during coverture personal property may be disposed of only by the husband. § 25—211(B). The community personalty is subject to the husband's dominance in management and control. Mortensen v. Knight, 81 Ariz. 325, 334, 305 P.2d 463, 469 (1956). The wife has no power to make contracts binding the common property. § 25—214(A). Her power to contract is limited to necessaries for herself and the children. § 25—215. Thus, as the parties appear to agree, she could neither enter into a contract for the purchase of an automobile nor acquire insurance upon it except by use of her separate property.
57
The Court of Appeals ruled that Mrs. Perez' posture, as the innocent wife who had no connection with the negligent conduct that led to the confession and entry of judgment, was, under the logic of Kesler and Reitz, 'a distinction without a significant difference' even though 'she had no alternative.' 421 F.2d 619, 622—623. The court opined that the spouse can acquire an automobile with her separate funds and that negligent operation of it on separate business would then not call into question the liability of the other spouse. It described Emma's legal status as 'closely analogous' to that of the automobile owner who permits another person to drive, and it regarded as authority cases upholding a State's right to revoke the owner's license and registration after judgment had been entered against him and remains unsatisfied. The husband was described, under Arizona law, as the managing agent of the wife in the control of the community automobile, and 'the driver's licenses of both husband and wife are an integral part of the ball of wax, which is the basis of the Arizona community property laws.' The loss of her license 'is the price an Arizona wife must pay for negligent driving by her husband of the community vehicle' when the resulting judgment is not paid. 421 F.2d, at 624.
58
For what it is worth, Emma's affidavit is far more persuasive of hardship than Adolfo's. She relates the family automobile to the children and their medical needs and to family purchasing at distant discount stores. But I need not, and would not, decide her case on the representations in her affidavit.
59
I conclude that the reasoning of the Court of Appeals, in its application to Emma Perez and her operator's license, does not comport with the purpose and policy of the Bankruptcy Act and that it effects a result at odds with the Supremacy Clause. Emma's subordinate position with respect to the community's personal property, and her complete lack of connection with the Pinkerton accident and with the negligence that occasioned it, are strange accompaniments for the deprival of her operator's license. The nexus to the state police power, claimed to exist because of her marriage to the negligent Adolfo and the community property character of the accident vehicle, is, for me, elusive and unconvincing. The argument based on Arizona's appropriate concern with highway safety, that prompts me to adhere to the Reitz-Kesler rationale for Adolfo, is drained of all force and persuasion when applied to the innocent Emma. Despite the underlying community property legal theory, Emma had an incident of ownership in the family automobile only because it was acquired during coverture. She had no 'control' over Adolfo's use of the vehicle and she could not forbid his use as she might have been able to do were it her separate property. Thus, the state purpose in deterring the reckless driver and his unsafe driving has only undeserved punitive application to Emma. She is personally penalized not only with respect to the operation of the Perez car but also with respect to any automobile.
60
I therefore would hold that under these circumstances the State's action, under § 28—1163(B), in witholding from Emma her operator's license is not, within the language of Reitz, an appropriate means for Arizona 'to insure competence and care on the part of (Emma) and to protect others' using the highways, 314 U.S., at 36, 62 S.Ct., at 26, and that it interferes with the paramount federal interest in her bankruptcy discharge and violates the Supremacy Clause.
APPENDIX TO OPINION OF BLACKMUN, J.
MOTOR—VEHICLE DEATHS AND WAR DEATHS
61
From 1900 through 1969, motor-vehicle deaths in the U.S. totalled nearly 1,800,000. Deaths of U.S. military personnel in all wars are shown below. In making comparisons, it must be kept in mind that nearly everyone is exposed to motor-vehicle accidents but relatively few are exposed to war deaths.
62
U.S. Military Casualties in Principal Wars
Deaths____________________________________________
Nonfatal
War Total Battle Others* Wounds
Total ***1,146,000 643,052 ***503,200 **1,540,000
Revolutionary War (1775-83) 4,435 4,435 N.A. 6,188
War of 1812 (1812-15) 2,260 2,260 N.A. 4,505
Mexican War (1846-48) 13,283 1,733 11,550 4,152
Civil War (1861-65)
Union Forces 364,511 140,414 224,097 281,881
Confederate Forces 133,821 74,524 59,297 N.A.
Spanish-American War (1898) 2,446 385 2,061 1,662
World War I (1917-1918) 116,708 53,513 63,195 204,002
World War II (1941-45) 407,316 292,131 115,185 670,846
Korean War (1950-53) 54,246 33,629 20,617 103,284
Viet Nam War (1961-69) 47,251 40,028 7,223 262,799
-----------
Source: Office of Secretary of Defense.*** Rounded.* Includes deaths from disease, accidents, etc.** Incomplete and rounded. N.A. Not available.
63
Accident Facts 63, published by the National Safety Council (1970 ed.).
64
The same publication, page 59, discloses that the annual death toll for motor vehicle accidents in the United States had exceeded 52,000 in each of the last five calendar years. Thus, the annual motor vehicle carnage approximates the total number of lives lost during the entire Vietnam conflict beginning in 1961.
1
See Reviser's Note, Ariz.Rev.Stat.Ann. § 28—1101.
2
Under Ariz.Rev.Stat.Ann. § 28—1143(A), the owner or operator of a car involved in an accident need not post security as required by § 28—1142 (Supp.1970—1971): (1) if the accident caused injury or damage to no person or property other than the owner's car or the operator's person; (2) if the car was parked when involved in the accident, unless it was parked illegally or did not carry a legally sufficient complement of lights; (3) if the car was being driven or was parked by another without the owner's express or implied permission; (4) if prior to date for suspension the person whose license or registration would be suspended files with the superintendent a release, a final adjudication of non-liability, a confession of judgment, or some other written settlement agreement providing for payment, in installments, of an agreed amount of damages with respect to claims arising from the accident; or (5) if the driver at the time of the accident was driving a vehicle owned, operated, or leased by his employer with the employer's permission; in that case the security and suspension provisions apply only to the owner-employer's registration of vehicles not covered by insurance or other bond.
3
This section further provides that the superintendent may employ suspension a second time as a means of enforcing payment should there be a default on installment obligations arising under a confession of judgment or a written settlement agreement. Ariz.Rev.Stat.Ann. § 28—1144 (3).
4
Ariz.Rev.Stat.Ann. § 28—1102 (Supp. 1970—1971) defines 'judgment,' for purposes of the Motor Vehicle Safety Responsibility Act, as 'any judgment which has become final * * *, upon a cause of action arising out of the ownership, maintenance or use of a motor vehicle, for damages * * * or upon a cause of action on an agreement of settlement for such damages.'
5
Under Ariz.Rev.Stat.Ann. § 28—1161(B), a similar notice must also be forwarded to officials in the home State of a nonresident judgment debtor.
6
'A. The superintendent upon receipt of a certified copy of a judgment, shall forthwith suspend the license and registration and nonresident operating privilege of a person against whom the judgment was rendered, except as otherwise provided in this section and § 28—1165.'
7
Ariz.Rev.Stat.Ann. § 28—1163(A). Ariz.Rev.Stat.Ann. § 28 1164 (Supp.1970—1971) defines when a judgment is 'paid.' Ariz.Rev.Stat.Ann. § 28—1165 sets forth a procedure for paying judgments in installments. Ariz.Rev.Stat.Ann. § 28—1162 (B) provides that if a creditor consents in writing and the debtor furnishes proof of financial responsibility, see Ariz.Rev.Stat.Ann. § 28—1167, the debtor's license and registration may be restored in the superintendent's discretion. After six months, however, the creditor's consent is revocable provided the judgment debt remains unpaid.
8
Sections 28—1167 through 28—1178 set forth the requirements for various forms of proof. Under § 28—1178, the judgment debtor is apparently able to regain his license and registration to operate a motor vehicle without proof of financial responsibility after three years from the date such proof was first required of him, if during that period the superintendent has not received any notice—and notice can come from other States of a conviction or forfeiture of bail which would require or permit the suspension or revocation of the driver's license and if the individual is not involved in litigation arising from an accident covered by the security he posted. If the driver required to post financial security does so, and is involved as an owner or operator in another accident resulting in personal injury or property damage within one year prior to the date he requets permission to cancel his security, the superintendent may not permit cancellation.
9
U.S.Const., Art. VI, cl. 2.
10
Mr. and Mrs. Perez also alleged in their complaint that certain provisions of the Arizona Act imposed involuntary servitude in violation of the Thirteenth Amendment, and denied Fourteenth Amendment due process and equal protection. They also claimed that portions of the Arizona Act operated as a bill of attainder in violation of Art. I, § 10, of the Constitution. The District Judge, in refusing to request the convening of a three-judge court, ruled that these constitutional claims were 'obviously insubstantial.' The Court of Appeals agreed. 421 F.2d 619, 625 (CA9 1970). Because of our resolution of this case, we express no opinion as to the substantiality of any of petitioners' other constitutional claims.
11
As discussed below, the majorities in Kesler and Reitz also seemed unwilling to be bound by, or even to look for, state court constructions of the financial responsibility laws before them. See
infra, at 652—654. It is clear, however, from even a cursory examination of decisions in other States that the conclusion of the Arizona Supreme Court as to the purpose of the financial responsibility law is by no means unusual. See, e.g., Sullivan v. Cheatham, 264 Ala. 71, 76, 84 So.2d 374, 378 (1955) ('The purpose of the (Motor Vehicle Safety-Responsibility) Act is clearly to require and establish financial responsibility for every owner or operator of a motor vehicle 'in any manner involved in an accident.' * * * The Act is designed to protect all persons having claims arising out of highway accidents.'); Escobedo v. State Dept. of Motor Vehicles, 35 Cal.2d 870, 876, 222 P.2d 1, 5 (1950) ('(T)he state chose to allow financially irresponsible licensed operators to drive until they became involved in an accident with the consequences described in the (financial responsibility law) and their financial irresponsibility was thus brought to the attention of the department, and then to require suspension of their licenses.'); People v. Nothaus, 147 Colo. 210, 215—216, 363 P.2d 180, 183 (1961) ('The requirement of C.R.S. '53, 13—7—7, that the director of revenue, '* * * shall suspend the license of each operator and all registrations of each owner of a motor vehicle in any manner involved in (an) accident * * *' unless such persons deposit a sum 'sufficient in the judgment of the director * * *' to pay any damage which may be awarded, or otherwise show ability to indemnify the other party to the accident against financial loss, has nothing whatever to do with the protection of the public safety, health, morals or welfare. It is a device designated and intended to bring about the posting of security for the payment of a private obligation without the slightest indication that any legal obligation exists on the part of any person. The public gets no protection whatever from the deposit of such security. This is not the situation which we find in some states where the statutes require public liability insurance as a condition to be met before a driver's license will issue. Such statute protects the public. The statute before us is entirely different. In the matters to which we have particularly directed attention, C.R.S. '53, 13—7—7 is unconstitutional. On a matter so obviously basic and fundamental no additional citation of authority is required. We reach this conclusion notwithstanding the fact that other jurisdictions have seemingly overlooked basic constitutional guarantees which must be ignored in raching an opposite conclu-
sion.'); Dempsey v. Tynan, 143 Conn. 202, 208, 120 A.2d 700, 703 (1956) ('The purpose of the legislature in enacting the financial responsibility provisions * * * was to keep off our highways the financially irresponsible owner or operator of an automobile who cannot respond in damages for the injuries he may inflict, and to require him, as a condition for securing or retaining a registration or an operator's license, to furnish adequate means of satisfying possible claims against him.'); City of St. Paul v. Hoffmann, 223 Minn. 76, 77—78, 25 N.W.2d 661, 662—663 (1946) ('The apparent objective of the safety responsibility act is to provide financial responsibility for injuries and damages suffered in motor vehicle traffic. It seeks to achieve its objective solely by the suspension of licenses. While its announced purpose is to promote safety of travel, its provisions take effect after an accident happens and subject drivers and owners of vehicles involved to suspension of their 'licenses' unless liability insurance coverage equivalent to that required by the act is carried by the owner or driver of the vehicle. * * * The purpose of the act was to effect financial responsibility to injured persons.'); Rosenblum v. Griffin, 89 N.H. 314, 318, 197 A. 701, 704 (1938) ('Two reasons were thought to avail for sustaining such a law. One was its character as a regulation of the use of public highways and the other was its capacity to secure public safety in dangerous agencies and operations. This latter reason has slight if any evidence for its factual support. Certainly, in the absence of known experience and statistics, it is doubtful whether the insured owner's car, driven either by himself or another, may be considered to be operated more carefully than one whose owner is uninsured. But protection in securing redress for injured highway travelers is a proper subject of police regulation, as well as protection from being injured. It is a reasonable incident of the general welfare that financially irresponsible persons be denied the use of the highway with their cars, regardless of the competency of themselves or others as the drivers.'). For legislative statements to the effect that financial responsibility laws are designed to secure compensation for injured victims, see, e.g., Alaska Stat. § 28.20.010 (1970); Gillaspie v. Department of Public Safety, 152 Tex. 459, 463, 259 S.W.2d 177, 180 (1953) (quoting emergency clause enacted by the Texas Legislature in connection with its financial responsibility
law); S.Rep.No.515, 83d Cong., 1st Sess., 2 (1953) (Report of the Senate Committee on the District of Columbia on the financial responsibility law proposed for the District).
12
See Reitz, 314 U.S., at 40—43, 62 S.Ct., at 28—30, 86 L.Ed. 21 (Douglas, J., dissenting).
Under Art. 3 of the Arizona Act, dealing with the posting of security for damages arising from a particular accident, the victim may cut the superintendent out by executing a release from liability or agreeing to some other written settlement or confession of judgment providing for payment of some damages, in installments or otherwise. Ariz.Rev.Stat.Ann. § 28—1143(A) (4) discussed in n. 2, supra. Assuming that such an agreement or confession of judgment providing for installment payments is filed with the superintendent, it prevents him from suspending driving privileges for failure to post the amount of financial security the superintendent determines to be necessary; however, if the careless driver later defaults on one installment, the victim may give notice to the superintendent, who must then use his power of suspension to either coerce full payment or the posting of security. Ariz.Rev.Stat.Ann. § 28—1144(3), discussed in n. 3, supra.
Under Art. 4, dealing with suspension for nonpayment of a judgment, the victim who has chosen to reduce his claim to judgment maintains substantial control over the suspension of driving privileges if the judgment remains unsatisfied 60 days after entry. He may consent that the judgment debtor's driving privileges not be suspended, but the debtor still must furnish proof of financial responsibility for the future. Ariz.Rev.Stat.Ann. § 28—1162(B). For an argument that a similar provision delegating to judgment creditors the right to choose which careless drivers who do not pay judgments shall escape suspension conflicts with the Bankruptcy Act see Kesler, 369 U.S., at 179—182, 82 S.Ct., at 822—824, 7 L.Ed.2d 641 (Warren, C. J., dissenting). If the judgment debtor is able to secure a discretionary court order permitting him to pay a judgment in installments under § 28—1165 (A), the creditor may cause suspension of driving privileges until the judgment is fully satisfied by notifying the superintendent of any default in payment of the installments. Ariz.Rev.Stat.Ann. § 28—1165(C). Again, however, the judgment debtor must still give proof of financial responsibility for the future. See Ariz.Rev.Stat.Ann. § 28—1165(B).
13
Kesler also decided a jurisdictional question, holding that a Supremacy Clause challenge to a state statute was required to be heard by a three-judge district court under 28 U.S.C. § 2281. See 369 U.S., at 155—158, 82 S.Ct. at 809—811. This jurisdictional part of the decision was overruled almost four years later in Swift & Co. v. Wickham, 382 U.S. 111, 116, 86 S.Ct. 258, 261, 15 L.Ed.2d 194 (1965).
14
It also seems clear that even under the logic of Kesler and Reitz Mrs. Perez should not have lost her driving privileges. She was not present when the accident occurred, and no act or omission on her part contributed to it. Because the automobile was community property under Arizona law and because judgment was confessed as to her in the Pinkerton negligence action, the Court of Appeals reasoned that loss of Mrs. Perez' license 'is the price an Arizona wife must pay for negligent driving by her husband of the community vehicle' when the resulting judgment is not paid. 421 F.2d, at 624. The Kesler and Reitz assumption that depriving uninsured motorists of the full relief afforded by a discharge in bankruptcy would prompt careful driving is without foundation when applied to Mrs. Perez. As the Court of Appeals for the Third Circuit has stated in a recent decision involving similar facts:
'Even accepting the fiction that, as applied to drivers, motor vehicle responsibility statutes are intended to promote safety, it is just too much fiction to contend that, applied to a judgment debtor held vicariously liable for the omission of a sub-agent, the statute is anything but a means for the enforcement of judgments.' Miller v. Anckaitis, 436 F.2d 115, 118 (CA 3 1970) (en banc).
15
See S.Rep.No.10, 74th Cong., 1st Sess. (1935); H.R.Rep.No.208, 74th Cong., 1st Sess. (1935) (both presenting a summary of the provisions of the proposed statute dealing with 'Financial Responsibility of Motor Vehicle Operators in the District of Columbia,' but failing to mention the fact that a discharge in bankruptcy of an accident judgment would have no effect on suspension of driving privileges for failure to satisfy such judgment); H.R.Conf.Rep.No.799, 74th Cong., 1st Sess. (1935) (Conference Report making no mention of anti-discharge provision); 79 Cong.Rec. 272—273 (Senate); 79 Cong.Rec. 3416—3417, 4621—4629, 4631—4641, 6556—6564 (House). Some members of the House, which debated some aspects of the financial responsibility law concept rather extensively in 1935, demonstrated in debate that they were totally unaware of any of the provisions designed to enforce payment of a judgment for injuries caused by the first accident of a financially irresponsible driver. See 79 Cong.Rec. 4624 (remarks of Reps. Fitzpatrick and Sisson); id., at 4625 (remarks of Rep. Hull).
When the present District of Columbia financial responsibility law was enacted in 1954, debate was much more limited and the reports of the House and Senate District Committees were quite brief. Except for the reading of the bill, no mention was made of the anti-discharge provision. See S.Rep.No. 515, 83d Cong., 1st Sess. (1953); H.R.Rep.No.1448, 83d Cong., 2d Sess. (1954); 99 Cong.Rec. 8950—8951; 100 Cong.Rec. 6281—6287, 6347—6348.
16
S.Rep.No.10, 74th Cong., 1st Sess., 3 (1935); H.R.Rep.No.208, 74th Cong., 1st Sess., 3 (1935); 79 Cong.Rec. 4626 4627 (remarks of Rep. Norton, Chairman of the House District Committee). In reference to the present version of the financial responsibility act, see S.Rep.No.515, 83d Cong., 1st Sess., 1 (1953); H.R.Rep.No.1448, 83d Cong., 2d Sess., 2 (1954); 100 Cong.Rec. 6287 (remarks of Rep. Talle); id., at 6347 (remarks of Sen. Beall).
1
See Appendix to this opinion, post, p. 672.
2
The petitioners urge upon us only the Supremacy Clause.
3
In 1943 some of the motor vehicle uniform laws were 'withdrawn from active promulgation pending further study' by the National Conference of Commissioners on Uniform State Laws. 9B U.L.A. Table III, xix, xxii, xxiii. See Mr. Justice Frankfurter's detailed review of the development of state legislation and of the uniform laws in this field in Kesler v. Department of Public Safety, 369 U.S. 153, 158—168, 82 S.Ct. 807, 811—816, 7 L.Ed.2d 641 (1962).
4
Mr. Chief Justice Warren, dissenting in part, would have upheld the Utah statutes other than that 'which gives to a creditor the discretion of determining if and when driving privileges may be restored by the State * * *.' 369 U.S., at 179, 82 S.Ct., at 822.
5
Public Law 365 replaced the Act of May 3, 1935, 49 Stat. 166, known as the Owners' Financial Responsibility Act of the District of Columbia. Section 3 of the earlier Act provided, 49 Stat. 167, that a judgment's discharge in bankruptcy, as distinguished from other discharge, would not relieve the judgment debtor from suspension.
6
Ala.Code, Tit. 36, § 74(55) (Supp.1969); Alaska Stat. § 28.20.350 (1962); Ark.Stat.Ann. § 75—1457 (1957); Cal.Vehicle Code § 16372 (1960); Colo.Rev.Stat.Ann. § 13—7—25(2) (Supp.1965); Conn.Gen.Stat.Rev. § 14—131 (1966); Del.Code Ann., Tit. 21, § 2943 (1953); Hawaii Rev.Stat. § 287—17 (1968); Idaho Code § 49—1514 (1967); Ill.Ann.Stat., c. 95 1/2, § 7—310 (1971); Iowa Code § 321A.14(2) (1971); Kan.Stat.Ann. § 8—744(b) (1964); Ky.Rev.Stat. § 187.420 (1962); La.Rev.Stat.Ann.
§ 32:893 (1963); Me.Rev.Stat.Ann., Tit. 29, § 783(6) (1964) (10 years); Md.Ann.Code, Art. 66 1/2, § 7—315 (1970); Mich.Comp.Laws § 257.513(b) (Supp.1956); Minn.Stat. § 170.33, subd. 5 (1967); Miss.Code Ann. § 8285—14(b) (1942); Mo.Rev.Stat. § 303.110 (1959); Mont.Rev.Codes Ann. § 53—431 (1961); Neb.Rev.Stat. § 60—519 (1968); Nev.Rev.Stat. § 485.303 (1968); N.H.Rev.Stat.Ann. § 268:9 (1966); N.J.Stat.Ann. § 39:6—35 (Supp.1971); N.M.Stat.Ann. § 64—24 78 (1960); N.Y.Veh. & Traf.Law § 337(c) (1970); N.C.Gen.Stat. § 20 279.14 (Supp.1969); N.D.Cent.Code § 39—16.1—04(5) (Supp.1969); Ohio Rev.Code Ann. § 4509.43 (Supp.1970); Okla.Stat.Ann., Tit. 47, § 7—315 (1962); Pa.Stat.Ann., Tit. 75, § 1414 (1960); R.I.Gen.Laws Ann. § 31—32—15 (1969); S.C.Code Ann. § 46—748 (Supp.1960); S.D.Comp.Laws Ann. § 32—35—58 (1967); Tenn.Code Ann. § 59—1236 (1968); Tex.Rev.Civ.Stat.Ann., Art. 6701h, § 14(b) (1969); Utah Code Ann. § 41—12—15 (1953); Vt.Stat.Ann., Tit. 23, § 802(b) (1967); Va.Code Ann. § 46.1—444(a)(4) (Supp.1970) (15 years); Wash.Rev.Code Ann. § 46.29.380 (1967); W.Va.Code Ann. § 17D—4—6 (1966); Wis.Stat. § 344.26(2) (1967) (cf. Zywicke v. Brogli, 24 Wis.2d 685, 130 N.W.2d 180 (1964)); Wyo.Stat.Ann. § 31—299 (1967).
See also Fla.Stat.Ann. § 324.131 (1968) and Op.Atty.Gen., 059 200 (1959); Ga. Code Ann. § 92A—605(e)(3) (Supp.1970); Ind.Ann.Stat. § 47—1049 (1965) and Op.Atty.Gen.1936, p. 272; Mass.Gen.Laws Ann., c. 90, § 22A (Supp.1971); Ore.Rev.Stat. § 486.211(5) (1967).
7
Mr. Justice Douglas dissenting, in Swift & Co. v. Wickham, 382 U.S., at 133, 86 S.Ct., at 270, 15 L.Ed.2d 194.
| 78
|
402 U.S. 570
91 S.Ct. 1731
29 L.Ed.2d 187
CHICAGO AND NORTH WESTERN RAILWAY COMPANY, Petitioner,v.UNITED TRANSPORTATION UNION.
No. 189.
Argued Jan. 18, 1971.
Decided June 1, 1971.
Syllabus
Petitioner railroad brought this suit (after formal procedures of the Railway Labor Act had been exhausted) to enjoin a threatened strike by respondent Union, charging that the Union had failed to perform its obligations under § 2 First of the Railway Labor Act 'to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions.' The Union answered that the Norris-LaGuardia Act deprived the District Court of jurisdiction to enjoin the strike and that in any event the complaint failed to state a claim on which relief could be granted. The District Court, declining to pass on whether either party had violated § 2 First, concluded that the matter was one for administrative determination by the National Mediation Board and was not justiciable, and that §§ 4 and 7 of the Norris-LaGuardia Act deprived the court of jurisdiction to enjoin the threatened strike. The Court of Appeals affirmed, construing § 2 First as hortatory and not enforceable by the courts but only by the National Mediation Board. Held:
1. Sec. 2 First was intended to be, not just a mere exhortation, but an enforceable legal obligation on carriers and employees alike. Pp. 574—578.
2. The obligation imposed by § 2 First, which is central to the effective working of the Railway Labor Act, is enforceable in the courts rather than by the Mediation Board, as is clear from the Act's legislative history. Pp. 578—581.
3. Sec. 4 of the Norris-LaGuardia Act does not prohibit the use of a strike injunction where that remedy is the only practical, effective means of enforcing the duty imposed by § 2 First. P.p. 581—584.
422 F.2d 979, reversed and remanded.
William H. Dempsey, Jr., Washington, D.C., for petitioner.
John H. Haley, Jr., East St. Louis, Ill., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
The Chicago and North Western Railway Co., petitioner in this action, brought suit in the United States District Court for the Northern District of Illinois to enjoin a threatened strike by the respondent, the United Transportation Union. The substance of the complaint was that in the negotiations between the parties over work rules, the Union had failed to perform its obligation under § 2 First of the Railway Labor Act, as amended, 44 Stat. 577, 45 U.S.C. § 152 First, 'to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions.'1 Jurisdiction was said to rest on 28 U.S.C. §§ 1331 and 1337. The Union in its answer contended that §§ 4, 7, and 8 of the Norris-LaGuardia Act, 47 Stat. 70, 71, 72, 29 U.S.C. §§ 104, 107, 108,2 deprived the District Court of jurisdiction to issue a strike injunction and that in any event the complaint failed to state a claim upon which relief could be granted.3 The District Judge, having heard evidence and argument, declined to pass on whether either party had violated § 2 First. In an unreported opinion, he concluded that the question was a matter for administrative determination by the National Mediation Board and was nonjusticiable; he further ruled that §§ 4 and 7 of the Norris-LaGuardia Act deprived the court of jurisdiction to issue an injunction against the Union's threatened strike. The Court of Appeals for the Seventh Circuit affirmed, 422 F.2d 979, construing § 2 First as a statement of the purpose and policy of the subsequent provisions of the Act, and not as a specific requirement anticipating judicial enforcement. Rather, in that court's view, the enforcement of § 2 First was solely a matter for the National Mediation Board. Id., at 985—988. We granted certiorari to consider this important question under the Railway Labor Act, on which the lower courts had expressed divergent views.4 For reasons that follow we reverse.
2
* For at least the past decade, the Nation's railroads and the respondent Union or its predecessors have been engaged in an off-and-on struggle over the number of brakemen to be employed on each train. We find it unnecessary to describe this history in any great detail, either generally or with particular reference to petitioner. Accounts at earlier stages may be found in Brotherhood of Locomotive Engineers v. Baltimore & Ohio R. Co., 372 U.S. 284, 285—288, 83 S.Ct. 691, 692—693, 9 L.Ed.2d 759 (1963); Brotherhood of Locomotive Firemen & Enginemen v. Chicago, Burlington & Quincy R. Co., 225 F.Supp. 11, 14—17 (DC), aff'd, 118 U.S.App.D.C. 100, 331 F.2d 1020 (1964); Brotherhood of Railroad Trainmen v. Akron & Barberton Belt R. Co., 128 U.S.App.D.C. 59, 66—70, 385 F.2d 581, 588—592 (1967); Brotherhood of Railroad Trainmen v. Atlantic Coast Line R. Co., 127 U.S.App.D.C. 298, 383 F.2d 225 (1967); and see the opinion of the court below, 422 F.2d, at 980—982, and n. 4. For present purposes it is sufficient to observe that the parties have exhausted the formal procedures of the Railway Labor Act: notices, conferences, unsuccessful mediation, refusal by the Union to accept the National Mediation Board's proffer of arbitration, termination of mediation, and expiration of the 30-day cooling-off period of § 5 First, 45 U.S.C. § 155 First. The Railroad's charge that the Union had violated § 2 First was based principally on its contention that the Union had consistently refused to handle the dispute on a nationwide basis while maintaining an adamant determination that no agreement should be reached with the Chicago North Western more favorable to the carrier than agreements which the Union had already reached with other railroads. The complaint also alleged that the Union had refused to bargain on the proposals in the Railroad's counternotices.
3
The narrow questions presented to us are whether § 2 First imposes a legal obligation on carriers and employees or is a mere exhortation; whether the obligation is enforceable by the judiciary; and whether the Norris-LaGuardia Act strips the federal courts of jurisdiction to enforce the obligation by a strike injunction. The parties have not requested us to decide whether the allegations of the complaint or the evidence presented at the hearing was sufficient to show a violation of § 2 First, and the lower courts, by their resolution of the thresh-old questions, did not reach the issue. Accordingly, we intimate no view on this matter.
II
4
This Court has previously observed that '(t)he heart of the Railway Labor Act is the duty, imposed by § 2 First upon management and labor, 'to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes * * * in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof." Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377—378, 89 S.Ct. 1109, 1114—1115, 22 L.Ed.2d 344 (1969). It is not surprising that such is the case. As one leading commentator has said, in connection with the duty under the National Labor Relations Act to bargain in good faith, '(i)t was not enough for the law to compel the parties to meet and treat without passing judgment upon the quality of the negotiations. The bargaining status of a union can be destroyed by going through the motions of negotiating almost as easily as by bluntly withholding recognition.' Cox, The Duty to Bargain in Good Faith, 71 Harv.L.Rev. 1401, 1412—1413 (1958). We recognized this to be true when we said in N.L.R.B. v. Insurance Agents' International, 361 U.S. 477, 484—485, 80 S.Ct. 419, 424—425, 4 L.Ed.2d 454 (1960), that 'the duty of management to bargain in good faith is essentially a corollary of its duty to recognize the union.'
5
Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937), furnishes an early illustration of this principle in connection with the duty to 'exert every reasonable effort' under the Railway Labor Act. In that case, the railroad refused to recognize a union certified by the National Mediation Board as the duly authorized representative of its shop workers, and instead sought to coerce these employees to join a company union. The employees sought and obtained an injunction requiring the railroad to perform its duty under § 2 Ninth to 'treat with' their certified representative; the injunction also compelled the railroad 'to exert every reasonable effort' to make and maintain agreements with the union. This Court affirmed that decree, explicitly rejecting the argument that the duty to exert every reasonable effort was only a moral obligation. This conclusion has been repeatedly referred to without criticism in subsequent decisions.5
6
The conclusion that § 2 First is more than merely hortatory finds support in the legislative history of the Railway Labor Act as well. As this Court has often noted, the Railway Labor Act of 1926 was, and was acknowledged to be, an agreement worked out between management and labor, and ratified by the Congress and the President.6 Accordingly, the statements of the spokesmen for the two parties made in the hearings on the proposed Act are entitled to great weight in the construction of the Act.7
7
In the House hearings, Donald R. Richberg, counsel for the organized railway employees supporting the bill, was unequivocal on whether § 2 First imposed a legal obligation on the parties. He stated, 'it is (the parties') duty to exert every reasonable effort * * * to settle all disputes, whether arising out of the abrogation of agreements or otherwise, in order to avoid any interruption to commerce. In other words, the legal obligation is imposed, and as I have previously stated, and I want to emphasize it, I believe that the deliberate violation of that legal obligation could be prevented by court compulsion.'8 Mr. Richberg went on to describe why the bill had been drafted in general language applicable equally to both parties, rather than in terms of specific requirements or prohibitions accompanied by explicit sanctions:
8
'We believe, and this law has been written upon the theory, that in the development of the obligations in industrial relations and the law in regard thereto, there is more danger in attempting to write specific provisions and penalties into the law than there is in writing the general duties and obligations into the law and letting the enforcement of those duties and obligations develop through the courts in the way in which the common law has developed in England and America.'9
9
Accordingly, we think it plain that § 2 First was intended to be more than a mere statement of policy or exhortation to the parties; rather, it was designed to be a legal obligation, enforceable by whatever appropriate means might be developed on a case-by-case basis.
10
The Court of Appeals, in seemingly coming to the contrary conclusion, relied on this Court's decision in General Committee of Adjustment v. Missouri-Kansas-Texas R. Co., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76 (1943). In that case, the Court held that jurisdictional disputes between unions were not justiciable, but were left by the Act either to resolution by the National Mediation Board under § 2 Ninth or to the economic muscle of the parties. Reliance had been placed on § 2 Second, which requires that all disputes should be considered and if possible decided in conference of the authorized representatives of the parties. The Court held that this reliance was misplaced: 'Nor does § 2, Second make justiciable what otherwise is not. * * * § 2 Second, like § 2, First, merely states the policy which those other provisions buttress with more particularized commands.' Id., at 334, 64 S.Ct., at 151 (footnote omitted).
11
In light of the place of § 2 First in the scheme of the Railway Labor Act, the legislative history of that section, and the decisions interpreting it, the passing reference to it in the M-K-T case cannot bear the weight which the Court of Appeals sought to place upon it.
III
12
Given that § 2 First imposes a legal obligation on the parties, the question remains whether it is an obligation enforceable by the judiciary. We have often been confronted with similar questions in connection with other duties under the Railway Labor Act.10 Our cases reveal that where the statutory language and legislative history are unclear, the propriety of judicial enforcement turns on the importance of the duty in the scheme of the Act, the capacity of the courts to enforce it effectively, and the necessity for judicial enforcement if the right of the aggrieved party is not to prove illusory.
13
We have already observed that the obligation under § 2 First is central to the effective working of the Railway Labor Act. The strictest compliance with the formal procedures of the Act is meaningless if one party goes through the motions with 'a desire not to reach an agreement.' N.L.R.B. v. Reed & Prince Mfg. Co., 205 F.2d 131, 134 (CA1 1953). While cases in which the union is the party with this attitude are perhaps rare, they are not unknown. See Chicago Typographical Union No. 16, 86 N.L.R.B. 1041 (1949), enforced sub nom. American Newspaper Publishers Assn. v. N.L.R.B., 193 F.2d 782 (CA7 1951), aff'd as to another issue, International Typographical Union v. N.L.R.B., 345 U.S. 100, 73 S.Ct. 552, 97 L.Ed. 852 (1953). We think that at least to this extent the duty to exert every reasonable effort is of the essence.11
14
The capacity of the courts to enforce this duty was considered and affirmed in the Virginian Ry. Co. case. Mr. Justice Stone, speaking for the Court, noted that 'whether action taken or omitted is in good faith or reasonable, are everyday subjects of inquiry by courts in framing and enforcing their decrees.' 300 U.S., at 550, 57 S.Ct., at 601. Section 8 of the Norris-LaGuardia Act explicitly requires district courts to determine whether plaintiffs have 'failed to make every reasonable effort' to settle the dispute out of which the request for the injunction grows.12 We have no reason to believe that the district courts are less capable of making the inquiry in the one situation than in the other.
15
Finally, we must consider the Court of Appeals' position that the question whether a party had exerted every reasonable effort was committed by the Railway Labor Act to the National Mediation Board rather than to the courts. We believe that the legislative history of the Railway Labor Act rather plainly disproves this contention. It is commonplace that the 1926 Railway Labor Act was enacted because of dissatisfaction with the 1920 Transportation Act, and particularly with the performance of the Railroad Labor Board. While there were many causes of this dissatisfaction, one of the most prominent was that because of its adjudicatory functions, the Board effectively lost any influence in attempting to settle disputes. Throughout the hearings on the bill which became the 1926 Act there are repeated expressions of concern that the National Mediation Board should retain no adjudicatory function, so that it might maintain the confidence of both parties.13 And as the Court noted in Switchmen's Union v. National Mediation Board, 320 U.S. 297, 303, 64 S.Ct. 95, 98, 88 L.Ed. 61 (1943), when Congress in 1934 gave the Board power to resolve certain jurisdictional disputes, it authorized the Board to appoint a committee of neutrals to decide the dispute 'so that the Board's 'own usefulness of settling disputes that might arise thereafter might not be impaired.' S.Rep.No.1065, 73d Cong., 2d Sess., p. 3.' Only last Term we referred to the fact that 'the Mediation Board has no adjudicatory authority with regard to major disputes.' Detroit & T.S.L.R. Co. v. United Transportation Union, 396 U.S. 142, 158, 90 S.Ct. 294, 304, 24 L.Ed.2d 325 (1969). In light of these considerations, we think the conclusion inescapable that Congress intended the enforcement of § 2 First to be overseen by appropriate judicial means rather than by the Mediation Board's retaining jurisdiction over the dispute or prematurely releasing the parties for resort to self-help if it feels such action called for.14
IV
16
We turn finally to the question whether § 4 of the Norris-LaGuardia Act15 prohibits the use of a strike injunction in all cases of violation of § 2 First. The fundamental principles in this area were epitomized in International Association of Machinists v. Street, 367 U.S. 740, 772—773, 81 S.Ct. 1784, 1802, 6 L.Ed.2d 1141 (1961):
17
'The Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. §§ 101—115, expresses a basic policy against the injunction of activities of labor unions. We have held that the Act does not deprive the federal courts of jurisdiction to enjoin compliance with various mandates of the Railway Labor Act. Virginian R. Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22. However, the policy of the Act suggests that the courts should hesitate to fix upon the injunctive remedy for breaches of duty owing under the labor laws unless that remedy alone can effectively guard the plaintiff's right.'
18
Similar statements may be found in many of our opinions.16 We consider that these statements properly accommodate the conflicting policies of our labor laws, and we adhere to them. We find it quite impossible to say that no set of circumstances could arise where a strike injunction is the only practical, effective means of enforcing the command of § 2 First. Accordingly, our prior decisions lead us to hold that the Norris-LaGuardia Act did not forbid the District Court from even considering whether this is such a case.17 If we have misinterpreted the congressional purpose, Congress can remedy the situation by speaking more clearly. In the meantime we have no choice but to trace out as best we may the uncertain line of appropriate accommodation of the two statutes with purposes that lead in opposing directions.18
19
We recognize, of course, that our holding that strike injunctions may issue when such a remedy is the only practical, effective means of enforcing the duty to exert every reasonable effort to make and maintain agreements falls far short of that definiteness and clarity which businessmen and labor leaders undoubtedly desire. It creates a not insignificant danger that parties will structure their negotiating positions and tactics with an eye on the courts, rather than restricting their attention to the business at hand. Moreover, the party seeking to maintain the status quo may be less willing to compromise during the determinate processes of the Railway Labor Act if he believes that there is a chance of indefinitely postponing the other party's resort to self-help after those procedures have been exhausted. See Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S., at 380—381, 89 S.Ct., at 1116; cf. Hearings, supra, n. 8, at 17, 50, 100 (Mr. Richberg); id., at 190 (Mr. Robertson). Finally, the vagueness of the obligation under § 2 First could provide a cover for freewheeling judicial interference in labor relations of the sort that called forth the Norris-LaGuardia Act in the first place.19
20
These weighty considerations indeed counsel restraint in the issuance of strike injunctions based on violations of § 2 First. See n. 11, supra. Nevertheless, the result reached today is unavoidable if we are to give effect to all our labor laws—enacted as they were by Congresses of differing political makeup and differing views on labor relations—rather than restrict our examination to those pieces of legislation which are in accord with our personal views of sound labor policy. See Boys Markets v. Retail Clerks Local 770, 398 U.S. 235, 250, 90 S.Ct. 1583, 1592, 26 L.Ed.2d 199 (1970).
V
21
As we noted at the outset, we have not been requested to rule on whether the record shows a violation of § 2 First in circumstances justifying a strike injunction, and we do not do so. Such a question should be examined by this Court, if at all, only after the facts have been marshaled and the issues clarified through the decisions of lower courts.
22
In view of the uncertainty heretofore existing on what constituted a violation of § 2 First and what showing was necessary to make out a case for a strike injunction, we believe the appropriate course is to remand the case to the Court of Appeals with instructions to return the case to the District Court for the taking of such further evidence as the parties may deem necessary and that court may find helpful in passing on the issues which the case presents in light of our opinion today.
23
Reversed and remanded.
24
Mr. Justice BRENNAN, with whom Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice WHITE join, dissenting.
25
The instant dispute between the Chicago & North Western Railway Company (Railway) and the United Transportation Union (Union) reaches back to the decision of Arbitration Board No. 282, established pursuant to 77 Stat. 132 (1963). That board was established by Congress, after the failure of the dispute-settlement machinery of the Railway Labor Act, to arbitrate disputes between various carriers and unions over the number of brakemen required on trains and the necessity of firemen on diesel locomotives. Insofar as is here pertinent, Board 282's award ultimately led to elimination of approximately 8,000 brakemen's jobs across the Nation. By its terms, however, the award expired January 25, 1966. Prior to expiration, the Union served upon the Railway notices under § 6 of the Railway Labor Act, 45 U.S.C. § 156,1 which called for reestablishing many of the brakemen's positions eliminated by Board 282 by changing the existing agreements to require not less than two brakemen on every freight and yard crew. The Railway reciprocated by serving upon the Union a § 6 notice requesting an agreement that would make crew size a matter of managerial judgment. The parties held conferences under § 6 without reaching agreement. The National Mediation Board attempted to mediate the dispute pursuant to § 5, 45 U.S.C. § 155,2 failed, and proffered arbitration pursuant to the same section. After the Union declined to accept arbitration, the National Mediation Board terminated its jurisdiction. Since no emergency board was appointed by the President under § 10, 45 U.S.C. § 160,3 after the 30-day cooling-off period of § 5 had run,4 the Act's prohibition against resort to self-held measures lapsed.
26
Thereafter, the Railway brought this action in Federal District Court seeking an injunction against a threatened strike, alleging that the Union had not lived up to its obligation under § 2 First, 45 U.S.C. § 152 First, to 'exert every reasonable effort' to make and maintain working agreements. Specifically, the Railway alleged that the Union had violated its statutory duty in the following ways:
27
'First: Having insisted in the foregoing dispute upon bargaining separately with the plaintiff carrier instead of bargaining jointly with all the railroads upon which the BRT (Brotherhood of Railroad Trainmen) had served like notices, nevertheless
28
'(a) The defendant has refused to bargain on the proposals in the carrier's counter-notices to reduce the size of main line road crews;
29
'(b) The defendant has insisted that any agreement on the C&NW be no more favorable to the C&NW than agreements reached on the other railroads upon which the BRT served like notices;
30
'(c) The defendant has entered negotiations with a fixed position and a determination not to deviate from the position regardless of what relevant consideration might be advanced by the C&NW; and
31
Second: Notwithstanding the foregoing, the defendant has refused to engage in national handling of this dispute and to negotiate on a joint basis a national crew consist agreement with all the railroads on which the BRT served like notices.' App. 7.
32
The District Judge denied the injunction, holding that '(w)hether there has been compliance with Section 2 First * * * is a matter for administrative determination * * * is not justiciable and this Court does not have jurisdiction to consider or adjudicate disputes with respect to compliance with such subsection * * *.' App. 204—205. The Court of Appeals affirmed, 422 F.2d 979 (CA7 1970). We granted certiorari, 400 U.S. 818, 91 S.Ct. 38, 27 L.Ed.2d 44 (1970), to resolve a conflict in the circuits. Piedmont Aviation, Inc. v. Air Line Pilots Assn., 416 F.2d 633 (CA4 1969). I believe that the Railway Labor Act evidences a clear intention to prohibit courts from weighing the relative merits of each party's attempts to reach a bargaining agreement, and that the decision of the Seventh Circuit should, therefore, be affirmed.
33
This case presents the question whether, in a major dispute, a District Court may enjoin self-help measures after the completion of the statutory procedures if it determines that a party has not made 'every reasonable effort' to reach agreement as required by § 2 First. Underlying this question is the corollary one, to what extent a District Court may inquire into collective negotiations in determining whether a party has complied with its statutory duty.
34
In answering these questions particular attention must be paid to the legislative history of the Act. Railway labor dispute-settlement law has undergone a long legislative evolution which this Court has previously explored. International Association of Machinists v. Street, 367 U.S. 740, 750—760, and nn. 10—12, 81 S.Ct. 1784, 1790—1795, 6 L.Ed.2d 1141 (1961); see also Texas & N.O.R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034 (1930); Virginian R. Co. v. System FederationNo. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937); Union Pacific R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351, 3 L.Ed.2d 1460 (1959); Detroit & T.S.L.R. Co. v. United Transportation Union, 396 U.S. 142, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969). Much of the experimentation prior to passage of the Railway Labor Act of 1926 proved unsuccessful. Recognition that growing unrest in the railway industry had created a situation with potentially grave public consequences, led the President, in three messages to Congress between 1923 and 1925, and both the Republican and Democratic Parties, in 1924, to call for unprecedented cooperation between carriers and unions. H.R.Rep. No. 328, 69th Cong., 1st Sess., 2—3 (1926); S.rep. No. 606, 69th Cong., 1st Sess., 2—3 (1926); Hearings on Railroad Labor Disputes (H.R. 7180) before the House Committee on Interstate and Foreign Commerce, 69th Cong., 1st Sess., 21—22, 90, 98, 197 (1926) (hereinafter Hearings). These basically antagonistic forces were urged to sit down and develop a workable solution for settling disputes in their industry in order to minimize the rupture of the public services that they provided. The legislative product devised by the parties themselves, which Congress enacted in 1926 as the Railway Labor Act, 44 Stat. 577, was a unique blend of moral and legal duties looking toward settlement through conciliation, mediation, voluntary abritration, presidential intervention, and finally, in case of ultimatee failure of the statutory machinery, resort to traditional self-help measures. The cooperation involved was unparalleled in this country's labor history. It was felt significant to all involved that the parties them. selves had worked out a solution and had presented it to Congress.5 The significance lay in the fact that since the bill represented 'the agreement of the parties * * * they will be under the moral obligation to see that their agreement accomplishes its purpose, and that if enacted into law they will desire to prove the law a success.' Hearings 21.
35
The outstanding feature of the bill was that it was voluntary Congress, the carriers, and the unions all recognized that there were very few enforceable provisions, and still fewer judicially enforceable ones.6 In testimony before Congress, Mr. Richberg, the major spokesman for the unions, stated, '(O) ur thought has been in this law not to write a lot of statute law for the courts to enforce. * * * We expect that most of the provisions of this bill are to be enforced by the power of persuasion, either exercised by the parties themselves or by the Government board of mediation representing the public interest.' Hearings at 65—66. Congress recognized the absence of coercive measures but chose not to add them, noting that 'it is in the public interest to permit a fair trial of the method of amicable adjustment agreed upon by the parties * * *.' S.Rep. No. 606, 69th Cong., 1st Sess., 4 (1926). Thus, the history of the Act reveals that in dealing with major disputes Congress was content to enact a machinery which dragged on, with cooling-off periods and various status quo restrictions, while the parties were required to 'treat with' one another, § 2 Ninth, 45 U.S.C. § 152 Ninth, in the hope that ultimately they would voluntarily reach agreement.
36
In order to bring about settlement, it was made 'the duty of all carriers * * * and employees to exert every reasonable effort to make and maintain agreements * * * in order to avoid any interruption to commerce * * *.' § 2 First, 45 U.S.C. § 152 First. From the outset, Congress was interested in the meaning of this provision and whether this statutory duty was viewed by the drafters to be a judicially enforceable one. During the hearings on the House bill the following colloquy occurred:
37
'Mr. Huddleston. Now, referring to section 2 on page 3, (')it shall be the duty of all carriers, their officers, agents, and employees, to exert every reasonable effort to make and maintain agreements,' etc. Do you agree that that also is unenforceable by judicial proceeding?
38
'Mr. Richberg. Not always. I think any action involving an arbitrary refusal to comply with that duty might be subject to judicial compulsion. I am sure it would work both ways.
39
'In other words, I think it would not be exerting a reasonable effort to make and maintain agreements, for a carrier or its appropriate officers to refuse to even meet a committee that sought to make an agreement.
40
'Mr. Huddleston. You think, then, that this section is enforceable?
41
'Mr. Richberg. I think that a duty imposed by law is enforceable by judicial power, yes. Of course, this is not a duty which could be enforced in a very absolute way, because it is a duty to exert every reasonable effort. In other words, all that could be enforced by the court would be an order against an arbitrary refusal to even attempt to comply with that duty, but I believe that could be subject to judicial power.' Hearings 84—85.
42
The response to an earlier question Mr. Richberg had testified:
43
'* * * In the first place, I think if either party showed a willful disregard of the fundamental requirements, that they should make every reasonable effort to make an agreement—in other words, if they refuse absolutely to confer, to meet or discuss or negotiate, I think there is a question as to whether there might not be invoked some judicial compulsion, but I would rather see that left to development rather than see it written into the law. But outside of that, if the parties do not make an agreement, I think you face this question, first, as to whether the Government board of mediation could bring them to see the error of their ways; and, second, if that effort was unsuccessful, whether they could bring them to refer that dispute to an arbitration, and then if it was of sufficient magnitude so that it actually affected commerce substantially, whether the emergency board could not itself bring about an adjustment.' Hearings 66.
44
Since the Act was the product of months of discussion between the carriers and unions and since Mr. Richberg's testimony was uncontradicted by the representatives of the carriers,7 it seems fair to say that the above testimony evidences an understanding on the part of the unions, carriers, and Congress that the duty 'to exert every reasonable effort' was judicially enforceable at least to the extent of requiring the parties to sit down at the bargaining table and talk to each other. This is exactly what this Court held in Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937). That case was an equitable action brought by the Federation to force the Railway to bargain with it. The carrier, despite the Mediation Board's certification of the Federation as the bargaining agent of the employees, had continued to deal only with its company union. This Court held that the duty to exert every reasonable effort to reach agreement, which had been held to be without legal sanction in the context of the previous Act, Pennsylvania R. Co. v. U.S. Labor Board, 261 U.S. 72, 43 S.Ct. 278, 67 L.Ed. 536 (1923),
45
'no longer stand(s) alone and unaided by mandatory provision * * *. The amendment of the Railway Labor Act added new provisions in § 2, Ninth, which makes it the duty of the Mediation Board, when any dispute arises among the carrier's employees, 'as to who are the representatives of such employees,' to investigate the dispute and to certify * * * the name of the organization authorized to represent the employees. It commands that 'upon receipt of such certification the carrier shall treat with the representative so certified as the representative of the craft or class for the purposes of this Act.' 'It is, we think, not open to doubt that Congress intended that this requirement be mandatory upon the railroad employer, and that its command, in a proper case, be enforced by the courts.' 300 U.S., at 544—545, 57 S.Ct., at 598.
46
'(W)e cannot assume that its (§ 2 Ninth's) addition to the statute was purposeless * * *. The statute does not undertake to compel agreement between the employer and employees, but it does command those preliminary steps without which no agreement can be reached. It at least requires the employer to meet and confer with the authorized representative of its employees, to listen to their complaints, to make reasonable effort to compose differences—in short, to enter into a negotiation for the settlement of labor disputes such as is contemplated by § 2, First.' Id., at 547—548, 57 S.Ct., at 599.
47
Virginian R. Co. stands, then, for the proposition that, once the Board has certified a union as the bargaining agent of the employees, a court may require the employer to 'treat with' that representative in order that the statutory machinery of the Railway Labor Act be given a chance to bring about a voluntary settlement. It is, in essence, an order for the parties to recognize one another and begin the long, drawn-out statutory bargaining process.
48
In the years since Virginian R. Co. this Court in the context of a major dispute, has authorized the issuance of an injunction in only two other carefully limited classes of railway litigation that seeking to prevent invidious discrimination on the part of a union as against employees and that seeking to prevent violation of the Act's status quo provisions during bargaining. In a series of cases beginning with Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944),8 this Court has held that 'the language of the Act to which we have referred (§§ 1 Sixth; 2 Second, Third, Fourth, and Ninth), read in the light of the purposes of the Act, expresses the aim of Congress to impose on the bargaining representative of a craft or class of employees the duty to exercise fairly the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against them.' Id., at 202—203, 65 S.Ct., at 232. Recently, in Detroit & T.S.L.R. Co. v. United Transportation Union, 396 U.S. 142, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969), this Court held that the Act's status quo requirement, which 'is central to its design,' could be enforced by judicial authority. Id., at 150, 90 S.Ct., at 299. While in each of these instances the Court found specific, positive statutory mandates for judicial interference, the underlying cohesiveness of the decisions lies in the fact that in each instance the scheme of the Railway Labor Act could not begin to work without judicial involvement. That is, unless the unions fairly represented all of their employees; unless the employer bargained with the certified representative of the employees; unless the status quo was maintained during the entire range of bargaining, the statutory mechanism could not hope to induce a negotiated settlement. In each case the judicial involvement was minimal and in keeping with the central theme of the Act—to bring about voluntary settlement. In each case the 'collective bargaining agents stepped outside their legal duties and violated the Act which called them into being * * *.' Order of Railroad Telegraphers v. Chicago & N.W.R. Co., 362 U.S. 330, 338, 80 S.Ct. 761, 766, 4 L.Ed.2d 774 (1960).
49
In the instant case, we have an entirely different situation. Here, all parties were fairly represented, the status quo was being maintained, and, most important, each bargaining representative met and conferred with his counterpart. The step-by-step procedures prescribed by the Railway Labor Act had been carried through. In essence, the Court holds that a district court has the duty under § 2 First, to assess the bargaining tactics of each of the parties after the entire statutory scheme has run its course. If, then, the court determines that a party had not exerted sufficient effort to reach settlement, it should enjoin self-help measures, and, if such action is to make any sense within this statutory scheme, remand the parties to some unspecified point in the bargaining process. Such a notion is entirely contrary to the carefully constructed premise of the Railway Labor Act.
50
My summary of the legislative history of the Act clearly discloses that judicial involvement in the railway bargaining process was to be minuscule since the entire focus of the Act was toward achieving a voluntary settlement between the protagonists. 'The Railway Labor Act, like the National Labor Relations Act, does not undertake governmental regulation of wages, hours, or working conditions. Instead it seeks to provide a means by which agreement may be reached with respect to them.' Terminal Railroad Assn. v. Brotherhood of Railroad Trainmen, 318 U.S. 1, 6, 63 S.Ct. 420, 423, 87 L.Ed. 571 (1943) (footnote omitted). It is clear to me that the duty to exert every reasonable effort was agreed upon to make effective the duty of the carrier to recognize the union chosen by the employees—in other words, it is essentially a corollary of the duty. Such a duty does not contemplate that governmental power should, after failure of the parties to reach accord, be added to the scales in favor of either party and thus compel the other to agree upon the aided party's terms. Rather at that point, impasse was to free both parties to resort to self-help. See N.L.R.B. v. Insurance Agents' International, 361 U.S. 477, 484—486, 80 S.Ct. 419, 424—425, 4 L.Ed.2d 454 (1960). As Mr. Richberg had testified 'I wish to stress that one point above all others. We are seeking an opportunity to preserve self-government in industry. * * * We are not asking the Government to use force against one or the other party. We are simply asking aid and cooperation.' Hearings 22.
51
Even apart from what the drafters of the Act representing both sides specifically contemplated, the result reached today will destroy entirely the carefully planned scheme of the Act. The Act is built upon a step-by-step framework. Each step is carefully drawn to introduce slightly different pressures upon the parties to reach settlement from the preceding step. First, the parties confer jointly. Next, the National Mediation Board may add its pressure through mediation. Then, the President may call into effect both the great power of his office and that of informed public opinion through the creation of an emergency board. Underlying the entire statutory framework is the pressure born of the knowledge that in the final instance traditional self-help economic pressure may be brought to bear if the statutory mechanism does not produce agreement. The Act does not evidence an intention to return to any step once completed. The Court's decision will effectively destroy the scheme of gradually escalating pressures. Moreover, the Court provides absolutely no guidance as to where in the bargaining scheme the parties are to be remanded. Does the court send them back to the Mediation Board which has already terminated jurisdiction finding the parties to have reached impasse? Should the court remand to some other phase of the proceedings? If so, where?
52
More important, however, is the mortal would today's holding inflicts on the critical role to be played by the presence of economic weapons in reserve. N.L.R.B. v. Insurance Agents' International, supra, at 488—489, 80 S.Ct., at 426—427. As the statutory machinery nears termination without achieving settlement, the threat of economic self-help and the pressures of informed public opinion create new impetus toward compromise and agreement. If self-help can now effectively be thwarted by injunction and by drawn-out court proceedings after the termination of the entire bargaining process, or worse, yet, at each step thereof, the threat of its use becomes impotent, indeed.
53
Since there is no specific mandate for an injunction in the circumstances presented by this case, the more general provisions of the Norris-LaGuardia Act are applicable. Virginian R. Co. v. System Federation No. 40, 300 U.S., at 563, 57 S.Ct., at 607; Brotherhood of Railroad Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 40—41, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957).
54
'The Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. §§ 101—115, expresses a basic policy against the injunction of activities of labor unions. We have held that the Act does not deprive the federal courts of jurisdiction to enjoin compliance with various mandates of the Railway Labor Act. Virginian R. Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22. However, the policy of the Act suggests that the courts should hesitate to fix upon the injunctive remedy for breaches of duty owing under the labor laws unless that remedy alone can effectively guard the plaintiff's right.' International Association of Machinists v. Street, 367 U.S., at 772—773, 81 S.Ct., at 1802.
55
My conclusion, then, is that the Railway Labor Act as designed by its coframers and as enforced by this Court excludes any role for the judiciary to oversee the relative efforts of the parties in their mutual attempt to reach settlement. A court may order the parties to recognize one another and sit down to bargain, but upon failure of the statutory machinery to induce settlement, the judiciary is denied power to enjoin resort to traditional self-help measures. If this scheme has proved ineffective. Congress, not this Court, must redress the deficiencies.
56
I would affirm.
1
The subsection provides:
'It shall be the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.'
2
Section 4 reads in relevant part:
'No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
'(a) Ceasing or refusing to perform any work or to remain in any relation of employment * * *.' 29 U.S.C. § 104.
Section 7 imposes strict procedural requirements on the issuance of injunctions in labor disputes. Section 8 is set out in n. 12, infra.
3
The Union also averred that it had complied with the command of § 2 First and that the Railroad had been derelict in its duty under that section.
4
See, besides the opinion below, Piedmont Aviation, Inc. v. Air Line Pilots Assn., 416 F.2d 633 (CA4 1969); Brotherhood of Railroad Trainmen v. Akron & Barberton Belt R. Co., 128 U.S.App.D.C. 59, 385 F.2d 581 (1967), aff'g Akron & B.B.R.R. v. Order of Railway Conductors and Brakemen, 253 F.Supp. 538 (1966); Seaboard World Airlines, Inc. v. Transport Workers, 425 F.2d 1086 (CA2 1970); United Industrial Workers v. Galveston Wharves, 400 F.2d 320 (CA 5 1968).
5
E.g., Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 721 722, n. 12, 65 S.Ct. 1282, 1288—1289, 89 L.Ed. 1886 (1945), adhered to on rehearing, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928 (1946); Stark v. Wickard, 321 U.S. 288, 306—307, 64 S.Ct. 559, 569, 88 L.Ed. 733 (1944); Order of Railroad Telegraphers v. Chicago & N.W.R. Co., 362 U.S. 330, 339, 80 S.Ct. 761, 766, 4 L.Ed.2d 774 (1960); International Association of Machinists v. Street, 367 U.S. 740, 758, 81 S.Ct. 1784, 1794, 6 L.Ed.2d 1141 (1961); Brotherhood of Railway Clerks v. Association for the Benefit of Non-Contract Employees, 380 U.S. 650, 658, 85 S.Ct. 1192, 1196, 14 L.Ed.2d 133 (1965); Detroit & T.S.L.R. Co. v. United Transportation Union, 396 U.S. 142, 149, 151, 90 S.Ct. 294, 298, 299, 24 L.Ed.2d 325 (1969).
6
E.g., International Association of Machinists v. Street, 367 U.S. 740, 758, 81 S.Ct. 1784, 1794, 6 L.Ed.2d 1141 (1961).
7
See, e.g., Detroit & T.S.L.R. Co. v. United Transportation Union, 396 U.S. 142, 151 n. 18, 152 n. 19, 153 n. 20, 90 S.Ct. 294, 299, 300, 301, 24 L.Ed.2d 325 (1969).
8
Hearings on Railroad Labor Disputes (H.R. 7180) before the House Committee on Interstate and Foreign Commerce, 69th Cong., 1st Sess., 91 (1926). See also id., at 40—41, 66, 84—85.
9
Id., at 91. See also id., at 66.
10
See, e.g., Texas & N.O.R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034 (1930); Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937); Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952).
11
While we have no occasion to determine whether § 2 First requires more of the parties than avoidance of 'bad faith' as defined by Judge Magruder in Reed & Prince, supra, we note two caveats. First, parallels between the duty to bargain in good faith and the duty to exert every reasonable effort, like all parallels between the NLRA and the Railway Labor Act, should be drawn with the utmost care and with full awareness of the differences between the statutory schemes. Cf. Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 383, 89 S.Ct. 1109, 1118, 22 L.Ed.2d 344 (1969). Second, great circumspection should be used in going beyond cases involving 'desire not to reach an agreement,' for doing so risks infringement of the strong federal labor policy against governmental interference with the substantive terms of collective-bargaining agreements. See n. 19, infra.
12
The section provides in full:
'No restraining order or injunctive relief shall be granted to any complainant who was failed to comply with any obligation imposed by law which is involved in the labor dispute in question, or who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.' 29 U.S.C. § 108.
13
E.g., Hearings, supra, n. 8, at 18 (Mr. Richberg):
'The board of mediation, to preserve its ability to mediate year after year between the parties, must not be given any duties to make public reports condemning one party or the other, even though the board may think one party is wrong. That is the fundamental cause of failure of the (Railroad) Labor Board. That is the reason why the Labor Board Machinery never would work, because a board was constituted to sit and deliver opinions which must be opinions for or against one party, and as soon as that board began delivering opinions publicly against a party, that party was sure the board was unfair to it. That is human nature. The board, in other words, was created in a manner to destroy any confidence in itself.
'The board of mediators is not for that function. The board of mediators should never make any reports to the public condemning one party or the other. Their duty is that of remaining persuaders.'
14
If such were the exclusive remedy for violations of § 2 First, not only would it endanger the effectiveness of the Board's mediatory role and risk premature interruptions of transportation, but it would provide no remedy for cases where the violations of § 2 First occurred or first became apparent after the Board had certified that its mediatory efforts had failed.
15
See n. 2, supra, for the text.
16
See Virginian R. Co. v. System Federation No. 40, 300 U.S., at 562—563, 57 S.Ct., at 606—607; Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232, 237, 70 S.Ct. 14, 17, 94 L.Ed. 22 (1949); Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 774, 72 S.Ct. 1022, 1025, 96 L.Ed. 1283 (1952); Brotherhood of Railroad Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 41—42, 77 S.Ct. 635, 640—641, 1 L.Ed.2d 622 (1957); cf. Order of Railroad Telegraphers v. Chicago & N.W.R. Co., 362 U.S., at 338—339, 80 S.Ct., at 766; id., at 360—364, 80 S.Ct., at 777—779 (dissenting opinion); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 458, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957).
17
The congressional debates over the Norris-LaGuardia Act support a construction of that Act permitting federal courts to enjoin strikes in violation of the Railway Labor Act in appropriate cases. See 75 Cong.Rec. 4937—4938 (Sen. Blaine); Id., at 5499, 5504 (Rep. LaGuardia).
18
Section 2 First was re-enacted in 1934, two years after the Norris-LaGuardia Act. Act of June 21, 1934, c. 691, 48 Stat. 1185. In the event of irreconcilable conflict between the policies of the earlier, general provisions of the Norris-LaGuardia Act and those of the subsequent, more specific provisions of § 2 First, the latter would prevail under familiar principles of statutory construction. Virginian R. Co. v. System Federation No. 40, 300 U.S., at 563, 57 S.Ct., at 606.
19
Section 8(d) of the National Labor Relations Act, 29 U.S.C. § 158(d), was added precisely because of congressional concern that the NLRB had intruded too deeply into the collective-bargaining process under the guise of enforcing the duty to bargain in good faith. See N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952); N.L.R.B. v. Insurance Agents' International, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960).
1
Section 6 provides in part:
'Carriers and representatives of the employees shall give at least thirty days' written notice of an intended change in agreements affecting rates of pay, rules, or working conditions * * *.'
2
Section 5 First, provides in part:
'The parties, or either party, to a dispute between an employee or group of employees and a carrier may invoke the services of the Mediation Board in any of the following cases:
'(a) A dispute concerning changes in rates of pay, rules, or working conditions not adjusted by the parties in conference.
'The Mediation Board may proffer its services in case any labor emergency is found by it to exist at any time.
'In either event the said Board shall promptly put itself in communication with the parties to such controversy, and shall use its best efforts, by mediation, to bring them to agreement. If such efforts * * * shall be unsuccessful, the said Board shall at once endeavor as its final required action * * * to induce the parties to submit their controversy to arbitration, in accordance with the provisions of this chapter.'
3
Section 10 provides in part:
'If a dispute between a carrier and its employees be not adjusted under the foregoing provisions of this chapter and should, in the judgment of the Mediation Board, threaten substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service, the Mediation Board shall notify the President, who may thereupon, in his discretion, create a board to investigate and report respecting such dispute. * * *
'After the creation of such board and for thirty days after such board has made its report to the President, no change, except by agreement, shall be made by the parties to the controversy in the conditions out of which the dispute arose.'
4
Section 5 First, provides in part:
'If arbitration at the request of the Board shall be refused by one or both parties, the Board shall at once notify both parties in writing that its mediatory efforts have failed and for thirty days thereafter, unless in the intervening period the parties agree to arbitration, or an emergency board shall be created under section 160 of this title, no change shall be made in the rates of pay, rules, or working conditions or established practices in effect prior to the time the dispute arose.'
5
'Mr. Richberg: * * * This bill which has been introduced in the House and in the Senate simultaneously represents the product of months of negotiations and conferences between the representatives of 20 railroad labor organizations and the Association of Railway Executives representatives, representing the great majority, practically all, of the carriers by railroad.' Hearings 9.
'I want to emphasize again that this bill is the product of a negotiaton between employers and employees which is unparalleled, I believe, in the history of American industrial relations.
'For the first time representatives of a great majority of all the employers and all the employees of one industry conferred for several months for the purpose of creating by agreement a machinery for the peaceful and prompt adjustment of both major and minor disagreements that might impair the efficiency of operations or interrupt the service they render to the community. They are now asking to have this agreement written into law, not for the purpose of having governmental power exerted to compel the parties to do right but in order to obtain Government aid in their cooperative efforts and in order to assure the public that their interest in efficient continuous transportation service will be permanently protected.
'It is a remarkable fact that all parties concerned were able to lay aside the hostile feelings and suspicions that had too often characterized past negotiations and to act upon the belief that if an agreement were reached, it would be carried out in the same spirit of good faith and fair dealing that characterized the negotiations.' Hearings 21—22.
6
Mr. Thom (carrier representative). 'I wish you to bear that fact in mind—the moral obligation now resting upon each one of the proponents of this bill in respect to its effect upon the public interest. Suppose it is changed in any important particular, what effect will that have upon the moral obligation to which I have just alluded? * * *
'I personally attach most substantial importance to the view I am now asking you to consider. I think that when a measure is adopted, backed by the moral obligation of the parties that it will not be permitted in any degree to (a) ffect adversely the public interests, it would be a most unwise thing to insert measures of coercion, substitute principles, or anything that would have the effect of liberating these parties from the position they have voluntarily assumed before you, that this is a workable measure.' Hearings 115.
7
Carrier representatives were present throughout the congressional testimony of Mr. Richberg. None contradicted Mr. Richberg's viewpoint in their testimony.
8
See also Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944); Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22 (1949); Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952).
| 67
|
402 U.S. 622
91 S.Ct. 1723
29 L.Ed.2d 222
Louis S. NELSON, Warden, Petitioner,v.Joe J. B. O'NEIL.
No. 336.
Argued March 24, 1971.
Decided June 1, 1971.
Syllabus
Respondent and one Runnels were charged with committing various crimes and at their joint trial offered an alibi defense. A police officer testified that Runnels had orally admitted the crimes and implicated respondent. Runnels, who took the stand, denied making the statement. The trial judge ruled that Runnels' alleged statement was inadmissible hearsay as to respondent and could not be considered by the jury in deciding whether respondent was guilty. Respondent also took the stand on his own behalf and gave the same version of their activities as Runnels. Both defendants were found guilty, and after unsuccessful efforts to have his conviction set aside, respondent applied for habeas corpus relief. The District Court ruled that respondent's conviction was improper under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, and Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100, which held that the Confrontation Clause of the Sixth Amendment as made applicable to the States by the Fourteenth is violated where a codefendant's out-of-court hearsay statement is admitted into evidence without the declarant's being available at trial for 'full and effective' cross-examination by the defendant, and that a cautionary instruction to the jury does not adequately protect the defendant where the codefendant does not testify. The Court of Appeals affirmed, stressing that effective confrontation of a witness who has allegedly made an out-of-court statement implicating the defendant was possible only if the witness affirmed the statement as his. Held: Where a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and testifies in the defendant's favor, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments and in the circumstances of this case respondent, who would have encountered greater difficulty had Runnels affirmed the statement as his, was denied neither the opportunity nor the benefit of fully and effectively cross-examining Runnels. Bruton, supra, distinguished. Pp. 626 630.
422 F.2d 319, reversed and remanded.
Charles R.B. Kirk, San Francisco, Cal., for petitioner.
J. Strouse Campbell, Arlington, Va., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The respondent, Joe O'Neil, was arrested along with a man named Runnels when the police of Culver City, California, answered a midnight call from a liquor store reporting that two men in a white Cadillac were suspiciously cruising about in the neighborhood. The police responded to the call, spotted the Cadillac, and followed it into an alley where a gun was thrown from one of its windows. They then stopped the car and apprehended the respondent and Runnels. Further investigation revealed that the car had been stolen about 10:30 that night in Los Angeles by two men who had forced its owner at gunpoint to drive them a distance of a few blocks and then had robbed him of $8 and driven off. The victim subsequently picked Runnels and the respondent from a lineup, positively identifying them as the men who had kidnaped and robbed him.
2
Arraigned on charges of kidnaping, robbery, and vehicle theft, both the respondent and Runnels pleaded not guilty, and at their joint trial they offered an alibi defense. Each told the same story: they had spent the evening at the respondent's home until about 11 p.m., when they had left together. While waiting at a bus stop they were picked up by a friend driving a white cadillac, and he offered to lend them the car for a few hours while he went into a nightclub. They accepted the offer, and once on their way discovered that there was a gun in the glove compartment. They entered an alley in search of a place to dispose of the gun, since they were afraid of being stopped with it in the car. Soon after throwing the gun out of the window they were stopped by the police and arrested. The supposed friend was not called as a witness and was not shown to be unavailable, but other witnesses corroborated parts of their alibi testimony.
3
The owner of the white Cadillac made a positive in-court identification of the defendants, and a police officer testified to the facts of the arrest. Another police officer testified that after the arrest Runnels had made an unsworn oral statement admitting the crimes and implicating the respondent as his confederate. The trial judge ruled the officer's testimony as to the substance of the alleged statement admissible against Runnels, but instructed the jury that it could not consider it against the respondent. When Runnels took the stand in his own defense, he was asked on direct examination whether he had made the statement, and he flatly denied having done so. He also vigorously asserted that the substance of the statement imputed to him was false. He was then intensively cross-examined by the prosecutor, but stuck to his story in every particular. The respondent's counsel did not cross-examine Runnels, although he was, of course, fully free to do so. The respondent took the stand on his own behalf and told a story identical to that of Runnels as to the activities of the two on the night in question. Both the prosecutor and Runnels' counsel discussed the alleged confession in their closing arguments to the jury, and the trial judge repeated his instruction that it could be considered only against Runnels.
4
The jury found both defendants guilty as charged. After unsuccessful efforts to set aside the conviction in the California courts, the respondent applied for federal habeas corpus relief in the United States District Court for the Northern District of California, and while the case was pending there this Court decided Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, and Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100, holding that under certain circumstances the Confrontation Clause of the Sixth Amendment,1 applicable to the States through the Fourteenth,2 is violated when a codefendant's confession implicating the defendant is placed before the jury at their joint trial.3 The District Court ruled that the respondent's conviction had to be set aside under Bruton and Roberts, and the Court of Appeals for the Ninth Circuit affirmed. 422 F.2d 319 (1970). Petitioner then sought a writ of certiorari in this Court, contending, first, that there was no constitutional error under Bruton and Roberts, second, that any error there might have been was harmless beyond a reasonable doubt under the doctrine of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and, third, that the District Court should have required the respondent first to seek redress in the state courts, which had had no opportunity to consider the Bruton claim. We granted certiorari to consider these issues. 400 U.S. 901, 91 S.Ct. 136, 27 L.Ed.2d 137. Since we agree with the petitioner that there was no violation of the Constitution in this case, it is unnecessary to consider the other questions presented.
5
Runnels' out-of-court confession implicating the respondent was hearsay as to the latter, and therefore inadmissible against him under state evidence law. The trial judge so ruled, and instructed the jury that it must not consider any part of the statement in deciding whether or not the respondent was guilty. In Bruton, however, we held that, quite apart from the law of evidence, such a cautionary instruction to the jury is not an adequate protection for the defendant where the codefendant does not take the witness stand. We held that where the jury hears the codefendant's confession implicating the defendant, the codefendant becomes in substance, if not in form, a 'witness' against the defendant. The defendant must constitutionally have an opportunity to 'confront' such a witness. This the defendant cannot do if the codefendant refuses to take the stand.
6
It was clear in Bruton that the 'confrontation' guaranteed by the Sixth and Fourteenth Amendments is confrontation at trial—that is, that the absence of the defendant at the time the codefendant allegedly made the out-of-court statement is immaterial, so long as the declarant can be cross-examined on the witness stand at trial. This was confirmed in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489, where we said that '(v)iewed historically * * * there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.' Id., at 158, 90 S.Ct., at 1935. Moreover, 'where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem.' Id., at 162, 90 S.Ct., at 1937. This is true, of course, even though the declarant's out-of-court statement is hearsay as to the defendant, so that its admission against him, in the absence of a cautionary instruction, would be reversible error under state law. The Constitution as construed in Bruton, in other words, is violated only where the out-of-court hearsay statement is that of a declarant who is unavailable at the trial for 'full and effective' cross-examination.
7
The question presented by this case, then, is whether cross-examination can be full and effective where the declarant is present at the trial, takes the witness stand, testifies fully as to his activities during the period described in his alleged out-of-court statement, but denies that he made the statement and claims that its substance is false.
8
In affirming the District Court, the Court of Appeals relied heavily on the dictum of this Court in Douglas v. Alabama, 380 U.S. 415, 420, 85 S.Ct. 1074, 1077, 13 L.Ed.2d 934, that 'effective confrontation' of a witness who has allegedly made an out-of-court statement implicating the defendant 'was possible only if (the witness) affirmed the statement as his.' The Court in that case also remarked that the witness 'could not be cross-examined on a statement imputed to but not admitted by him.' Id., at 419, 85 S.Ct., at 1077. Of course, a witness can be cross-examined concerning a statement not 'affirmed' by him, but this dictum from Douglas was repeated in Bruton, supra, 391 U.S., at 127, 88 S.Ct., at 1623. In Douglas and Bruton (and in the other confrontation cases before Green)4 there was in fact no question of the effect of an affirmance or denial of the incriminating statement, since the witness or codefendant was in each case totally unavailable at the trial for any kind of cross-examination. The specific holding of the Court in Bruton was:
9
'Plainly, the introduction of (the codefendant's) confession added substantial, perhaps even critical, weight to the Government's case in a form not subject to cross-examination, since (the codefendant) did not take the stand. Petitioner thus was denied his constitutional right of confrontation.' 391 U.S., at 127—128, 88 S.Ct., at 1623.
10
This Court has never gone beyond that holding.
11
In California v. Green, supra, the defendant was accused of furnishing marihuana to a minor, partly on the basis of an unsworn statement, not subject to cross-examination, made by the minor himself while he was under arrest for selling the drug. When the minor, not a codefendant, took the stand at the defendant's trial, he claimed that he could not remember any of the incriminating events described in his out-of-court statement, although he admitted having made the statement and claimed that he believed it when he made it. The earlier statement was then introduced in evidence to show the truth of the matter asserted, and this Court held it admissible for that purpose. The circumstances of Green are inverted in this case. There, the witness affirmed the out-of-court statement but was unable to testify in court as to the underlying facts; here, the witness, Runnels, denied ever making an out-of-court statement but testified at length, and favorably to the defendant, concerning the underlying facts.
12
Had Runnels in this case 'affirmed the statement as his,' the respondent would certainly have been in far worse straits than those in which he found himself when Runnels testified as he did. For then counsel for the respondent could only have attempted to show through cross-examination that Runnels had confessed to a crime he had not committed, or, slightly more plausibly, that those parts of the confession implicating the respondent were fabricated. This would, moreover, have required an abandonment of the joint alibi defense, and the production of a new explanation for the respondent's presence with Runnels in the white Cadillac at the time of their arrest. To be sure, Runnels might have 'affirmed the statement' but denied its truthfulness, claiming, for example, that it had been coerced, or made as part of a plea bargain. But cross-examination by the respondents' counsel would have been futile in that event as will. For once Runnels had testified that the statement was false, it could hardly have profited the respondent for his counsel through cross-examination to try to shake that testimony. If the jury were to believe that the statement was false as to Runnels, it could hardly conclude that it was not false as to the respondent as well.
13
The short of the matter is that, given a joint trial and a common defense, Runnels' testimony respecting his alleged out-of-court statement was more favorable to the respondent than any that cross-examination by counsel could possibly have produced, had Runnels 'affirmed the statement as his.' It would be unrealistic in the extreme in the circumstances here presented to hold that the respondent was denied either the opportunity or the benefit of full and effective cross-examination of Runnels.
14
We conclude that where a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments. Accordingly, the judgment is reversed and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.
15
It is so ordered.
16
Reversed and remanded.
17
Mr. Justice HARLAN, concurring.
18
I join in the opinion and judgment of the Court. I would, however, go further and hold that, because respondent's conviction became final before this Court decided Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), he cannot avail himself of that new rule in subsequent federal habeas corpus proceedings. See Mackey v. United States, 401 U.S. 667, 675, 91 S.Ct. 1160, 1171, 28 L.Ed.2d 404, 410 (1971) (separate opinion of this writer).
19
It is difficult to fathom what public policy is served by opening the already overcrowed federal courts to claims such as these. Respondent's trial and appeals were, at the time they occurred, conducted in a manner perfectly consistent with then-prevailing constitutional norms. A reversal of the conviction now would either compel the State to place an already once-tried case again on its criminal docket, to be retried on substantially the same (but now more stale) evidence or else force the State to forego its interest in enforcing in this instance its criminal laws relating to kidnaping, robbery, and car theft because of the disappearance of evidence. Conversely, if federal habeas relief is denied on the merits, as it now is by this Court, the energies of the federal courts have been expended to no good purpose.
20
To justify such a serious interference with the State's powers to enforce its criminal law and the ability of federal courts to provide full, fair, and prompt hearings to those who have no other forum available should require the presence of a most substantial countervailing societal interest. But what interest is conceivably promoted by further adjudication of the contentions respondent urges upon us? Surely, indulging his claims does not serve the function of assuring that state courts properly apply governing constitutional standards. For this is precisely what the California courts did in this case. See, e.g., Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). Nor can it plausibly be argued that we perceive in this case serious issues as to whether respondent was in fact likely innocent of the crime for which he was convicted or whether he was subjected to an intolerable abuse of the prosecutorial function that rendered his trial fundamentally unfair.
21
The only rationale I can imagine that might support entertaining Bruton claims in federal habeas proceedings brought by state prisoners whose convictions and become final prior to the decision in Bruton and who had a full and fair opportunity to litigate their claims at trial and on appeal, is the notion that Bruton is somehow an unimpeachably correct decision, so infallibly just that other earlier decisions inconsistent with it must be treated as though they had never been made. Even were this a tenable position, the fact is, as the Court notes, that respondent is actually seeking an extension of the Bruton holding. More importantly, for me such an 'infallibility' argument could rest on nothing more than the fanciful notion that perception of ultimate constitutional verity is always to be found in those who 'came after' to this Court.
22
Such a drastic disruption of judicial processes and alteration of our traditional federal-state balance should be supported by more persuasive considerations than those which led the Court in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968), to hold the Bruton rule fully 'retroactive' in application. I venture to repeat what I stated earlier this Term in Mackey, supra:
23
'No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation on issues already resolved.' 401 U.S., at 667, 91 S.Ct., at 1179.
24
I think it unfortunate that substantial federal judicial energies have been expended, for virtually no purpose at all, on the adjudication of this habeas proceeding. Since the Court has decided to address the merits of respondent's contentions, however, I unreservedly join in its resolution of them.
25
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
26
With all deference, I think the Court asks and answers the wrong question in this case. Under the law of California at the time of respondent's trial, admissions to a police officer by a criminal defendant after his arrest could not be used as substantive evidence against other defendants, whether or not the declarant testified at trial.1 The question with which we are faced is not, therefore, whether the Sixth Amendment would forbid California from using Runnels' statement as substantive evidence against respondent O'Neil if it chose to do so. California rejected that choice: the jury in the present case was explicitly instructed that Runnels' statement could not be considered as evidence against O'Neil. The question therefore, is whether California, having determined for whatever reason that the statement involved in this case was inadmissible against respondent, may nevertheless present the statement to the jury that was to decide respondent's guilt, and instruct that jury that it should not be considered against respondent. I think our cases compel the conclusion that it may not.
27
In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), we reviewed a federal trial in which the extrajudicial confession of one Evans, which implicated both Evans and Bruton in the crime charged, was set before the jury along with instructions that it could be considered as evidence only against Evans. Evans himself did not testify. We held, first, that the Sixth Amendment in those circumstances forbade the use against Bruton of Evans' statement; and second, that since there was a 'substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining (Bruton's) guilt,' the Sixth Amendment required that Bruton's conviction be reversed. Id., at 126, 88 S.Ct., at 1622.
28
Shortly thereafter, we made clear that the second prong of our holding in Bruton—that instructing juries not to use one defendant's admissions against the other could not, in fact, prevent them from making such a use—had a constitutional basis.2 In Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968), we reviewed a state criminal trial presenting facts substantially identical to those presented in Bruton. Roberts and one Rappe had been jointly tried on charges to which Rappe had confessed to a police officer. Rappe's confession implicated both himself and Roberts; it was presented to the jury together with instructions that Rappe's extrajudicial statements could be considered as evidence only against Rappe, and not against Roberts. As in Bruton, we reversed. Roberts v. Russell, therefore, must stand for the proposition that as a constitutional matter, the risk that a jury will not follow instructions to disregard the statements of one codefendant against another is too great to tolerate in a criminal trial. For, as we pointed out in Bruton, 'If it were true that the jury disregarded the reference to the codefendant, no question would arise under the Confrontation Clause, because by hypothesis the case is treated as if the confessor made no statement inculpating the nonconfessor.' 391 U.S., at 126, 88 S.Ct., at 1622.
29
Bruton and Roberts, therefore, compel the conclusion that the Federal Constitution forbids the States to assume that juries can follow instructions that tell them to wipe their minds of highly damaging, incriminating admissions of one defendant that simultaneously incriminate another defendant whose guilt or innocence the jury is told to decide. In the present case, California itself has made the judgment that, although Runnels did take the stand, his extrajudicial statements could not be considered by the jury as evidence against respondent. Under Bruton and Roberts, California having made the determination that Runnels' statement could not be considered as evidence against O'Neil may not subvert its own judgment in some but not all cases by presenting the inadmissible evidence to the jury and telling the jury to disregard it. For the inevitable result of this procedure is that, in fact, different rules of evidence will be applied to different defendants depending solely upon the fortuity of whether they are jointly or separately tried. This is a discrimination that the Constitution forbids.
30
Accordingly, I would affirm the judgment below. In no event, however, would I reach the question decided by the Court in this case. For if we assume that the jury did follow its instructions to disregard Runnels' statement against respondent, his complaint is obviously without foundation. If we assume that it did not, we still need not reach the question whether California could constitutionally allow Runnels' statements to be used as evidence against respondent, for California has not purported to do so.3 Having made that judgment, California is bound to apply it to all defendants or to none. I dissent.
31
Mr. Justice MARSHALL, dissenting.
32
This case dramatically illustrates the need for the adoption of new rules regulating the use of joint trials. Here there is no question that Runnels' alleged statement to the police was not admissible under state law against O'Neil. But as my Brother BRENNAN points out and as this Court recognized in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), there is a very real danger that the statement was in fact used against O'Neil.
33
Those that argue for the use of joint trials contend that joint trials, although often resulting in prejudice to recognized rights of one or more of the codefendants, are justified because of the saving of time, money, and energy that result. But, as this case shows, much of the supposed saving is lost through protracted litigation that results from the impingement or near impingement on a codefendant's rights of confrontation and equal protection.
34
The American Bar Association's Project on Standards for Criminal Justice, Advisory Committee on the Criminal Trial, suggested that if a defendant in a joint trial moves for a severance because the prosecutor intends to introduce an out-of-court statement by his codefendant that is inadmissible against the moving defendant, then the trial court should require the prosecutor) to elect between a joint trial in which the statement is excluded; a joint trial at which the statement is admitted but the portion that refers to the moving defendant is effectively deleted; and severance.* I believe that the adoption of such a practice is the only way in which the recurring problems of confrontation and equal protection can be eliminated.
1
The Sixth Amendment to the Constitution provides that '(i)n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.'
2
See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934.
3
Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100, held that the decision in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, is applicable to the States and is to be applied retroactively.
4
Brookhart v. Janies, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314; Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255; Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284.
1
See People v. Aranda, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265 (1965); People v. Roberts, 40 Cal.2d 483, 254 P.2d 501 (1953). The California Evidence Code, presently in effect, did not become operative until January 1, 1967.
2
This point was explicitly made in Bruton itself by Mr. Justice Stewart:
'(C)ertain kinds of hearsay * * * are at once so damaging, so suspect, and yet so difficult to discount, that jurors cannot be trusted to give such evidence the minimal weight it logically deserves, whatever instructions the trial judge might give.' 391 U.S., at 138, 88 S.Ct., at 1629 (concurring opinion) (emphasis in original).
3
See n. 1, supra.
*
Section 2.3 of the American Bar Association Project on Standards for Criminal Justice, Joinder and Severance (Approved Draft 1968) provides:
'Severance of defendants.
'(a) When a defendant moves for a severance because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court should determine whether the prosecution intends to offer the statement in evidence at the trial. If so, the court should require the prosecuting attorney to elect one of the following courses:
'(i) a joint trial at which the statement is not admitted into evidence;
'(ii) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been effectively deleted; or
'(iii) severance of the moving defendant.'
| 01
|
402 U.S. 549
91 S.Ct. 1692
29 L.Ed.2d 170
UNITED STATES, Appellant,v.GREATER BUFFALO PRESS, INC., et al.
No. 821.
Argued April 19, 1971.
Decided June 1, 1971.
Syllabus
The United States brought this civil antitrust suit charging that the acquisition by Greater Buffalo Press (Buffalo) in 1955 of all the stock of International Color Printing Co. (International) violated § 7 of the Clayton Act; and that Buffalo, Hearst Corp., through its unincorporated division King Features Syndicate (King), Newspaper Enterprise Assn. (NEA), and others had conspired to restrain the sale of newspapers of the printing of color comic supplements in violation of § 1 of the Sherman Act. Before trial a consent decree was entered against Hearst. Buffalo, which does not control ownership of features or license them, prints the color supplements for newspapers and sells them. International prints color supplements only for King, which controls many popular comic features and is a licensor. International's owners wanted to sell rather than raise capital for modernization and expansion. International paid dividends every year, and in the year of sale its profits increased. Only King and Buffalso were considered as prospective purchasers; no others were even approached. After acquiring International, Buffalo controlled about 75% of the independent color comic supplement business and, through International, it entered into a 10-year contract with King to supply King's printing. The District Court dismissed the complaint after trial. As to the Clayton Act claim, it found two distinct lines of commerce: (1) printing of color comic supplements for newspapers not printing their own, and (2) printing of color comic supplements for syndicates selling copyrighted features to newspapers. That court also found the acquisition to be within the 'failing company' execption to § 7 of the Clayton Act. The United States appeals only from dismissal of the Clayton Act claim. The court did not reach the question of remedy. Held:
1. The line of commerce here is the color comic supplement printing business, which includes the printing of the supplements and their sale, and the 'area of effective competition' encompasses the business of Buffalo, International, and King. While there may be submarkets within this broad market, 'submarkets are not a basis for the disregard of a broader line of commerce that has economic significance.' Pp. 552—554.
2. The test of § 7 of the Clayton Act, whether the effect of an acquisition 'may be substantially to lessen competition,' is met here by Buffalo's control of about 75% of the independent color comic supplement printing business. P. 555.
3. The District Court erred in finding that the acquisition was within the 'failing company' exception, as the two requirements, (a) that International's resources were 'so depleted and the prospect of rehabilitation as remote that it faced the grave probability of a business failure,' and (b) that there was no other prospective purchaser, were not satisfied. Pp. 555—556.
4. The mere passage of time is no barrier to the divestiture of stock illegally acquired. P. 556.
5. The case is remanded to the District Court which has the initial responsibility of the drafting of a decree that will provide an appropriate and effective remedy. Pp. 556—557.
327 F.Supp. 305, reversed and remanded.
Daniel M. Friedman, Washington, D.C., for appellant.
Frank G. Raichle, Buffalo, N.Y., for appellees.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This is a civil antitrust case brought by the United States charging a violation of § 7 of the Clayton Act,1 as amended, 64 Stat. 1125, 15 U.S.C. § 18. The main thrust of the case involves the acquisition by Greater Buffalo Press, Inc. (Greater Buffalo), of all the stock of International Color Printing Co. (International). The complaint, at the secondary level, charged that Greater Buffalo, Hearst Corp., through its unincorporated division King Features Syndicate (King), Newspaper Enterprise Association, Inc. (NEA), and others had conspired to restrain the sale to newspapers of the printing of comic supplements in violation of § 1 of the Sherman Act, as amended, 26 Stat. 209, 15 U.S.C. § 1. It also charged that Hearst and NEA were violators of certain tying arrangements involving the licensing of comic features and the sale of comic supplements.2
2
Before trial a consent decree was entered against Hearst, enjoining King from entering into any agreement limiting competition in the printing of colorcomic comic supplements and barring any tying arrangement.
3
After full trial the District Court dismissed the complaint, 327 F.Supp. 305.3 The case came here under § 2 of the Expediting Act, as amended, 32 Stat. 823, 15 U.S.C. § 29. We noted probable jurisdiction, 400 U.S. 990, 91 S.Ct. 460, 27 L.Ed.2d 437. We reverse the judgment below.
4
The case involves the comic supplement business used weekends by most newspapers. Some papers print their own comic supplements; others purchase them.
5
Greater Buffalo prints color supplements for newspapers and sells them.
6
International prints color comic supplements for King only.
7
Most color comic supplements are printed by companies like Greater Buffalo and sold to newspapers. But individual newspapers contract for the purchase of comic features and it is those comics that Greater Buffalo prints for the particular papers.
8
The most popular comic features used by major metropolitan papers are controlled by King.
9
Greater Buffalo has no control over the ownership of features and therefore does not license them. As noted, however, King is a licensor; and moreover, it prints 'ready-print' supplements which are preprinted and supplied to many newspapers only with masthead change.
10
The District Court declared that the acquisition of International by Greater Buffalo has not, and will not, result in a substantial lessening of competition in the color comic supplement industry, and therefore did not constitute a violation of § 7 of the Clayton Act.
11
The basic error of the District Court, in our view, was in its finding that the significant lines of commerce involved in this action should be divided into 'two distinct and separate categories: (1) the printing of color comic supplements for newspapers which do not print their own, and (2) the printing of color comic supplements for syndicates engaged in the sale of copyrighted comic features to newspapers. These are the lines of commerce—to treat them together as one line of commerce, i.e., the printing and sale of color comic supplements would be to ignore the tremendous leverage of the syndicates which control the copyrighted features.'
12
As we read the record, the printing of color comic supplements and their sale are component parts of the color comic supplement printing business. One firm or company may both print and sell; another may print yet sell through a third organization, as does International through King. The 'area of effective competition,' Standard Oil Co. v. United States, 337 U.S. 293, 299—300 n. 5, 69 S.Ct. 1051, 1055—1056, 93 L.Ed. 1371, comprises the business of Greater Buffalo, International, and King. There may be submarkets within this broad market for antitrust purposes (Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1523—1524, 8 L.Ed.2d 510), but, as we said in United States v. Phillipsburg National Bank & Trust Co., 399 U.S. 350, 360, 90 S.Ct. 2035, 2041, 26 L.Ed.2d 658 'submarkets are not a basis for the disregard of a broader line of commerce that has economic significance.'
13
The District Court, proceeding from its premise as to the relevant market, analyzed the effects on the competition between Greater Buffalo and International resulting from the purchase of the stock of the latter. The true import would include not only that but also the effect on competition of the alliance with King, through the acquisition of King's client, International. The three of them were engaged in the single line of commerce consisting of the printing and distribution of color comic supplements. The printing of color comics is the same no matter for whom it is done or through whom they are distributed. The combination of those who print and sell comic supplements with those who sell comic supplements printed by others fastens more tightly the hold of the group on the side of supplement printing business. As a result of the acquisition, King has become dependent on Greater Buffalo for most of the printing which it sells in competition with Greater Buffalo. Greater Buffalo, it is said, had no long-term contract for King's business following the acquisition. Yet it had the almost certain right to print for King, its principal selling competitor, and a 10-year contract was entered into in the summer after the acquisition. There is evidence that Greater Buffalo has taken accounts from King since the acquisition. But existing competition between them is naturally restricted to sales at a price higher than Greater Buffalo charges King for printing; and it is not that fuller competition that could exist if King had an independent printing source.
14
King's executive officer proposed, after the stock acquisition of International, that King acquire its own color supplement printing capacity.
15
'Even if it cost money to do this and diminished profits, wouldn't that be better than the eventual loss of most, if not all, of our readyprint business?
16
'The Syndicate which for more than a quarter of a century has been number one in the readyprint field is now at best number two, and quite helpless. Newspaper history clearly emphasizes the difficulty, in fact hopelessness of regaining a lost position. There is plenty of current evidence to substantiate this.
17
'If Koessler (head of Greater Buffalo), because of what he has done the past few years, were to be attacked, in my opinion he would lose, but there is the danger, I suppose, of our becoming an accessory. Here is another reason why I think that if we were in the readyprint field with plants of our own it would restore a competitive aspect and certainly that wouldn't be discouraged in Washington.'
18
Prior to the acquisition, King put pressure on International to construct a southern plant to meet Greater Buffalo's proposed expansion there. Prior to the acquisition King also induced International to cut its price to meet competition and actually transferred a few contracts from International to Greater Buffalo because of prices.
19
Those practices ceased after the acquisition. Greater Buffalo acquired control of about 75% of independent color comic supplement printing, leaving King no reliable alternative supply. Greater Buffalo and International which had been competitors ceased to be such. The threat that newspaper customers will do their own printing is of course a factor in the competitive situation. But, according to the record, color comic supplement printing requires exacting mechanical techniques performed by specially trained personnel, and independent printers specializing in supplement printing and handling a high volume of business can produce a high quality product more economically than most newspapers.
20
The test of § 7 is whether the effect of an acquisition 'may be substantially to lessen competition.' The concentration of 75% of the independent color comic supplement printing business in one firm points firmly to the conclusion that the difficulties of new entrants becoming real competitors of Greater Buffalo are greatly increased.
21
We also disagree with the District Court that the acquisition of International by Greater Buffalo was within the 'failing company' exception to § 7 of the Clayton Act.
22
That test is met only if two requirements are satisfied: (1) that the resources of International were 'so depleted and the prospect of rehabilitation so remote that it faced the grave probability of a business failure * * *,' International Shoe Co. v. Federal Trade Comm'n, 280 U.S. 291, 302, 50 S.Ct. 89, 93, 74 L.Ed. 431, and (2) that there was no other prospective purchaser for it. Citizen Publishing Co. v. United States, 394 U.S. 131, 138, 89 S.Ct. 927, 931—932, 22 L.Ed.2d 148.
23
It is true that its owners wished to sell rather than raise the capital needed for modernization and expansion, and that King, its sole customer, was threatening to place some of its business elsewhere. Yet King had not threatened to invoke, nor had it invoked, the six-month cancellation provision in the contract. Its expansion plans were being actively pursued and it continued to pay dividends to its owners. Indeed in the year of the sale it had shown a substantial increase in profits.
24
Moreover, only King and Greater Buffalo were considered as prospective purchasers; the numerous other smaller color comic supplement printers were never even approached.
25
Since the District Court found no violation of § 7, it naturally did not reach the question of remedy though it said that if there were a violation, it would not warrant 'a court's exercising its discretion to order a divestiture fifteen years after the occurrence of the alleged illegal conduct.' That is not the law; the passage of time per se is no barrier to divestiture of stock illegally acquired. United States v. Du Pont, 353 U.S. 586, 590, 77 S.Ct. 872, 875—876, 1 L.Ed.2d 1057; 366 U.S. 316, 81 S.Ct. 1243, 6 L.Ed.2d 318. Divestiture performs several functions, the foremost being the liquidation of the illegally acquired market power. Schine Chain Theatres v. United States, 334 U.S. 110, 127—129, 68 S.Ct. 947, 956—958, 92 L.Ed. 1245.
26
We do not, however, reach the question of divestiture. a majority of the Court is of the view that the nature of the decree to be fashioned should be initially considered by the District Court. In that connection two additional questions will need to be passed on by the District Court.
27
First is the question of the consent decree entered with Hearst. As to it the District Court said: 'King Features may continue to engage in the practice of combining the sale of features and printing until the court shall determine the antitrust issue as to Greater Buffalo. The decree also provided that Hearst shall obey the antitrust laws during the pendency of the action.'
28
We do not have enough information about the consent decree and its operation and the related facts to know how it should now be integrated into a decree.
29
Second. In the fifties Greater Buffalo erected a printing plant at Lufkin, Texas, to improve its market in that area by saving transportation costs. There is some evidence that in 1950 Greater Buffalo made a moral commitment to certain newspapers to build a plant in the Deep South. A plant was constructed at Sylacauga, Alabama, after the acquisition of International.
30
There are cross-currents in the record which suggest that the Sylacauga plant was the product of International's wishes, rather than Greater Buffalo's and that the primary motive for Greater Buffalo's acquisition of International stock was to eliminate International's planned expansion in the South as a competitive threat.
31
The status of the Sylacauga plant is a matter to be considered by the District Court under the controlling precedents. See, e.g., United States v. Aluminum Co. of America, D.C., 247 F.Supp. 308, aff'd 382 U.S. 12, 86 S.Ct. 24, 15 L.Ed.2d 1.
32
The judgment is reversed and the cause remanded for the drafting of a decree and the making of such additional findings both as respects the consent decree and the Sylacauga plant as may be appropriate or necessary for an effective remedy.
33
Reversed and remanded.
1
Section 7 provides in part:
'That 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.'
2
A monopolization charge against Greater Buffalo was eliminated by an amended complaint.
3
The United States did not appeal from the dismissal against NEA.
| 78
|
402 U.S. 558
91 S.Ct. 1697
29 L.Ed.2d 178
UNITED STATES, Appellant,v.INTERNATIONAL MINERALS & CHEMICAL CORP.
No. 557.
Argued April 26, 1971.
Decided June 1, 1971.
Syllabus
Appellee was charged by information with shipping sulfuric and hydrofluosilicic acids in interstate commerce and that it 'did knowingly fail to show on the shipping papers the required classification of said property, to wit, Corrosive Liquid, in violation of 49 CFR 173.437,' issued pursuant to 18 U.S.C. § 834(a). Section 834(f) provides that whoever 'knowingly violates and such regulation' shall be fined and imprisoned. The District Court dismissed the information, holding that it did not charge a 'knowing violation' of the regulation. Held: The statute does not signal an exception to the general rule that ignorance of the law is no excuse. The word 'knowingly' in the statute pertains to knowledge of the facts, and where, as here, dangerous products are involved, the probability of regulation is so great that anyone who is aware that he is in possession of or dealing with them must be presumed to be aware of the regulation. Pp. 560—565.
Reversed.
John F. Dienelt, Washington, D.C., for appellant, pro hac vice, by special leave of Court.
Harold E. Spencer, Chicago, Ill., for appellee.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The information charged that appellee shipped sulfuric acid and hydrofluosilicic acid in interstate commerce and 'did knowingly fail to show on the shipping papers the required classfication of said property, to wit, Corrosive Liquid, in violation of 49 C.F.R. 173.427.'
2
Title 18 U.S.C. § 834(a) gives the Interstate Commerce Commission power to 'formulate regulations for the safe transportation' of 'corrosive liquids' and 18 U.S.C. § 834(f) states that whoever 'knowingly violates any such regulation' shall be fined or imprisoned.
3
Pursuant to the power granted by § 834(a) the regulatory agency1 promulgated the regulation already cited which reads in part:
4
'Each shipper offering for transportation any hazardous material subject to the regulations in this chapter, shall describe that article on the shipping paper by the shipping name prescribed in § 172.5 of this chapter and by the classification prescribed in § 172.4 of this chapter, and may add a further description not inconsistent therewith. Abbreviations must not be used.' 49 CFR § 173.427.
5
The District Court, relying primarily on Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367, ruled that the information did not charge a 'knowing violation' of the regulation and accordingly dismissed the information, 318 F.Supp. 1335.
6
The United States filed a notice of appeal to the Court of Appeals, 18 U.S.C. § 3731, and in reliance on that section later moved to certify the case to this Court which the Court of Appeals did; and we noted probable jurisdiction, 400 U.S. 990, 91 S.Ct. 451, 27 L.Ed.2d 437.
7
Here as in United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356, which dealt with the possession of hand grenades, strict or absolute liability is not imposed; knowledge of the shipment of the dangerous materials is required. The sole and narrow question is whether 'knowledge' of the regulation is also required. It is in that narrow zone that the issue of 'mens rea' is raised; and appellee bears down hard on the provision in 18 U.S.C. § 834(f) that whoever 'knowingly violates any such regulation' shall be fined, etc.
8
Boyce Motor Lines, Inc. v. United States, supra, on which the District Court relied, is not dispositive of the issue. It involved a regulation governing transporting explosives, inflammable liquids, and the like and required drivers to 'avoid, so far as practicable, and, where feasible, by prearrangement of routes, driving into or through congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings.' The statute punished whoever 'knowingly' violated the regulation. Id., at 339, 72 S.Ct., at 330. The issue of 'mens rea' was not raised below, the sole question turning on whether the standard of guilt was unconstitutionally vague. Id., at 340, 72 S.Ct., at 330—331. In holding the statute was not void for vagueness we said:
9
'The statute punishes only those who knowingly violate the Regulation. This requirement of the presence of culpable intent as a necessary element of the offense does much to destroy any force in the argument that application of the Regulation would be so unfair that it must be held invalid. That is evident from a consideration of the effect of the requirement in this case. To sustain a conviction, the Government not only must prove that petitioner could have taken another route which was both commercially practicable and appreciably safer (in its avoidance of crowded thoroughfares, etc.) than the one it did follow. It must also be shown that petitioner knew that there was such a practicable, safer route and yet deliberately took the more dangerous route through the tunnel, or that petitioner willfully neglected to exercise its duty under the Regulation to inquire into the availability of such an alternative route.
10
'In an effort to give point to its argument, petitioner asserts that there was no practicable route its trucks might have followed which did not pass through places they were required to avoid. If it is true that in the congestion surrounding the lower Hudson there was no practicable way of crossing the River which would have avoided such points of danger to a substantially greater extent than the route taken, then petitioner has not violated the Regulation. But that is plainly a matter for proof at the trial. We are not so conversant with all the routes in that area that we may, with no facts in the record before us, assume the allegations of the indictment to be false. We will not thus distort the judicial notice concept to strike down a regulation adopted only after much consultation with those affected and penalizing only those who knowingly violate its prohibition.' Id., at 342—343, 72 S.Ct., at 331—332.
11
The 'mens rea' that emerged in the foregoing discussion was not knowledge of the regulation but knowledge of the safer routes and those that were less safe within the meaning of the regulation. Mr. Justice Jackson, writing in dissent for himself, Mr. Justice Black, and Mr. Justice Frankfurter, correctly said:
12
'I do not suppose the Court intends to suggest that if petitioner knew nothing of the existence of such a regulation its ignorance would constitute a defense.' 342 U.S., at 345, 72 S.Ct., at 333.
13
There is no issue in the present case of the propriety of the delegation of the power to establish regulations and of the validity of the regulation at issue. We therefore see no reason why the word 'regulations' should not be construed as a shorthand designation for specific acts or omissions which violate the Act. The Act, so viewed, does not signal an exception to the rule that ignorance of the law is no excuse and is wholly consistent with the legislative history.
14
The failure to change the language in § 834 in 1960 should not lead to a contrary conclusion. The Senate approved an amendment deleting 'knowingly' and substituting therefor the language 'being aware that the Interstate Commerce Commission has formulated regulations for the safe transportation of explosives and other dangerous articles.'2 But the House refused to agree. As the House Committee stated, its version would 'retain the present law by providing that a person must 'knowingly' violate the regulations.'3
15
The House Committee noted there was a 'judicial pronouncement as to the standards of conduct that make a violation a 'knowing' violation.'4 In St. Johnsbury Trucking Co. v. United States, 220 F.2d 393, 397, Chief Judge Magruder had concluded that knowledge of the regulations was necessary. But whether the House Committee was referring to Boyce Motor Lines or the opinion of Chief Judge Magruder is not clear since both views of the section were before Congress.5 It is clear that strict liability was not intended. The Senate Committee felt it would be too stringent and thus rejected the position of the Interstate Commerce Commission.6 But despite protestations of avoiding strict liability the Senate version was very likely to result in strict liability because knowledge of the facts would have been unnecessary and anyone involved in the business of shipping dangerous materials would very likely know of the regulations involved. Thus in rejecting the Senate version the House was rejecting strict liability.7 But it is too much to conclude that in rejecting strict liability the House was also carving out an exception to the general rule that ignorance of the law is no excuse.
16
The principle that ignorance of the law is of defense applies whether the law be a statute or a duly promulgated and published regulation. In the context of these proposed 1960 amendments we decline to attribute to Congress the inaccurate view that that Act requires proof of knowledge of the law, as well as the facts, and that it intended to endorse that interpretation by retaining the word 'knowingly.' We conclude that the meager legislative history of the 1960 amendments makes unwarranted the conclusion that Congress abandoned the general rule and required knowledge of both the facts and the pertinent law before a criminal conviction could be sustained under this Act.
17
So far as possession, say, of sulfuric acid is concerned the requirement of 'mens rea' has been made a requirement of the Act as evidenced by the use of the word 'knowingly.' A person thinking in good faith that he was shipping distilled water when in fact he was shipping some dangerous acid would not be covered. As stated in Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288:
18
'The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.'
19
There is leeway for the exercise of congressional discretion in applying the reach of 'mens rea.' United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604. United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381, closely confined the word 'willfully' in the income tax law to include a purpose to bring about the forbidden result:
20
'He whose conduct is defined as criminal is one who 'willfully' fails to pay the tax, to make a return, to keep the required records, or to supply the needed information. Congress did not intend that a person, by reason of a bona fide misunderstanding as to his liability for the tax, as to his duty to make a return, or as to the adequacy of the records he maintained, should become a criminal by his mere failure to measure up to the prescribed standard of conduct. And the requirement that the omission in these instances must be willful, to be criminal, is persuasive that the same element is essential to the offense of failing to supply information.' Id., at 396, 54 S.Ct., at 226.
21
In Balint the Court was dealing with drugs, in Freed with hand grenades, in this case with sulfuric and other dangerous acids. Pencils, dental floss, paper clips may also be regulated. But they may be the type of products which might raise substantial due process questions if Congress did not require, as in murdock, 'mens rea' as to each ingredient of the offense. But where, as here and as in Balint and Freed, dangerous or deleterious devices or products or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation.
22
Reversed.
23
Mr. Justice STEWART, with whom Mr. Justice HARLAN and Mr. Justice BRENNAN join, dissenting.
24
This case stirs large questions—questions that go to the moral foundations of the criminal law. Whether postulated as a problem of 'mens rea,' of 'willfulness,' of 'criminal responsibility,' or of 'scienter,' the infliction of criminal punishment upon the unaware has long troubled the fair administration of justice. See, e.g., Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288; Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228; Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782. Cf. Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862. But there is no occasion here for involvement with this root problem of criminal jurisprudence, for it is evident to me that Congress made punishable only knowing violations of the regulation in question. That is what the law quite clearly says, what the federal courts have held, and what the legislative history confirms.
25
The statutory language is hardly complex. Section 834(a) of Title 18, U.S.C., gives the regulatory agency power to 'formulate regulations for the safe transportation' of, among other things, 'corrosive liquids.' Section 834(f) provides that '(w)hoever knowingly violates any such regulation shall be fined not more than $1,000 or imprisoned not more than one year, or both.' In dismissing the information in this case because it did not charge the appellee shipper with knowing violation of the applicable labeling regulation, District Judge Porter did no more than give effect to the ordinary meaning of the English language.
26
It is true, as the Court today points out, that the issue now before us was not directly involved in Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367, which dealt with a claim that the statute is unconstitutionally vague. But in holding the statute valid, the Court bottomed its reasoning upon the proposition that 'the presence of culpable intent (is) a necessary element of the offense.' Id., at 342, 72 S.Ct., at 332. Other federal courts, faced with the precise issue here presented, have held that the statute means exactly what it says—that the words 'knowingly violates any such regulation' mean no more and no less than 'knowingly violates any such regulation.' St. Johnsbury Trucking Co. v. United States, 220 F.2d 393 (CA1 1955); United States v. Chicago Express, 235 F.2d 785 (CA7 1956). Chief Judge Magruder filed a concurring opinion in the St. Johnsbury case, and he put the matter thus:
27
'If it be thought that the indicated requirement of proof will seriously hamper effective enforcement of the Interstate Commerce Commission regulations, the answer is that Congress is at liberty to fix that up by striking out * * * the prescribed element of mens rea—'knowingly'—as applied to violation of regulations of the sort here involved. * * *
28
'If a statute provides that it shall be an offense 'knowingly' to sell adulterated milk, the offense is complete if the defendant sells what he knows to be adulterated milk, even though he does not know of the existence of the criminal statute, on the time-honored principle of the criminal law that ignorance of the law is no excuse. But where a statute provides, as does 18 U.S.C. § 835, that whoever knowingly violates a regulation of the Interstate Commerce Commission shall be guilty of an offense, it would seem that a person could not knowingly violate a regulation unless he knows of the terms of the regulation and knows that what he is doing is contrary to the regulation. Here again the definition of the offense is within the control and discretion of the legislature.' Id., 220 F.2d, at 398.
29
In 1960 these judicial decisions were brought to the attention of the appropriate committees of Congress by the Interstate Commerce Commission, which asked Congress to overcome their impact by amending the law, either by simply deleting the word 'knowingly' or, alternatively, by substituting therefor the words 'being aware that the Interstate Commerce Commission has formulated regulations for the safe transportation of explosives and other dangerous articles.'1 The Senate passed a bill adopting the second alternative, based on a committee report that stated:
30
'Prosecution for violations of the Commission's transportation of explosives regulations has been extremely difficult because of the requirement in section 835 of the act that violators must have knowledge that they violated the Commission's regulations. While the committee believes that every reasonable precaution should be taken to provide for punishing those violating a statute whose purpose is to promote safety, the creation of an absolute liability is deemed too stringent.'2
31
The House, however, refused to accept the Senate's language and resubstituted the word 'knowingly,' its committee report stating:
32
'The present Transportation and Explosives Act requires that a violation 'knowingly' be committed before penalty may be inflicted for such violation.
33
Under the present law there is judicial pronouncement as to the standards of conduct that make a violation a 'knowing' violation. The instant bill would change substantially the quantum of proof necessary to prove a violation since it provides that 'any person who being aware that the Interstate Commerce Commission has formulated regulations for the safe transportation of explosives and other dangerous articles' is guilty if there is a noncompliance with the regulations. Such language may well create an almost absolute liability for violation. * * * Since the penalties prescribed for violation of the Explosives Act are substantial and since proof required to sustain a charge of violation of such regulations under the bill would require little more than proof that the violation occurred, it is the considered opinion of the committee that such a substantial departure in present law is not warranted. It is the purpose of this amendment to retain the present law by providing that a person must 'knowingly' violate the regulations.'3
34
Three days later the Senate agreed to the resubstitution of the word 'knowingly' by passing the House version of the bill.
35
The Court today thus grants to the Executive Branch what Congress explicitly refused to grant in 1960. It effectively deletes the word 'knowingly' from the law. I cannot join the Court in this exercise, requiring as it does such a total disregard of plain statutory language, established judicial precedent, and explicit legislative history.
36
A final word is in order. Today's decision will have little practical impact upon the prosecution of interstate motor carriers or institutional shippers. For interstate motor carriers are members of a regulated industry, and their officers, agents, and employees are required by law to be conversant with the regulations in question.4 As a practical matter, therefore, they are under a species of absolute liability for violation of the regulations despite the 'knowingly' requirement. This, no doubt, is as Congress intended it to be. Cf. United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48; United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604. Likewise, prosecution of regular shippers for violations of the regulations could hardly be impeded by the 'knowingly' requirement, for triers of fact would have no difficulty whatever in inferring knowledge on the part of those whose business it is to know, despite their protestations to the contrary. The only real impact of this decision will be upon the casual shipper, who might be any man, woman, or child in the Nation. A person who had never heard of the regulation might make a single shipment of an article covered by it in the course of a lifetime. It would be wholly natural for him to assume that he could deliver the article to the common carrier and depend upon the carrier to see that it was properly labeled and that the shipping papers were in order. Yet today's decision holds that a person who does just that is guilty of a criminal offense punishable by a year in prison. This seems to me a perversion of the purpose of criminal law.
37
I respectfully dissent from the opinion and judgment of the Court.
1
The regulatory authority originally granted the Interstate Commerce Commission was transferred to the Department of Transportation by 80 Stat. 939, 49 U.S.C. § 1655(e) (1964 ed., Supp. V).
2
See H.R.Rep.No.1975, 86th Cong., 2d Sess., 10—11, U.S.Code Cong. & Admin. News 1960, pp.3351, 3352.
3
Id., at 2, U.S.Code Cong. & Admin. News 1960, p. 3352.
4
Ibid, U.S.Code Cong. & Admin. News 1960, p. 3352.
5
See the HEW Staff Memorandum, id., at 16—19.
6
S.Rep.No.901, 86th Cong., 1st Sess., 3.
7
The Senate language might 'well create an almost absolute liability for violation.' H.R.Rep.No.1975, supra, at 2; U.S.Code Cong. & Admin. News 1960, p. 3352.
1
See H.R.Rep.No.1975, 86th Cong., 2d Sess., at 10—11.
2
S.Rep.No.901, 86th Cong., 1st Sess., 2—3.
3
H.R.Rep.No.1975, 86th Cong., 2d Sess., 2.
4
49 CFR § 397.02.
| 78
|
402 U.S. 690
91 S.Ct. 1760
29 L.Ed.2d 268
Peggy J. CONNOR, Mississippi Freedom Democratic Party, et al.v.Paul B. JOHNSON et al.No. —-.
June 3, 1971.
Dissenting Opinion June 4, 1971.
Rehearing Denied June 14, 1971.
See 403 U.S. 924, 91 S.Ct. 2220.
PER CURIAM.
1
On May 14, 1971, a three-judge District Court, convened in the Southern District of Mississippi, invalidated the Mississippi Legislature's latest reapportionment statute as allowing impermissibly large variations among House and Senate districts. The parties were requested by the court to submit suggested plans, and the applicants did so on May 17. All four plans suggested by applicants utilized single-member districts exclusively in Hinds County. The following day, May 18, 330 F.Supp. 506, the court issued its own plan, which included single- and multi-member districts in each House; Hinds County was constituted as a multi-member district electing five senators and 12 representatives. The court expressed some reluctance over use of multi-member districts in counties electing four or more senators or representatives, saying: '(I)t would be ideal if (such counties) could be divided into districts, for the election of one member (from) the district.' However, in view of the June 4, 1971, deadline for filing notices of candidacy, the court concluded that: '(W)ith the time left available it is a matter of sheer impossibility to obtain dependable data, population figures, boundary locations, etc. so as fairly and correctly to divide these counties into districts for the election of single members of the Senate or this House in time for the elections of 1971.' The court promised to appoint a special master in January 1972 to investigate the possibility of single-member districts for the general elections of 1975 and 1979.
2
Applicants moved the District Court to stay its order. The motion was denied on May 24. Applicants have now applied to this Court for a stay of the District Court's order and for an extension of the June 4 filing deadline until the District Court shall have provided single-member districts in Hinds County, or until the Attorney General or the District Court for the District of Columbia approves the District Court's apportionment plan under Section 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U.S.C. § 1973c (1964 ed., Supp. V).
3
Insofar as applicants ask relief under the Voting Rights Act the motion for stay is denied. A decree of the United States District Court is not within reach of Section 5 of the Voting Rights Act. However, other reasons lead us to grant the motion to the extent indicated below.
4
In failing to devise single-member districts, the court was under the belief that insufficient time remained until June 4, the deadline for the filing of notices of candidacy. Yet at that time June 4 was 17 days away and, according to an uncontradicted statement in the brief supporting this motion, the applicants were able to formulate and offer to the court four single-member district plans for Hinds County in the space of three days. Also according to uncontradicted statements, these plans were based on data which included county maps showing existing political subdivisions, the supervisory districts used by the Census Bureau for the taking of the 1970 census, official 1970 Census Bureau 'final population counts,' and 'computer print-out from Census Bureau official computer tapes showing total and white/Negro population by census enumeration districts.' Applicants also assert that no other population figures will subsequently become available.
5
The District Court's judgment was that single-member districting would be 'ideal' for Hinds County. We agree that when district courts are forced to fashion apportionment plans, single-member districts are preferable to large multi-member districts as a general matter. Furthermore, given the census information apparently available and the dispatch with which the applicants devised suggested plans for the District Court, it is our view that, on this record, the District Court had ample time to devise single-member districts for Hinds County prior to the June 4 filing deadline. While meeting the June 4 date is no longer possible, there is nothing before us to suggest any insurmountable barrier to devising such a plan by June 14, 1971. Therefore the motion for stay is granted and the judgment below is stayed until June 14. The District Court is instructed, absent insurmountable difficulties, to devise and put into effect a single-member district plan for Hinds County by that date. In light of this disposition, the District Court is directed to extend the June 4 filing date for legislative candidates from Hinds County to an appropriate date so that those candidates and the State of Mississippi may act in light of the new districts into which Hinds County will be divided.
6
It is so ordered.
7
Motion to stay granted.
8
THE CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice HARLAN dissent and reserve the right to file an opinion to that effect.
9
Mr. Justice BLACK, with whom THE CHIEF JUSTICE and Mr. Justice HARLAN join, dissenting.
10
I strongly dissent from the stay order of June 3, 1971, more particularly as it relates to a postponement of the Hinds County, Mississippi, election. Under Mississippi law and the decrees of the three-judge court, Hinds County candidates for the state legislature would be elected from the county at large. But this Court—at the eleventh hour—now commands the District Court to change its decree and divide Hinds County into single-member districts so that each voter there can vote for only one state representative and one state senator. Under Mississippi law, the final filing date for candidates is June 4. This Court's order now postpones that deadline to 'an appropriate date' after June 14. The order compels candidates who had expected to run county-wide to change their plans completely and to campaign only in a particular district which is part of the county. The confusion is compounded because the candidates do not yet know where the district lines will be drawn. Any candidate would be dumbfounded by the thought that his old district had suddenly been abolished on the eve of the filing date and he must now run in a new but unspecified district which is still only a dream in the eyes of the United States Supreme Court sitting a thousand miles from Hinds County.
11
This abrupt order by the Court is all the more astounding since this Court has consistently approved multi-member districts for state legislatures. Burnette v. Davis, 382 U.S. 42, 86 S.Ct. 181, 15 L.Ed.2d 35 (1965); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965); Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966).
12
I do not deny that this Court has the sheer, raw power to impose single-member districts on Hinds County. I do, however, strongly object to this Court's exercising that power by throwing a monkey wrench into the county election procedure at this late date.
13
Above all else, we should remember that no one of us is a resident of Mississippi or the Judicial Circuit of which Mississippi is a part. The judges who entered this order do reside in that Circuit, they heard the evidence and oral arguments, and examined the statistics. We should not forget they concluded that:
14
'There is no evading the fact that with the time left available it is a matter of sheer impossibility to obtain dependable data, population figures, boundary locations, etc. so as fairly and correctly to divide these counties into districts for the election of single members of the Senate or the House in time for the elections of 1971.'
15
The holding of a county election is a difficult, intricate, and time-consuming process. Orders must be filed, ballots printed, campaigning plans laid, and officials appointed. Many different procedures must be carefully synchronized if the elections are to be efficiently and fairly administered. But today the Court plunges into an unfamiliar arena and creates utter confusion for the voters, candidates, and officials of Hinds County by subjecting them to the judicial branch of Federal Government.
16
Needless to say I completely agree with the holding of the majority that a reapportionment plan formulated and ordered by a federal district court need not be approved by the United States Attorney General or the United States District Court for the District of Columbia. Under our constitutional system it would be strange indeed to construe § 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U.S.C. § 1973c (1964 ed., Supp. V), to require that actions of a federal court be stayed and reviewed by the Attorney General or the United States District Court for the District of Columbia
17
I dissent.
| 12
|
29 L.Ed.2d 406
91 S.Ct. 1763
403 U.S. 190
UNITED STATES et al., Petitioners,v.Anne Goyne MITCHELL et al.
No. 798.
Argued April 20, 1971.
Decided June 7, 1971.
Syllabus
A married woman domiciled in Louisiana, where under state law the wife has a present vested interest in community property equal to that of her husband, is personally liable for federal income taxes on her one-half interest in community income realized during the existence of the community, notwithstanding her subsequent renunciation under state law of her community rights, since federal, not state, law governs what is exempt from federal taxation. Pp. 194—206 5 Cir., 430 F.2d 1 and 7 reversed.
William Terry Bray, Austin, Tex., for petitioners.
Paul K. Kirkpatrick, Jr., Washington, D.C., for respondent Anne Goyne Mitchell.
Patrick M. Schott, New Orleans, La., for respondent Frances Angello.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
The petition here, arising from two cases below, presents the issue whether a married woman domiciled in the community property State of Louisiana is personally liable for federal income tax on half the community income realized during the existence of the community despite the exercise of her statutory right of exoneration. The issue arises in the context in one case, of a divorce, and, in the other, of the husband's death.
2
* Mrs. Mitchell and Mrs. Sims. The Commissioner of Internal Revenue determined deficiencies against Anne Goyne Mitchell and Jane Isabell Goyne Sims for the tax years 1955—1959, inclusive. These were for federal income tax and for additions to tax under § 6651(a) (failure to file return), § 6653(a) (underpayment due to negligence or intentional disregard of rules and regulations), and § 6654 (underpayment of estimated tax) of the Internal Revenue Code of 1954, 26 U.S.C. §§ 6651(a), 6653(a), and 6654. Mrs. Sims is the sister of Mrs. Mitchell. The determinations as to her were made under § 6901 as Mrs. Mitchell's transferee without consideration.
3
Anne Goyne and Emmett Bell Mitchell, Jr., were married in 1946. They lived in Louisiana. In July 1960, however, they began to live separately and apart. In August 1961 Mrs. Mitchell sued her husband in state court for separation. Upon his default, she was granted this relief. A final decree of divorce was entered in October 1962. In her separation suit Mrs. Mitchell prayed that she be allowed to accept the community of acquets and gains with benefit of inventory. However, taking advantage of the privilege granted her by Art. 2410 of the Louisiana Civil Code,1 she formally renounced the community on September 18, 1961. As a consequence, she received neither a distribution of community property nor a property settlement upon dissolution of her marriage. This renunciation served to exonerate her of 'debts contracted during the marriage.' Mrs. Mitchell earned $4,200 as a teacher during 1955 and 1956. From these earnings tax was withheld. Mr. Mitchell enjoyed taxable income during the five years in question. All income realized by both spouses during this period was community income.
4
Mrs. Mitchell had little knowledge of her husband's finances. She rarely knew the balance in the family bank account. She possessed a withdrawal privilege on that account, and occasionally exercised it. Her husband was in charge of the couple's financial affairs and did not usually consult his wife about them. She was aware of fiscal irresponsibilities on his part. She questioned him each year about tax returns. She knew returns were required, but relied on his assurances that he was filing timely returns and paying the taxes due. She signed no return herself and assumed that he had signed her name for her. In July 1960 she learned that, in fact, no returns had ever been filed for 1955—1959.
5
The deficiencies determined against Mrs. Mitchell were based upon half the community income. The Commissioner sought to collect the deficiencies from property Mrs. Mitchell inherited from her mother in 1964 and immediately transferred, without consideration to Mrs. Sims.
6
Mrs. Mitchell sought redetermination in the Tax Court. Judge Forrester held that under Louisiana community property law Mrs. Mitchell possessed an immediate vested ownership interest in half the community property income and was personally responsible for the tax on her share. He also ruled that this tax liability was not affected by her Art. 2410 renunciation. Mitchell v. Commissioner, 51 T.C. 641 (1969).
7
On appeal, the Fifth Circuit reversed, holding that by the renunciation Mrs. Mitchell avoided any federal income tax liability on the community income. Mitchell v. Commissioner of Internal Revenue, 430 F.2d 1 (CA5 1970).2 Judge Simpson dissented on the basis of Judge Forrester's opinion in the Tax Court. 430 F.2d, at 7.
8
Mrs. Angello. Throughout the calendar years 1959—1961 Mrs. Angello, who was then Frances Sparacio, lived with her husband, Jack Sparacio, in Louisiana. Community income was realized by the Sparacios during those years, but neither the husband nor the wife filed any returns. In 1965 the District Director made assessments against them for taxes, penalties, and interest, filed a notice of lien, and addressed a notice of levy to the Metropolitan Life Insurance Company, which had a policy outstanding on Mr. Sparacio's life. The insured died in March 1966 and the notice of levy (for that amount of tax and interest resulting from imputing to Mrs. Sparacio half the community's income for the tax years in question) attached to the proceeds of the policy. The widow, who was the named beneficiary, sued the Metropolitan in state court to recover the policy proceeds. The United States intervened to assert and protect its lien. The case was then removed to federal court. The Metropolitan paid the proceeds into the court registry and was dismissed from the case.
9
Each side then moved for summary judgment. Judge Christenberry granted the Government's motion and denied Mrs. Angello's. Despite the absence of any formal renunciation by Mrs. Angello under Art. 2410, the Government did not contend that she had accepted any benefits of the community. On appeal, the Court of Appeals reversed, relying on the same panel's decision in the Mitchell case. Angello v. Metropolitan Life Ins. Co., 430 F.2d 7 (CA5 1970). Judge Simpson again dissented.
10
We granted certiorari in both cases, 400 U.S. 1008, 91 S.Ct. 564, 27 L.Ed.2d 621 (1971), on a single petition filed under our Rule 23(5).
II
11
Sections 1 and 3 of the 1954 Code, 26 U.S.C. §§ 1 and 3, as have all of their predecessors since the Revenue Act of 1917,3 impose a tax on the taxable income 'of every individual.' The statutes, however, have not specified what that phrase includes.
12
Forty years ago this Court had occasion to consider the phrase in the face of various state community property laws and of §§ 210 and 211 of the Revenue Act of 1926. A husband and wife, residents of the State of Washington, had income in 1927 consisting of the husband's salary and of amounts realized from real and personal property of the community. The spouses filed separate returns for 1927 and each reported half the community income. Mr. Justice Roberts, in speaking for a unanimous Court (two Justices not participating) upholding this tax treatment, said:
13
'These sections lay a tax upon the net income of every individual. The Act goes no farther, and furnishes no other standard or definition of what constitutes an individual's income. The use of the word 'of' denotes ownership. It would be a strained construction, which, in the absence of further definition by Congress, should impute a broader significance to the phrase.' Poe v. Seaborn, 282 U.S. 101, 109, 51 S.Ct. 58, 75 L.Ed. 239 (1930).
14
The Court thus emphasized ownership. It looked to the law of the State as to the ownership of community property and of community income. It concluded that in Washington the wife has 'a vested property right in the community property, equal with that of her husband; and in the income of the community, including salaries or wages of either husband or wife, or both.' Id., at 111, 51 S.Ct., at 59. It noted that, in contrast, in an earlier case, United States v. Robbins, 269 U.S. 315, 46 S.Ct. 148, 70 L.Ed. 285 (1926), the opposite result had been reached under the then California law. But:
15
'In the Robbins case, we found that the law of California, as construed by her own courts, gave the wife a mere expectancy and that the property rights of the husband during the life of the community were so complete that he was in fact the owner.' 282 U.S., at 116, 51 S.Ct., at 61.
16
In companion cases the Court came to the same conclusion, as it had reached in Seaborn, with respect to the community property laws of Arizona, Texas, and Louisiana. Goodell v. Koch, 282 U.S. 118, 51 S.Ct. 62, 75 L.Ed. 247 (1930); Hopkins v. Bacon, 282 U.S. 122, 51 S.Ct. 62, 75 L.Ed. 249 (1930); Bender v. Pfaff, 282 U.S. 127, 51 S.Ct. 64, 75 L.Ed. 252 (1930). In the Louisiana case it was said:
17
'If the test be, as we have held it is, ownership of the community income, this case is probably the strongest of those presented to us, in favor of the wife's ownership of one-half of that income.' 282 U.S., at 131, 51 S.Ct., at 64.
18
The Court then reviewed the relevant Louisiana statutes and the power of disposition possessed by each spouse. It noted that, while the husband is the manager of the affairs of the marital partnership, the limitations upon the wrongful exercise of his power over community property are more stringent than in many other States. It concluded:
19
'Inasmuch, therefore, as in Louisiana, the wife has a present vested interest in community property equal to that of her husband, we hold that the spouses are entitled to file separate returns, each treating one-half of the community income as income of each 'of' them as an 'individual' as those words are used in §§ 210(a) and 211(a) of the Revenue Act of 1926.' 282 U.S., at 132, 51 S.Ct., at 65.
20
Two months later the Court arrived at the same conclusion with respect to California community property law and federal income tax under the 1928 Act, with the Government conceding the effectiveness, in this respect, of amendments made to the California statutes since the Robbins decision. United States v. Malcolm, 282 U.S. 792, 51 S.Ct. 184, 75 L.Ed. 714 (1931). Significantly, the Court there answered in the affirmative, citing Seaborn, Koch, and Bacon, the following certified question:
21
'Has the wife under section 161(a) of the Civil Code of California such an interest in the community income that she should separately report and pay tax on one-half of such income?' 282 U.S., at 794, 51 S.Ct., at 184.
22
This affirmative answer to a question phrased in terms of 'should,' not 'may,' clearly indicates that the wife had the obligation, not merely the right, to report half the community income.
23
The federal courts since Malcolm consistently have held that the wife is required to report half the community income and that the husband is taxable only on the other half. Gilmore v. United States, 290 F.2d 942, 154 Ct.Cl. 365 (1961), rev'd on other grounds, 372 U.S. 39, 83 S.Ct. 623, 9 L.Ed.2d 570 (1963); Van Antwerp v. United States, 92 F.2d 871 (CA9 1937); Simmons v. Cullen, 197 F.Supp. 179 (ND Cal. 1961); Dillin v. Commissioner, 56 T.C. 228 (1971); Kimes v. Commissioner, 55 T.C. 774 (1971); Hill v. Commissioner, 32 T.C. 254 (1959); Hunt v. Commissioner, 22 T.C. 228 (1954); Freundlich v. Commissioner, T.C.Memo. 1955—177; Cavanagh v. Commissioner, 42 B.T.A. 1037, 1044 (1940), aff'd, 125 F.2d 366 (CA9 1942). There were holdings from the Fifth Circuit to this apparent effect with respect to Louisiana taxpayers. Commissioner of Internal Revenue v. Hyman, 135 F.2d 49, 50 (1943); Saenger v. Commissioner of Internal Revenue, 69 F.2d 633 (1934); Smith v.Donnelly, 65 F.Supp. 415 (ED La. 1946). See Henderson's Estate v. Commissioner of Internal Revenue, 155 F.2d 310 (CA5 1946), and Gonzalez v. National Surety Corp., 266 F.2d 667, 669 (CA5 1959).
24
Thus, with respect to community income, as with respect to other income, federal income tax liability follows ownership. Blair v. Commissioner of Intrnal Revenue, 300 U.S. 5, 11—14, 57 S.Ct. 330, 332—334, 81 L.Ed. 465 (1937). See Hoeper v. Tax Commission, 284 U.S. 206, 52 S.Ct. 120, 76 L.Ed. 248 (1931). In the determination of ownership, state law controls. 'The state law creates legal interests but the federal statute determines when and how they shall be taxed.' Burnet v. Harmel, 287 U.S. 103, 110, 53 S.Ct. 74, 77, 77 L.Ed. 199 (1932); Morgan v. Commissioner of Internal Revenue, 309 U.S. 78, 80—81, 60 S.Ct. 424, 425—426, 84 L.Ed. 585 (1940); Helvering v. Stuart, 317 U.S. 154, 162, 63 S.Ct. 140, 144, 87 L.Ed. 154 (1942); Commissioner of Internal Revenue v. Harmon, 323 U.S. 44, 50—51, 65 S.Ct. 103, 106, 89 L.Ed. 60 (1944) (Douglas, J., dissenting); see Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967). The dates of the cited cases indicate that these principles are long established in the law of taxation.
III
25
This would appear to foreclose the issue for the present cases. Nevertheless, because respondents and the Court of Appeals stress the evanescent nature of the wife's interest in community property in Louisiana, a review of the pertinent Louisiana statutes and decisions is perhaps in order.
26
Every marriage contracted in Louisiana 'superinduces of right partnership or community of acquets or gains, if there be no stipulation to the contrary.' La.Civ.Code Ann., Art. 2399 (1971). 'This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. * * *' Art. 2402. The debts contracted during the marriage 'enter into the partnership or community of gains, and must be acquitted out of the common fund * * *.' Art. 2403. 'The husband is the head and master of the partnership or community of gains; he administers its effects, disposes of the revenues which they produce, and may alienate them by an onerous title, without the consent and permission of his wife.' Also 'he may dispose of the movable effects by a gratuitous and particular title, to the benefit of all persons.' Art. 2404. The same article, however, denies him the power of conveyance, 'by a gratuitous title,' of community immovables, or of the whole or a quota of the movables, unless for the children; and if the husband has sold or disposed of the common property in fraud of the wife, she has an action against her husband's heirs. At the dissolution of a marriage 'all effects which both husband and wife reciprocally possess, are presumed common effects or gains * * *.' Art. 2405. At dissolution, 'The effects which compose the partnership or community of gains, are divided into two equal portions between the husband and the wife, or between their heirs * * *.' Art. 2406. 'It is understood that, in the partition of the effects of the partnership or community of gains, both husband and wife are to be equally liable for their share of the debts contracted during the marriage, and not acquitted at the time of its dissolution.' Art. 2409. Then the wife and her heirs or assigns may 'exonerate themselves from the debts contracted during the marriage, by renouncing the partnership or community of gains.' Art. 2410. And the wife 'who renounces, loses every sort of right to the effects of the partnership or community of gains' except that 'she takes back all her effects, whether dotal or extradotal.' Art. 2411.
27
The Louisiana court has described and forcefully stated the nature of the community interest. In Phillips v. Phillips, 160 La. 813, 825—826, 107 So. 584, 588 (1926), it was said:
28
'The wife's half interest in the community property is not a mere expectancy during the marriage; it is not transmitted to her by or in consequence of a dissolution of the community. The title for half of the community property is vested in the wife the moment it is acquired by the community or by the spouses jointly, even though it be acquired in the name of only one of them. * * * There are loose expressions, appearing in some of the opinions rendered by this court, to the effect that the wife's half interest in the community property is only an expectancy, or a residuary interest, until the community is dissolved and liquidated. But that is contrary to the provisions of the Civil Code * * * and is contrary to the rule announced in every decision of this court since the error was first committed * * *.' Later, in Succession of Wiener, 203 La. 649, 14 So.2d 475 (1943), a state inheritance tax case, the court, after referring to Arts. 2399 and 2402 of the Civil Code, said:
29
'That this community is a partnership in which the husband and wife own equal shares, their title thereto vesting at the very instant such property is acquired, is well settled in this state. * * *'
30
'The conclusion we have reached in this case is in keeping with the decision of the United States Supreme Court in the case of Bender v. Pfaff, supra, where that court recognized that under the law of Louisiana the wife is not only vested with the ownership of half of the community property from the moment it is acquired, but is likewise the owner of half of the community income. * * *' 203 La., at 657 and 662, 14 So.2d, at 477 and 479.
31
After reviewing joint tenancy and tenancy by the entirety known to the common law, the court observed:
32
'In Louisiana, the situation is entirely different, for here the civil law prevails, and the theory of the civil law is that the acquisition of all property during the marriage is due to the joint or common efforts, labor, industry, economy, and sacrifices of the husband and wife; in her station the wife is just as much an agency in acquiring this property as is her husband. In Louisiana, therefore, the wife's rights in and to the community property do not rest upon the mere gratuity of her husband; they are just as great as his and are entitled to equal dignity. * * * She is the half-partner and owner of all acquisitions made during the existence of the community, whether they be property or income. * * *
33
'It is true that in weaving this harmonious commercial partnership around the intimate and sacred marital relationship, the framers of our law and its codifiers saw fit, in their wisdom, to place the husband at the head of the partnership, but this did not in any way affect the status of the property or the wife's ownership of her half thereof. * * * And the husband was made the managing partner of the community and charged with the administration of its effects, as well as with the alienation of its effects and revenues by onerous title, because he was deemed the best qualified to act.' 203 La., at 665—667, 14 So.2d, at 480—481.
34
The court then outlined in detail the various protections afforded by Louisiana law to the wife and concluded:
35
'It is obvious, therefore, that the wife's interest in the community property in Louisiana does not spring from any fiction of the law or from any gift or act of generosity on the part of her husband but, instead, from an express legal contract of partnership entered into at the time of the marriage. There is no substantial difference between her interest therein and the interest of an ordinary member of a limited or ordinary partnership, the control and management of whose affairs has, by agreement, been entrusted to a managing partner. The only real difference is that the limitations placed on the managing partner in the community partnership are fixed by law, while those placed on the managing partner in an ordinary or limited partnership are fixed by convention or contract.' 203 La., at 669, 14 So.2d, at 481—482.
36
The husband thus is the manager and agent of the Louisiana community, but his powers as manager do not serve to defeat the ownership rights of the wife.
37
These principles repeatedly have found expression in Louisiana cases. United States Fidelity & Guaranty Co. v. Green, 252 La. 227, 232—233, 210 So.2d 328, 330 (1968); Gebbia v. City of New Orleans, 249 La. 409, 415—416, 187 So.2d 423, 425 (1966); Azar v. Azar, 239 La. 941, 946, 120 So.2d 485, 487 (1960); Messersmith v. Messersmith, 229 La. 495, 507, 86 So.2d 169, 173 (1956); Dixon v. Dixon's Executors, 4 La. 188 (1832).
38
This Court recognized these Louisiana community property principles in the Wiener estate's federal estate tax litigation. Fernandez v. Wiener, 326 U.S. 340, 66 S.Ct. 178, 90 L.Ed. 116 (1945). There the inclusion in the decedent's gross estate of the entire community property was upheld for purposes of the federal estate tax which is an excise tax. Mr. Chief Justice Stone noted the respective interests of the spouses when, in the following language, he spoke of the effect of death:
39
'As we have seen, the death of the husband of the Louisiana marital community not only operates to transfer his rights in his share of the community to his heirs or those taking under his will. It terminates his expansive and sometimes profitable control over the wife's share, and for the first time brings her half of the property into her full and exclusive possession, control and enjoyment. The cessation of these extensive powers of the husband, even though they were powers over property which he never 'owned,' and the establishment in the wife of new powers of control over her share, though it was always hers, furnish appropriate occasions for the imposition of an excise tax.
40
'Similarly, with the death of the wife, her title or ownership in her share of the community property ends, and passes to her heirs or other appointees. More than this, her death, by ending the marital community, liberates her husband's share from the restrictions which the existence of the community had placed upon his control of it. * * * 'This redistribution of powers and restrictions upon power is brought about by death notwithstanding that the rights in the property subject to these powers and restrictions were in every sense 'vested' from the moment the community began. * * *' 326 U.S., at 355—356, 66 S.Ct., at 186.
41
Thus the Louisiana statutes and cases also seem to foreclose the claims advanced by the respondents.
IV
42
Despite all this, despite the concession that the wife's interest in the community property is not a mere expectancy,4 and despite the further concession that she has a vested title in, and is the owner of, a half share of the community income,5 respondents take the position that somehow the wife's interest is insufficient to make her liable for federal income tax computed on that half of the community income.
43
It is said that her right to renounce the community and to place herself in the same position as if it had never existed is substantive; that the wife is not personally liable for a community debt; that it is really the community as an entity, not the husband or the wife, that owns the property; and that Seaborn and its companion cases were concerned only with the right to split income, not with the obligation so to do. It is also said that the wife's dominion over the community property is nonexistent in Louisiana; that the husband administers the community's affairs as he sees fit; that he is not required to account to the wife, even for mismanagement, unless he enriches his estate at her expense by fraud; that she has no way to terminate the community other than by suit for separation, and then only by showing mismanagement on his part that threatens her separate estate; that her status is imposed by law, as contrasted with a commercial partnership where status is consensual; that she has no legal right to obtain the information necessary to file a tax return or to obtain the funds with which to pay the tax; and that Robbins authorizes taxing the whole of the community income to the husband. The same arguments, however, were advanced in Seaborn, 282 U.S., at 103—105, 51 S.Ct., at 58, and in its companion cases, 282 U.S., at 119, 123, and 128, 51 S.Ct., at 62, 63, 64, and were unavailing there, 282 U.S., at 111—113, 51 S.Ct., at 59—60. They do not persuade us here. Specifically, the power to renounce, granted by Article 2410, is of no confort to the wife-taxpayer. As Judge Forrester aptly expressed it, 51 T.C., at 646, Mrs. Mitchell's renunciation 'came long after her liabilities for the annual income taxes here in issue had attached.' Further, '(t)his right of the wife to renounce or repudiate must not be misconstrued as an indication that she had never owned and possessed her share, for that fact was not denied; but she did have, under the principles of community property, the right to revoke her ownership and possession. * * *' 1 W. deFuniak, Principles of Community Property § 218, p. 621 (1943).
44
The results urged by the respondents might follow, of course, in connection with a tax or other obligation the collection of which is controlled by state law. But an exempt status under state law does not bind the federal collector. Federal law governs what is exempt from federal levy.
45
Section 6321 of the 1954 Code imposes a lien for the income tax 'upon all property and rights to property * * * belonging to' the person liable for the tax. Section 6331(a) authorizes levy 'upon all property and rights to property * * * belonging to such person * * *.' What is exempt from levy is specified in § 6334(a). Section 6334(c) provides, 'Notwithstanding any other law of the United States, no property or rights to property shall be exempt from levy other than the property specifically made exempt by subsection (a).' This language is specific and it is clear and there is no room in it for automatic exemption of property that happens to be exempt from state levy under state law. United States v. Bess, 357 U.S. 51, 56—57, 78 S.Ct. 1054, 1057—1058, 2 L.Ed.2d 1135 (1958); Shambaugh v. Scofield, 132 F.2d 345 (CA5 1942); United States v. Heffron, 158 F.2d 657 (CA9), cert. denied, 331 U.S. 831, 67 S.Ct. 1510, 91 L.Ed. 1845 (1947); Treas.Reg. § 301.6334—1(c). See Birch v. Dobt, 2 Ariz.App. 228, 407 P.2d 417 (1965). As a consequence, state law which exempts a husband's interest in community property from his premarital debts does not defeat collection of his federal income tax liability for premarital tax years from his interest in the community. United States v. Overman, 424 F.2d 1142, 1145 (CA9 1970); In re Ackerman, 424 F.2d 1148 (CA9 1970). The result as to Mrs. Mitchell and Mrs. Angello is no different.
46
It must be conceded that these cases are 'hard' cases and exceedingly unfortunate for the two women taxpayers.6 Mrs. Mitchell loses the benefit of her inheritance from her mother, an inheritance that ripened after the dissolution of her marriage. Mrs. Angello loses her beneficiary interest in her deceased husband's life insurance policy. This takes place with each wife not really aware of the community tax situation, and not really in a position to ascertain the details of the community income. The law, however, is clear. The taxes were due. They were not paid. Returns were not even filed. The 'fault,' if fault there be, lies with the four taxpayers and flows from the settled principles of the community property system. If the wives were to prevail here, they would have the best of both worlds.
47
The remedy is in legislation. An example is Pub.L. 91—679 of January 12, 1971, 84 Stat. 2063, adding to the Code subsection (e) of § 6013 and the final sentence of § 6653(b). These amendments afford relief to an innocent spouse, who was a party to a joint return, with respect to omitted income and fraudulent underpayment. Relief of that kind is the answer to the respondents' situation.
48
The judgment in each case is reversed.
49
It is so ordered.
50
Reversed.
1
Art. 2410. 'Both the wife and her heirs or assigns have the privilege of being able to exonerate themselves from the debts contracted during the marriage, by renouncing the partnership or community of gains.'
2
Accord, with respect to Texas law, Ramos v. Commissioner of Internal Revenue, 429 F.2d 487 (CA5 1970).
3
Internal Revenue Code of 1939, §§ 11 and 12; Revenue Act of 1938, §§ 11 and 12, 52 Stat. 452, 453; Revenue Act of 1936, §§ 11 and 12, 49 Stat. 1653; Revenue Act of 1934, §§ 11 and 12, 48 Stat. 684; Revenue Act of 1932, §§ 11 and 12, 47 Stat. 174; Revenue Act of 1928, §§ 11 and 12, 45 Stat. 795, 796; Revenue Act of 1926, §§ 210 and 211, 44 Stat. 21; Revenue Act of 1924, §§ 210 and 211, 43 Stat. 264, 265; Act of March 4, 1923, 42 Stat. 1507; Revenue Act of 1921, §§ 210 and 211, 42 Stat. 233; Revenue Act of 1918, §§ 210 and 211, 40 Stat. 1062; Revenue Act of 1917, §§ 1 and 201, 40 Stat. 300, 303.
4
Angello Brief 2.
5
Angello Brief 2, 9.
6
Of course, as Baron Rolfe long ago observed, hard cases 'are apt to introduce bad law.' Winterbottom v. Wright, 10 M. & W. 109, 116, 152 Eng.Rep. 402, 406 (1842).
| 1112
|
403 U.S. 88
91 S.Ct. 1790
29 L.Ed.2d 338
Eugene GRIFFIN et al., Petitioners,v.Lavon BRECKENRIDGE et al.
No. 144.
Argued Jan. 13 and 14, 1971.
Decided June 7, 1971.
Syllabus
Petitioners, Negro citizens of Mississippi, filed a damages action under 42 U.S.C. § 1985(3), charging that respondents, white citizens of Mississippi, conspired to assault petitioners, who were passengers 'travelling upon the federal, state, and local highways' in an automobile driven by one Grady, a citizen of Tennessee, for the purpose of preventing them 'and other Negro-Americans, through * * * force, violence and intimidation, from seeking the equal protection of the laws and from enjoying the equal rights, privileges and immunities of citizens under the laws of the United States and the State of Mississippi,' including rights to free speech, assembly, association, and movement, and the right not to be enslaved. The complaint alleged that pursuant to the conspiracy respondents, mistakenly believing Grady to be a civil rights worker, blocked the travellers' passage on the public highways, forced them from the car, held them at bay with firearms, and amidst threats of murder clubbed them, inflicting serious physical injury. Section 1985(3) provides: 'If two or more persons * * * conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving * * * any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws (and) in any case of conspiracy set forth in this section, if one or more persons engaged therein do * * * any act in furtherance of the object of such conspiracy, whereby another is injured * * * or deprived of * * * any right or privilege of a citizen of the United States, the party so injured or deprived' may have a cause of action for damages against the conspirators. The District Court dismissed the complaint for failure to state a cause of action, relying on Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253, where the Court in order to avoid difficult constitutional questions, in effect construed § 1985(3) to reach only conspiracies under color of state law. The Court of Appeals affirmed. Held:
1. Sec. 1985(3) does not require state action but reaches private conspiracies, such as the one alleged in the complaint here, that are aimed at invidiously discriminatory deprivation of the equal enjoyment of rights secured to all by law, as is clearly manifested by the wording and legislative history of the statute and companion statutory provisions, and the constitutional impediments that influenced the Court's construction of the statute in Collins, supra, as is clear from more recent decisions, simply do not exist. Pp. 95—103.
2. Congress had the constitutional authority to reach a private conspiracy of the sort alleged in the complaint in this case both under § 2 of the Thirteenth Amendment and under its power to protect the right of interstate travel. Pp. 104—106.
410 F.2d 817, reversed and remanded.
Stephen J. Pollak, Washington, D.C., for the petitioners.
Lawrence G. Wallace, Washington, D.C., for United States, as amicus curiae, by special leave of Court.
W. D. Moore, Philadelphia, Miss., for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
This litigation began when the petitioners filed a complaint in the United States District Court for the Southern District of Mississippi, seeking compensatory and punitive damages and alleging, in substantial part, as follows:
2
'2. The plaintiffs are Negro citizens of the United States and residents of Kemper County, Mississippi. * * * '3. The defendants, Lavon Breckenridge and James Calvin Breckenridge, are white adult citizens of the United States residing in DeKalb, Kemper County, Mississippi.
3
'4. On July 2, 1966, the * * * plaintiffs * * * were passengers in an automobile belonging to and operated by R. G. Grady of Memphis, Tennessee. They were travelling upon the federal, state and local highways in and about DeKalb, Mississippi, performing various errands and visiting friends.
4
'5. On July 2, 1966 defendants, acting under a mistaken belief that R. G. Grady was a worker for Civil Rights for Negroes, wilfully and maliciously conspired, planned, and agreed to block the passage of said plaintiffs in said automobile upon the public highways, to stop and detain them and to assault, beat and injure them with deadly weapons. Their purpose was to prevent said plaintiffs and other Negro-Americans, through such force, violence and intimidation, from seeking the equal protection of the laws and from enjoying the equal rights, privileges and immunities of citizens under the laws of the United States and the State of Mississippi, including but not limited to their rights to freedom of speech, movement, association and assembly; their right to petition their government for redress of their grievances; their rights to be secure in their persons and their homes; and their rights not to be enslaved nor deprived of life and liberty other than by due process of law.
5
'6. Pursuant to their conspiracy, defendants drove their truck into the path of Grady's automobile and blocked its passage over the public road. Both defendants then forced Grady and said plaintiffs to get out of Grady's automobile and prevented said plaintiffs from escaping while defendant James Calvin Breckenridge clubbed Grady with a blackjack, pipe or other kind of club by pointing firearms at said plaintiffs and uttering threats to kill and injure them if defendants' orders were not obeyed, thereby terrorizing them to the utmost degree and depriving them of their liberty.
6
'7. Pursuant to their conspiracy, defendants wilfully, intentionally, and maliciously menaced and assaulted each of the said plaintiffs by pointing firearms and wielding deadly blackjacks, pipes or other kind of clubs, while uttering threats to kill and injure said plaintiffs, causing them to become stricken with fear of immediate injury and death and to suffer extreme terror, mental anguish, and emotional and physical distress.
7
'8. Pursuant to defendants' conspiracy, defendant James Calvin Breckenridge then wilfully, intentionally and maliciously clubbed each of said plaintiffs on and about the head, severely injuring all of them, while both defendants continued to assault said plaintiffs and prevent their escape by pointing their firearms at them.
8
* * * * * *
9
'12. By their conspiracy and acts pursuant thereto, the defendants have wilfully and maliciously, directly and indirectly, intimidated and prevented the * * * plaintiffs * * * and other Negro-Americans from enjoying and exercising their rights, privileges and immunities as citizens of the United States and the State of Mississippi, including but not limited to, their rights to freedom of speech, movement, association and assembly; the right to petition their government for redress of grievances; their right to be secure in their person; their right not to be enslaved nor deprived of life, liberty or property other than by due process of law, and their rights to travel the public highways without restraint in the same terms as white citizens in Kemper County, Mississippi * * *.'
10
The jurisdiction of the federal court was invoked under the language of Rev.Stat. § 1980, 42 U.S.C. § 1985(3), which that provides:
11
'If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving either directly or indirectly, any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws (and) in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.'
12
The District Court dismissed the complaint for failure to state a cause of action, relying on the authority of this Court's opinion in Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253, which in effect construed the above language of § 1985(3) as reaching only conspiracies under color of state law. The Court of Appeals for the Fifth Circuit affirmed the judgment of dismissal. 410 F.2d 817. Judge Goldberg's thorough opinion for that court expressed 'serious doubts' as to the 'continued vitality' of Collins v. Hardyman, id., at 823, and stated that 'it would not surprise us if Collins v. Hardyman were disapproved and if § 1985(3) were held to embrace private conspiracies to interfere with rights of national citizenship,' id., at 825—826 (footnote omitted), but concluded that '(s)ince we may not adopt what the Supreme Court has expressly rejected, we obediently abide the mandate in Collins,' id., at 826—827. We granted certiorari, 397 U.S. 1074, 90 S.Ct. 1525, 25 L.Ed.2d 808, to consider questions going to the scope and constitutionality of 42 U.S.C. § 1985(3).
13
* Collins v. Hardyman was decided 20 years ago. The complaint in that case alleged that the plaintiffs were members of a political club that had scheduled a meeting to adopt a resolution opposing the Marshall Plan, and to send copies of the resolution to appropriate federal officials; that the defendants conspired to deprive the plaintiffs of their rights as citizens of the United States peaceably to assemble and to equal privileges and immunities under the laws of the United States; that, in furtherance of the conspiracy, the defendants proceeded to the meeting site and, by threats and violence, broke up the meeting, thus interfering with the right of the plaintiffs to petition the Government for the redress of grievances; and that the defendants did not interfere or conspire to interfere with the meetings of other political groups with whose opinions the defendants agreed. The Court held that this complaint did not state a cause of action under § 1985(3):1
14
'The complaint makes no claim that the conspiracy or the overt acts involved any action by state officials, or that defendants even pretended to act under color of state law. It is not shown that defendants had or claimed any protection or immunity from the law of the State or that they in fact enjoyed such because of any act or omission by state authorities.' 341 U.S., at 655, 71 S.Ct., at 939.
15
'What we have here is not a conspiracy to affect in any way these plaintiffs' equality of protection by the law, or their equality of privileges and immunities under the law. There is not the slightest allegation that defendants were conscious of or trying to influence the law, or were endeavoring to obstruct or interfere with it. * * * Such private discrimination is not inequality before the law unless there is some manipulation of the law or its agencies to give sanction or sanctuary for doing so.' Id., at 661, 71 S.Ct., at 942.
16
The Court was careful to make clear that it was deciding no constitutional question, but simply construing the language of the statute, or more precisely, determining the applicability of the statute to the facts alleged in the complaint:2
17
'We say nothing of the power of Congress to authorize such civil actions as respondents have commenced or otherwise to redress such grievances as they assert. We think that Congress has not, in the narrow class of conspiracies defined by this statute, included the conspiracy charged here. We therefore reach no constitutional questions.' Id., at 662, 71 S.Ct., at 942.
18
Nonetheless, the Court made equally clear that the construction it gave to the statute was influenced by the constitutional problems that it thought would have otherwise been engendered:
19
'It is apparent that, if this complaint meets the requirements of this Act, it raises constitutional problems of the first magnitude that, in the light of history, are not without difficulty. These would include issues as to congressional power under and apart from the Fourteenth Amendment, the reserved power of the States, the content of rights derived from national as distinguished from state citizenship, and the question of separability of the Act in its application to those two classes of rights.' Id., at 659, 71 S.Ct., at 940.
20
Mr. Justice Burton filed a dissenting opinion, joined by Mr. Justice Black and Mr. Justice Douglas. The dissenters thought that '(t)he language of the statute refutes the suggestion that action under color of state law is a necessary ingredient of the cause of action which it recognizes.' Id., at 663, 71 S.Ct., at 942. Further the dissenters found no constitutional difficulty in according to the statutory words their apparent meaning:
21
'Congress certainly has the power to create a federal cause of action in favor of persons injured by private individuals through the abridgment of federally created constitutional rights. It seems to me that Congress has done just this in (§ 1985(3)). This is not inconsistent with the principle underlying the Fourteenth Amendment. That amendment prohibits the respective states from making laws abridging the privileges or immunities of citizens of the United States or denying to any person within the jurisdiction of a state the equal protection of the laws. Cases holding that those clauses are directed only at state action are not authority for the contention that Congress may not pass laws supporting rights which exist apart from the Fourteenth Amendment.' Id., at 664, 71 S.Ct., at 943.
II
22
Whether or not Collins v. Hardyman was correctly decided on its own facts is a question with which we need not here be concerned. But it is clear, in the light of the evolution of decisional law in the years that have passed since that case was decided, that many of the constitutional problems there perceived simply do not exist. Little reason remains, therefore, not to accord to the words of the statute their apparent meaning. That meaning is confirmed by judicial construction of related laws, by the structural setting of § 1995(3) itself, and by its legislative history. And a fair reading of the allegations of the complaint in this case clearly brings them within this meaning of the statutory language. As so construed, and as applied to this complaint, we have no doubt that the statute was within the constitutional power of Congress to enact.
III
23
We turn, then, to an examination of the meaning of § 1985(3). On their face, the words of the statute fully encompass the conduct of private persons. The provision speaks simply of 'two or more persons in any State or Territory' who 'conspire or go in disguise on the highway or on the premises of another.' Going in disguise, in particular, is in this context an activity so little associated with official action and so commonly connected with private marauders that this clause could almost never be applicable under the artificially restrictive construction of Collins. And since the 'going in disguise' aspect must include private action, it is hard to see how the conspiracy aspect, joined by a disjunctive, could be read to require the involvement of state officers.
24
The provision continues, specifying the motivation required 'for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.' This language is, of course, similar to that of § 1 of the Fourteenth Amendment, which in terms speaks only to the States,3 and judicial thinking about what can constitute an equal protection deprivation has, because of the Amendment's wording, focused almost entirely upon identifying the requisite 'state action' and defining the offending forms of state law and official conduct. A century of Fourteenth Amendment adjudication has, in other words, made it understandably difficult to conceive of what might constitute a deprivation of the equal protection of the laws by private persons. Yet there is nothing inherent in the phrase that requires the action working the deprivation to come from the State. See, e.g., United States v. Harris, 106 U.S. 629, 643, 1 S.Ct. 601, 612, 27 L.Ed. 290. Indeed, the failure to mention any such requisite can be viewed as an important indication of congressional intent to speak in § 1985(3) of all deprivations of 'equal protection of the laws' and 'equal privileges and immunities under the laws,' whatever their source.
25
The approach of this Court to other Reconstruction civil rights statutes in the years since Collins has been to 'accord (them) a sweep as broad as (their) language.' United States v. Price, 383 U.S. 787, 801, 86 S.Ct. 1152, 1160, 16 L.Ed.2d 267; Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437, 88 S.Ct. 2186, 2202, 20 L.Ed.2d 1189. Moreover, very similar language in closely related statutes has early and late received an interpretation quite inconsistent with that given to § 1985(3) in Collins. In construing the exact criminal counterpart of § 1985(3), the Court in United States v. Harris, supra, observed that the statute was 'not limited to take effect only in case (of state action),' id., at 639, 1 S.Ct., at 609, but 'was framed to protect from invasion by private persons the equal privileges and immunities under the laws of all persons and classes of persons,' id., at 637, 1 S.Ct., at 607. In United States v. Williams, 341 U.S. 70, 71 S.Ct. 581, 95 L.Ed. 758, the Court considered the closest remaining criminal analogue to § 1985(3), 18 U.S.C. § 241.4 Mr. Justice Frankfurter's plurality opinion, without contravention from the concurrence or dissent, concluded that 'if language is to carry any meaning at all it must be clear that the principal purpose of (§ 241), unlike (18 U.S.C. § 242), was to reach private action rather than officers of a State acting under its authority. Men who 'go in disguise upon the public highway, or upon the premises of another' are not likely to be acting in official capacities.' 341 U.S., at 76, 71 S.Ct., at 584. 'Nothing in (the) terms (of § 241) indicates that color of State law was to be relevant to prosecution under it.' Id., at 78, 71 S.Ct., at 585 (footnote omitted).
26
A like construction of § 1985(3) is reinforced when examination is broadened to take in its companion statutory provisions. There appear to be three possible forms for a state action limitation on § 1985(3)—that there must be action under color of state law, that there must be interference with or influence upon state authorities, or that there must be a private conspiracy so massive and effective that it supplants those authorities and thus satisfies the state action requirement.5 The Congress that passed the Civil Rights Act of 1871, 17 Stat. 13, § 2 of which is the parent of § 1985(3), dealt with each of these three situations in explicit terms in other parts of the same Act. An element of the cause of action established by the first section, now 42 U.S.C. § 1983, is that the deprivation complained of must have been inflicted under color of state law.6 To read any such requirement into § 1985(3) would thus deprive that section of all independent effect. As for interference with State officials, § 1985(3) itself contains another clause dealing explicitly with that situation.7 And § 3 of the 1871 Act provided for military action at the command of the President should massive private lawlessness render state authorities powerless to protect the federal rights of classes of citizens, such a situation being defined by the Act as constituting a state denial of equal protection. 17 Stat. 14. Given the existence of these three provisions, it is almost impossible to believe that Congress intended, in the dissimilar language of the portion of § 1985(3) now before us, simply to duplicate the coverage of one or more of them.
27
The final area of inquiry into the meaning of § 1985(2) lies in its legislative history. As originally introduced in the 42d Congress, the section was solely a criminal provision outlawing certain conspiratorial acts done with intent 'to do any act in violation of the rights, privileges, or immunities of another person * * *.' Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871). Introducing the bill, the House sponsor, Representative Shellabarger stressed that 'the United States always has assumed to enforce, as against the States, and also persons, every one of the provisions of the Constitution.' Id., at App. 69 (emphasis supplied). The enormous sweep of the original language led to pressures for amendment, in the course of which the present civil remedy was added. The explanations of the added language centered entirely on the animus or motivation that would be required, and there was no suggestion whatever that liability would not be imposed for purely private conspiracies. Representative Willard, draftsman of the limiting amendment, said that his version 'provid(ed) that the essence of the crime should consist in the intent to deprive a person of the equal protection of the laws and of equal privileges and immunities under the laws; in other words, that the Constitution secured, and was only intended to secure, equality of rights and immunities, and that we could only punish by United States laws a denial of that equality.' Id., at App. 188. Representative Shellabarger's explanation of the amendment was very similar: 'The object of the amendment is * * * to confine the authority of this law to the prevention of deprivations which shall attack the equality of rights of American citizens; that any violation of the right, the animus and effect of which is to strike down the citizen, to the end that he may not enjoy equality of rights as contrasted with his and other citizens' rights, shall be within the scope of the remedies of this section.' Id., at 478.8
28
Other supporters of the bill were even more explicit in their insistence upon coverage of private action. Shortly before the amendment was introduced, Representative Shanks urged, 'I do not want to see (this measure) so amended that there shall be taken out of it the frank assertion of the power of the national Government to protect life, liberty, and property, irrespective of the act of the State. Id., at App. 141. At about the same time, Representative Coburn asked: 'Shall we deal with individuals, or with the State as a State? If we can deal with individuals, that is a less radical course, and works less interference with local governments. * * * It would seem more accordant with reason that the easier, more direct, and more certain method of dealing with individual criminals was preferable, and that the more thorough method of superseding State authority should only be resorted to when the deprivation of rights and the condition of outlawry was so general as to prevail in all quarters in defiance of or by permission of the local government.' Id., at 459. After the amendment had been proposed in the House, Senator Pool insisted in support of the bill during Senate debate that 'Congress must deal with individuals, not States. It must punish the offender against the rights of the citizen * * *.' Id., at 608.
29
It is thus evident that all indicators—text, companion provisions, and legislative history—point unwaveringly to § 1985(3)'s coverage of private conspiracies. That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others. For, though the supporters of the legislation insisted on coverage of private conspiracies, they were equally emphatic that they did not believe, in the words of Representative Cook, 'that Congress has a right to punish an assault and battery when committed by two or more persons within a State.' Id., at 485. The constitutional shoals that would lie in the path of interpreting § 1985(3) as a general federal tort law can be avoided by giving full effect to the congressional purpose—by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment. See the remarks of Representatives Willard and Shellabarger, quoted supra, at 100. The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.9 The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.10
IV
30
We return to the petitioners' complaint to determine whether it states a cause of action under § 1985(3) as so construed. To come within the legislation a complaint must allege that the defendants did (1) 'conspire or go in disguise on the highway or on the premises of another' (2) 'for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.' It must then assert that one or more of the conspirators (3) did, or caused to be done, 'any act in furtherance of the object of (the) conspiracy,' whereby another was (4a) 'injured in his person or property' or (4b) 'deprived of having and exercising any right or privilege of a citizen of the United States.'
31
The complaint fully alleges, with particulars, that the respondents conspired to carry out the assault. It further asserts that '(t)heir purpose was to prevent (the) plaintiffs and other Negro-Americans, through * * * force, violence and intimidation, from seeking the equal protection of the laws and from enjoying the equal rights, privileges and immunities of citizens under the laws of the United States and the State of Mississippi,' including a long list of enumerated rights such as free speech, assembly, association, and movement. The complaint further alleges that the respondents were 'acting under a mistaken belief that R. G. Grady was a worker for Civil Rights for Negroes.' These allegations clearly support the requisite animus to deprive the petitioners of the equal enjoyment of legal rights because of their race. The claims of detention, threats, and battery amply satisfy the requirement of acts done in furtherance of the conspiracy. Finally, the petitioners—whether or not the nonparty Grady was the main or only target of the conspiracy—allege personal injury resulting from those acts. The complaint, then, states a cause of action under § 1985(3). Indeed, the conduct here alleged lies so close to the core of the coverage intended by Congress that it is hard to conceive of wholly private conduct that would come within the statute if this does not. We must, accordingly, consider whether Congress had constitutional power to enact a statute that imposes liability under federal law for the conduct alleged in this complaint.
V
32
The constitutionality of § 1985(3) might once have appeared to have been settled adversely by United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290, and Baldwin v. Franks, 120 U.S. 678, 7 S.Ct. 656, 32 L.Ed. 766, which held unconstitutional its criminal counterpart, then § 5519 of the Revised Statutes.11 The Court in those cases, however, followed a severability rule that required invalidation of an entire statute if any part of it was unconstitutionally overbroad, unless its different parts could be read as wholly independent provisions, E.g., Baldwin v. Franks, supra, at 685, 7 S.Ct., at 658. This Court has long since firmly rejected that rule in such cases as United States v. Raines, 362 U.S. 17, 20—24, 80 S.Ct. 519, 522—524, 4 L.Ed.2d 524. Consequently, we need not find the language of § 1985(3) now before us constitutional in all its possible applications in order to uphold its facial constitutionality and its application to the complaint in this case.
33
That § 1985(3) reaches private conspiracies to deprive others of legal rights can, of itself, cause no doubts of its constitutionality. It has long been settled that 18 U.S.C. § 241, a criminal statute of far broader phrasing (see n. 4, supra), reaches wholly private conspiracies and is constitutional. E.g., In re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080; Logan v. United States, 144 U.S. 263, 293—295, 12 S.Ct. 617, 626—627, 36 L.Ed. 429; United States v. Waddell, 112 U.S. 76, 77—81, 5 S.Ct. 35, 36—38, 28 L.Ed. 673; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274. See generally Twining v. New Jersey, 211 U.S. 78, 97—98, 29 S.Ct. 14, 18—20, 53 L.Ed. 97. Our inquiry, therefore, need go only to identifying a source of congressional power to reach the private conspiracy alleged by the complaint in this case.
A.
34
Even as it struck down Rev.Stat. § 5519 in United States v. Harris, the Court indicated that parts of its coverage would, if severable, be constitutional under the Thirteenth Amendment. 106 U.S., at 640—641, 1 S.Ct., at 610—611. And surely there has never been any doubt of the power of Congress to impose liability on private persons under § 2 of that amendment, 'for the amendment is not a mere prohibition of state laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.' Civil Rights Cases, 109 U.S. 3, 20, 3 S.Ct. 18, 28, 27 L.Ed. 835. See also id., at 23, 3 S.Ct., at 30; Clyatt v. United States, 197 U.S. 207, 216, 218, 25 S.Ct. 429, 430, 431, 49 L.Ed. 726; Jones v. Alfred H. Mayer Co., 392 U.S., at 437—440, 88 S.Ct., at 2202—2204, 20 L.Ed.2d 1189. Not only may Congress impose such liability, but the varieties of private conduct that it may make criminally punishable or civilly remediable extend far beyond the actual imposition of slavery or involuntary servitude. By the Thirteenth Amendment, we committed ourselves as a Nation to the proposition that the former slaves and their descendants should be forever free. To keep that promise, 'Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.' Jones v. Alfred H. Mayer Co., supra, at 440, 88 S.Ct., at 2203. We can only conclude that Congress was wholly within its powers under § 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men.
B
35
Our cases have firmly established that the right of interstate travel is constitutionally protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well as governmental interference. Shapiro v. Thompson, 394 U.S. 618, 629—631, 89 S.Ct. 1322, 1328—1330, 22 L.Ed.2d 600; id., at 642—644, 89 S.Ct., at 1335—1336 (concurring opinion); United States v. Guest, 383 U.S. 745, 757—760 and n. 17, 86 S.Ct. 1170, 1177 1180, 16 L.Ed.2d 239; Twining v. New Jersey, 211 U.S. 78, 97, 29 S.Ct. 14, 18, 53 L.Ed. 97; Slaughter-House Cases, 16 Wall. 36, 79 80, 21 L.Ed. 394; Crandall v. Nevada, 6 Wall. 35, 44, 48—49, 18 L.Ed. 744; Passenger Cases (Smith v. Turner), 7 How. 283, 492, 12 L.Ed. 702 (Taney, C.J., dissenting). The 'right to pass freely from state to state' has been explicitly recognized as 'among the rights and privileges of national citizenship.' Twining v. New Jersey, supra, 211 U.S., at 97, 29 S.Ct., at 19. That right, like other rights of national citizenship, is within the power of Congress to protect by appropriate legislation. E.g., United States v. Guest, supra, 383 U.S., at 759, 86 S.Ct., at 1178; United States v. Classic, 313 U.S. 299, 314—315, 61 S.Ct. 1031, 1037—1038, 85 L.Ed. 1368; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; Oregon v. Mitchell, 400 U.S. 112, 285 287, 91 S.Ct. 260, 345—346, 27 L.Ed.2d 272 (concurring and dissenting opinion).
36
The complaint in this case alleged that the petitioners 'were travelling upon the federal, state and local highways in and about' DeKalb, Kemper County, Mississippi. Kemper County is on the Mississippi-Alabama border. One of the results of the conspiracy, according to the complaint, was to prevent the petitioners and other Negroes from exercising their 'rights to travel the public highways without restraint in the same terms as white citizens in Kemper County, Mississippi.' Finally, the conspiracy was alleged to have been inspired by the respondents' erroneous belief that Grady, a Tennessean, was a worker for Negro civil rights. Under these allegations it is open to the petitioners to prove at trial that they had been engaging in interstate travel or intended to do so, that their federal right to travel interstate was one of the rights meant to be discriminatorily impaired by the conspiracy, that the conspirators intended to drive out-of-state civil rights workers from the State, or that they meant to deter the petitioners from associating with such persons. This and other evidence could make it clear that the petitioners had suffered from conduct that Congress may reach under its power to protect the right of interstate travel.
C
37
In identifying these two constitutional sources of congressional power, we do not imply the absence of any other. More specifically, the allegations of the complaint in this case have not required consideration of the scope of the power of Congress under § 5 of the Fourteenth Amendment.12 By the same token, since the allegations of the complaint bring this cause of action so close to the constitutionally authorized core of the statute, there has been no occasion here to trace out its constitutionally permissible periphery.
38
The judgment is reversed, and the case is remanded to the United States District Court for the Southern District of Mississippi for further proceedings consistent with this opinion.
39
It is so ordered.
40
Reversed and remanded.
41
Mr. Justice HARLAN, concurring.
42
I agree with the Court's opinion, except that I find it unnecessary to rely on the 'right of interstate travel' as a premise for justifying federal jurisdiction under § 1985(3). With that reservation, I join the opinion and judgment of the Court.
1
The statute was then 8 U.S.C. § 47(3) (1946 ed.).
2
'We do not say that no conspiracy by private individuals could be of such magnitude and effect as to work a deprivation of equal protection of the laws, or of equal privileges and immunities under laws. * * * But here nothing of that sort appears. We have a case of a lawless political brawl, precipitated by a handful of white citizens against other white citizens.' 341 U.S., at 662, 71 S.Ct., at 942.
3
'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'
4
'If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
'If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
'They shall be fined not more than $5,000 or imprisoned not more than ten years, or both.'
The penalty section was amended in 1968. See 18 U.S.C. § 241 (1964 ed., Supp. V).
5
This last was suggested in Collins v. Hardyman. See n. 2, supra.
6
'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.'
7
'If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another * * * for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws * * *.'
8
The conspiracy and disguise language of what finally became § 1985(3) appears to have been borrowed from the parent of 18 U.S.C. § 241. See Cong.Globe, 41st Cong., 2d Sess., 3611—3613 (1870).
9
We need not decide, given the facts of this case, whether a conspiracy motivated by invidiously discriminatory intent other than racial bias would be actionable under the portion of § 1985(3) before us. Cf. Cong.Globe, 42d Cong., 1st Sess., 567 (1871) (remarks of Sen Edmunds).
10
The motivation requirement introduced by the word 'equal' into the portion of § 1985(3) before us must not be confused with the test of 'specific intent to deprive a person of a federal right made definite by decision or other rule of law' articulated by the plurality opinion in Screws v. United States, 325 U.S. 91, 103, 65 S.Ct. 1031, 1036, 89 L.Ed. 1495, for prosecutions under 18 U.S.C. § 242. Section 1985(3), unlike § 242, contains no specific requirement of 'wilfulness.' Cf. Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492. The motivation aspect of § 1985(3) focuses not on scienter in relation to deprivation of rights but on invidiously discriminatory animus.
11
Rev.Stat. § 5519 was repealed in 1909. 35 Stat. 1154.
12
See Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1731, 16 L.Ed.2d 828; Oregon v. Mitchell, 400 U.S. 112, 135, 91 S.Ct. 260, 270 (opinion of Douglas, J.), 229, 91 S.Ct. 317 (opinion of Brennan, White, and Marshall, JJ.); United States v. Guest, 383 U.S. 745, 761, 86 S.Ct. 1170, 1180 (Clark, J., concurring), 774, 86 S.Ct. 1187 (Brennan, J., concurring and dissenting).
| 12
|
403 U.S. 15
91 S.Ct. 1780
29 L.Ed.2d 284
Paul Robert COHEN, Appellant,v.State of CALIFORNIA.
No. 299.
Argued Feb. 22, 1971.
Decided June 7, 1971.
Syllabus
Appellant was convicted of violating that part of Cal. Penal Code § 415 which prohibits 'maliciously and willfully disturb(ing) the peace or quiet of any neighborhood or person * * * by * * * offensive conduct,' for wearing a jacket bearing the words 'Fuck the Draft' in a corridor of the Los Angeles Courthouse. The Court of Appeal held that 'offensive conduct' means 'behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,' and affirmed the conviction. Held: Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense. Pp. 22—26.
1 Cal.App.3d 94, 81 Cal.Rptr. 503, reversed.
Melville B. Nimmer, Los Angeles, Cal., for appellant.
Michael T. Sauer, Los Angeles, Cal., for appellee.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance.
2
Appellant Paul Robert Cohen was convicted in the Los Angeles Municipal Court of violating that part of California Penal Code § 415 which prohibits 'maliciously and willfully disturb(ing) the peace or quiet of any neighborhood or person * * * by * * * offensive conduct * * *.'1 He was given 30 days' imprisonment. The facts upon which his conviction rests are detailed in the opinion of the Court of Appeal of California, Second Appellate District, as follows:
3
'On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words 'Fuck the Draft' which were plainly visible. There were women and children present in the corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.
4
'The defendant did not engage in, nor threaten to engage in, nor did anyone as the result of his conduct in fact commit or threaten to commit any act of violence. The defendant did not make any loud or unusual noise, nor was there any evidence that he uttered any sound prior to his arrest.' 1 Cal.App.3d 94, 97—98, 81 Cal.Rptr. 503, 505 (1969).
5
In affirming the conviction the Court of Appeal held that 'offensive conduct' means 'behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,' and that the State had proved this element because, on the facts of this case, '(i)t was certainly reasonably foreseeable that such conduct might cause others to rise up to commit a violent act against the person of the defendant or attempt to forceably remove his jacket.' 1 Cal.App.3d, at 99—100, 81 Cal.Rptr., at 506. The California Supreme Court declined review by a divided vote.2 We brought the case here, postponing the consideration of the question of our jurisdiction over this appeal to a hearing of the case on the merits. 399 U.S. 904, 90 S.Ct. 2211, 26 L.Ed.2d 558. We now reverse.
6
The question of our jurisdiction need not detain us long. Throughout the proceedings below, Cohen consistently claimed that, as construed to apply to the facts of this case, the statute infringed his rights to freedom of expression guaranteed by the First and Fourteenth Amendments of the Federal Constitution. That contention has been rejected by the highest California state court in which review could be had. Accordingly, we are fully satisfied that Cohen has properly invoked our jurisdiction by this appeal. 28 U.S.C. § 1257(2); Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239 (1921).
7
* In order to lay hands on the precise issue which this case involves, it is useful first to canvass various matters which this record does not present.
8
The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only 'conduct' which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon 'speech,' cf. Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), not upon any separately identifiable conduct which allegedly was intended by Cohen to be perceived by others as expressive of particular views but which, on its face, does not necessarily convey any message and hence arguably could be regulated without effectively repressing Cohen's ability to express himself. Cf. United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Further, the State certainly lacks power to punish Cohen for the underlying content of the message the inscription conveyed. At least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be punished for asserting the evident position on the inutility or immorality of the draft his jacket reflected. Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957).
9
Appellant's conviction, then, rests squarely upon his exercise of the 'freedom of speech' protected from arbitrary governmental interference by the Constitution and can be justified, if at all, only as a valid regulation of the manner in which he exercised that freedom, not as a permissible prohibition on the substantive message it conveys. This does not end the inquiry, of course, for the First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases or to use any form of address in any circumstances that he chooses. In this vein, too, however, we think it important to note that several issues typically associated with such problems are not presented here.
10
In the first place, Cohen was tried under a statute applicable throughout the entire State. 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. See Edwards v. South Carolina, 372 U.S. 229, 236—237, 83 S.Ct. 680, 683—684, 9 L.Ed.2d 697, and n. 11 (1963). Cf. Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). No fair reading of the phrase 'offensive conduct' can be said sufficiently to inform the ordinary person that distinctions between certain locations are thereby created.3
11
In the second place, as it comes to us, this case cannot be said to fall within those relatively few categories of instances where prior decisions have established the power of government to deal more comprehensively with certain forms of individual expression simply upon a showing that such a form was employed. This is not, for example, an obscenity case. Whatever else may be necessary to give rise to the States' broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen's crudely defaced jacket.
12
This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called 'fighting words,' those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not 'directed to the person of the hearer.' Cantwell v. Connecticut, 310 U.S. 296, 309, 60 S.Ct. 900, 906, 84 L.Ed. 1213 (1940). No individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult. Nor do we have here an instance of the exercise of the State's police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295 (1951); Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). There is, as noted above, no showing that anyone who saw Cohen was in fact violently aroused or that appellant intended such a result.
13
Finally, in arguments before this Court much has been made of the claim that Cohen's distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to appellant's crude form of protest. Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. See, e.g., Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue, e.g., Rowan v. United States Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970), we have at the same time consistently stressed that 'we are often 'captives' outside the sanctuary of the home and subject to objectionable speech.' Id., at 738, 90 S.Ct., at 1491. The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.
14
In this regard, persons confronted with Cohen's jacket were in a quite different posture than, say, those subjected to the raucous emissions of sound trucks blaring outside their residences. Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes. And, while it may be that one has a more substantial claim to a recognizable privacy interest when walking through a courthouse corridor than, for example, strolling through Central Park, surely it is nothing like the interest in being free from unwanted expression in the confines of one's own home. Cf. Keefe, supra. Given the subtlety and complexity of the factors involved, if Cohen's 'speech' was otherwise entitled to constitutional protection, we do not think the fact that some unwilling 'listeners' in a public building may have been briefly exposed to it can serve to justify this breach of the peace conviction where, as here, there was no evidence that persons powerless to avoid appellant's conduct did in fact object to it, and where that portion of the statute upon which Cohen's conviction rests evinces no concern, either on its face or as construed by the California courts, with the special plight of the captive auditor, but, instead, indiscriminately sweeps within its prohibitions all 'offensive conduct' that disturbs 'any neighborhood or person.' Cf. Edwards v. South Carolina, supra.4
II
15
Against this background, the issue flushed by this case stands out in bold relief. It is whether California can excise, as 'offensive conduct,' one particular scurrilous epithet from the public discourse, either upon the theory of the court below that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary.
16
The rationale of the California court is plainly untenable. At most it reflects an 'undifferentiated fear or apprehension of disturbance (which) is not enough to overcome the right to freedom of expression.' Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969). We have been shown no evidence that substantial numbers of citizens are standing ready to strike out physically at whoever may assault their sensibilities with execrations like that uttered by Cohen. There may be some persons about with such lawless and violent proclivities, but that is an insufficient base upon which to erect, consistently with constitutional values, a governmental power to force persons who wish to ventilate their dissident views into avoiding particular forms of expression. The argument amounts to little more than the self-defeating proposition that to avoid physical censorship of one who has not sought to provoke such a response by a hypothetical coterie of the violent and lawless, the States may more appropriately effectuate that censorship themselves. Cf. Ashton v. Kentucky, 384 U.S. 195, 200, 86 S.Ct. 1407, 1410, 16 L.Ed.2d 469 (1966); Cox v. Louisiana, 379 U.S. 536, 550—551, 85 S.Ct. 453, 462—463, 13 L.Ed.2d 471 (1965).
17
Admittedly, it is not so obvious that the First and Fourteenth Amendments must be taken to disable the States from punishing public utterance of this unseemly expletive in order to maintain what they regard as a suitable level of discourse within the body politic.5 We think, however, that examination and reflection will reveal the shortcomings of a contrary viewpoint.
18
At the outset, we cannot overemphasize that, in our judgment, most situations where the State has a justifiable interest in regulating speech will fall within one or more of the various established exceptions, discussed above but not applicable here, to the usual rule that governmental bodies may not prescribe the form or content of individual expression. Equally important to our conclusion is the constitutional backdrop against which our decision must be made. The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. See Whitney v. California, 274 U.S. 357, 375—377, 47 S.Ct. 641, 648 649, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring).
19
To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. That is why '(w)holly neutral futilities * * * come under the protection of free speech as fully as do Keats' poems or Donne's sermons,' Winters v. New York, 333 U.S. 507, 528, 68 S.Ct. 665, 676, 92 L.Ed. 840 (1948) (Frankfurter, J., dissenting), and why 'so long as the means are peaceful, the communication need not meet standards of acceptability,' Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971).
20
Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.
21
Additionally, we cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech has little or no regard for that emotive function which practically speaking, may often be the more important element of the overall message sought to be communicated. Indeed, as Mr. Justice Frankfurter has said, '(o)ne of the prerogatives of American citizenship is the right to criticize public men and measures—and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.' Baumgartner v. United States, 322 U.S. 665, 673—674, 64 S.Ct. 1240, 1245, 88 L.Ed. 1525 (1944).
22
Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results.
23
It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be reversed.
24
Reversed.
25
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE and Mr. Justice BLACK join.
I dissent, and I do so for two reasons:
26
1. Cohen's absurd and immature antic, in my view, was mainly conduct and little speech. See Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 690, 93 L.Ed. 834 (1949). The California Court of Appeal appears so to have described it, 1 Cal.App.3d 94, 100, 81 Cal.Rptr. 503, 507, and I cannot characterize it otherwise. Further, the case appears to me to be well within the sphere of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), where Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench. As a consequence, this Court's agonizing over First Amendment values seem misplaced and unnecessary.
27
2. I am not at all certain that the California Court of Appeal's construction of § 415 is now the authoritative California construction. The Court of Appeal filed its opinion on October 22, 1969. The Supreme Court of California declined review by a four-to-three vote on December 17. See 1 Cal.App.3d, at 104, 81 Cal.Rptr., at 503. A month later, on January 27, 1970, the State Supreme Court in another case construed § 415, evidently for the first time. In re Bushman, 1 Cal.3d 767, 83 Cal.Rptr. 375, 463 P.2d 727. Chief Justice Traynor, who was among the dissenters to his court's refusal to take Cohen's case, wrote the majority opinion. He held that § 415 'is not unconstitutionally vague and overbroad' and further said:
28
'(T)hat part of Penal Code section 415 in question here makes punishable only wilful and malicious conduct that is violent and endangers public safety and order or that creates a clear and present danger that others will engage in violence of that nature.
29
'* * * (It) does not make criminal any nonviolent act unless the act incites or threatens to incite others to violence * * *.' 1 Cal.3d, at 773—774, 83 Cal.Rptr., at 379, 463 P.2d, at 731.
30
Cohen was cited in Bushman, 1 Cal.3d, at 773, 83 Cal.Rptr., at 378, 463 P.2d, at 730, but I am not convinced that its description there and Cohen itself are completely consistent with the 'clear and present danger' standard enunciated in Bushman. Inasmuch as this Court does not dismiss this case, it ought to be remanded to the California Court of Appeal for reconsideration in the light of the subsequently rendered decision by the State's highest tribunal in Bushman.
31
Mr. Justice WHITE concurs in Paragraph 2 of Mr. Justice BLACKMUN'S dissenting opinion.
1
The statute provides in full:
'Every person who maliciously and willfully disturbs the peace or quiet of any neighborhood or person, by loud or unusual noise, or by tumultuous or offensive conduct, or threatening, traducing, quarreling, challenging to fight, or fighting, or who, on the public streets of any unincorporated town, or upon the public highways in such unincorporated town, run any horse race, either for a wager of for amusement, or fire any gun or pistol in such unincorporated town, or use any vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner, is guilty of a misdemeanor, and upon conviction by any Court of competent jurisdiction shall be punished by fine not exceeding two hundred dollars, or by imprisonment in the County Jail for not more than ninety days, or by both fine and imprisonment, or either, at the discretion of the Court.'
2
The suggestion has been made that, in light of the supervening opinion of the California Supreme Court in In re Bushman, 1 Cal.3d 767, 83 Cal.Rptr. 375, 463 P.2d 727 (1970), it is 'not at all certain that the California Court of Appeal's construction of § 415 is now the authoritative California construction.' Post, at 27 (BLACKMUN, J., dissenting). In the course of the Bushman opinion, Chief Justice Traynor stated:
'(One may) * * * be guilty of disturbing the peace through 'offensive' conduct (within the meaning of § 415) if by his actions he wilfully and maliciously incites others to violence or engages in conduct likely to incite others to violence. (People v. Cohen (1969) 1 Cal.App.3d 94, 101, 81 Cal.Rptr. 503.)' 1 Cal.3d, at 773, 463 P.2d, at 730.
We perceive no difference of substance between the Bushman construction and that of the Court of Appeal, particularly in light of the Bushman court's approving citation of Cohen.
3
It is illuminating to note what transpired when Cohen entered a courtroom in the building. He removed his jacket and stood with it folder over his arm. Meanwhile, a policeman sent the presiding judge a note suggesting that Cohen be held in contempt of court. The judge declined to do so and Cohen was arrested by the officer only after he emerged from the courtroom. App. 18—19.
4
In fact, other portions of the same statute do make some such distinctions. For example, the statute also prohibits disturbing 'the peace or quiet * * * by loud or unusual noise' and using 'vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner.' See n. 1, supra. This secondquoted provision in particular serves to put the actor on much fairer notice as to what is prohibited. It also buttresses our view that the 'offensive conduct' portion, as construed and applied in this case, cannot legitimately be justified in this Court as designed or intended to make fine distinctions between differently situated recipients.
5
The amicus urges, with some force, that this issue is not properly before us since the statute, as construed, punishes only conduct that might cause others to react violently. However, because the opinion below appears to erect a virtually irrebuttable presumption that use of this word will produce such results, the statute as thus construed appears to impose, in effect, a flat ban on the public utterance of this word. With the case in this posture, it does not seem inappropriate to inquire whether any other rationale might properly support this result. While we think it clear, for the reasons expressed above, that no statute which merely proscribes 'offensive conduct' and has been construed as broadly as this one was below can subsequently be justified in this Court as discriminating between conduct that occurs in different places or that offends only certain persons, it is not so unreasonable to seek to justify its full broad sweep on an alternate rationale such as this. Because it is not so patently clear that acceptance of the justification presently under consideration would render the statute overbroad or unconstitutionally vague, and because the answer to appellee's argument seems quite clear, we do not pass on the contention that this claim is not presented on this record.
| 23
|
403 U.S. 108
91 S.Ct. 1803
29 L.Ed.2d 352
Herbert L. ELY, Individually and as Chairman of the Democratic Party of Arizona, Appellant,v.Gary Peter KLAHR et al.
No. 548.
Argued March 23, 1971.
Decided June 7, 1971.
Philip J. Shea, Phoenix, Ariz., for appellant.
John M. McGowan, II, Phoenix, Ariz., for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
This appeal is the latest step in the long and fitful attempt to devise a constitutionally valid reapportionment scheme for the State of Arizona. For the reasons given, we affirm the judgment of the District Court.
2
In April 1964, shortly before this Court's decision in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and in its companion cases, suit was filed in the District Court for the District of Arizona attacking the then-existing state districting laws as unconstitutional.1 Following those decisions, the three-judge District Court ordered all proceedings stayed 'until the expiration of a period of 30 days next following adjournment of the next session' of the Arizona Legislature. (App. 2—3, unreported.) Nearly a year later, on May 18, 1965, after the legislature had failed to act, the court again deferred trial pending a special legislative session called by the Governor to deal with the necessity of reapportionment. The special session enacted Senate Bill 11, which among other things provided one senator for a county of 7,700 and another for a county of 55,000. The session did not undertake to reapportion the House. Trial was had in November 1965 and on February 2, 1966, the court enjoined enforcement of Senate Bill 11, which, it held, 'bears evidence of having been thrown together as a result of considerations wholly apart from those laid down as compulsory by the decisions of the Supreme Court.' Klahr v. Goddard, 250 F.Supp. 537, 541 (D.C.Ariz.1966). The plan, said the court, was 'shot through with invidious discrimination.' Id., at 546. The court also held that the existing House plan produced disparties of nearly four to one, which was clearly impermissible under our decisions.
3
Noting that the legislature 'has had ample opportunity' to produce a valid reapportionment plan, the court formulated its own plan as a 'temporary and provisional reapportionment,' designed to govern the impending preparation for the 1966 elections. The plan was to be in effect 'for the 1966 primary and general elections and for such further elections as may follow until such time as the Legislature itself may adopt different and valid plans for districting and reapportionment.'2 Id., at 543. It retained jurisdiction, as it has done since.
4
Some 16 months later, in June 1967, the Arizona Legislature enacted 'Chapter 1, 28th Legislature,' which again attempted reapportionment of the State. Within the month, suit was filed charging that this Act also was unconstitutional, but the court deferred action pending the outcome of a referendum3 scheduled with the November 1968 election for the legislature and Congress. It ordered those elections to be held in accordance with its own 1966 plan, as supplemented. Klahr v. Williams, 289 F.Supp. 829 (D.C.Ariz.1967). The legislative plan was approved by the voters in the referendum and signed into law by the Governor on January 17, 1969. A hearing on the plan was commenced the same day. The court concluded on July 22, 1969, that the plan, which set up 'election districts' based on population and 'legislative' subdistricts based on voter registration, would allow deviations among the legislative subdistricts of up to 40% from ideal until 1971, and up to 16% thereafter. The court properly concluded that this plan was invalid under Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969), and Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969), since the legislature had operated on the notion that a 16% deviation was de minimis and consequently made no effort to achieve greater equality. The court ordered its 1966 plan continued once again 'until the Legislature shall have adopted different, valid and effective plans for redistricting and reapportionment * * *.' (App. 85, unreported.) It refused to order the 1970 elections to be held at large, since there was 'ample time' for the legislature 'to meet its obligation' before the machinery for conducting the 1970 elections would be engaged.
5
The legislature attempted a third time to enact a valid plan. It passed 'Chapter 1, House Bill No. 1, 29th Legislature,' which was signed into law by the Governor on January 22, 1970, and which is the plan involved in the decision from which this appeal is taken. Appellant challenged the bill, alleging that it 'substantially disenfranchises, unreasonably and unnecessarily, a large number of the citizens of the state,' App. 106, and 'creates legislative districts that are grossly unequal.' App. 108. Appellant at that time submitted his own plan for the court's consideration. Appellant's primary dispute with the new plan was that it substantially misconceived the current population distribution in Arizona. The court agreed that appellant's plan, which utilized 1968 projections of 1960 and 1965 Arizona censuses, could 'very likely (result in) a valid reapportionment plan' but it declined to implement the plan, since it was based on census tracts, rather than the existing precinct boundaries, and 'the necessary reconstruction of the election precincts could not be accomplished in time' to serve the 1970 election, whose preliminary preparations were to begin in a few weeks. Klahr v. Williams, 313 F.Supp. 148, 150 (Ariz.1970). At the same time, the court observed that its 1966 plan had fallen behind contemporary constitutional requirements, due to more recent voter registration data (which increased the deviation between high and low districts to 47.09%) and the intervening decisions of this Court in Kirkpatrick and Wells, supra, and Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966).
6
Turning to the legislature's plan, the court found it wanting in several respects. First, though the result indicated population deviation between high and low districts of only 1.8%, the population formula used4 did not 'truly represent the population within (the) precincts in either 1960 or 1968,' and thus 'the figures produced * * * are not truly population figures.' 313 F.Supp., at 152. Second, the computer that devised the plan had been programmed to assure that the plan would not require any incumbent legislator to face any other incumbent for re-election. Third, the programming gave priority to one-party districts over districts drawn without regard to party strength. The court held that 'the incumbency factor has no place in any reapportionment or redistricting'5 and found 'inapposite' the 'consideration of party strength as a factor * * *.' Ibid.
7
The court was thus faced with a situation where both its 1966 plan and the legislature's latest attempt fell short of the constitutional standard. At that time, however, the 1970 elections were 'close at hand.' The court concluded that another legislative effort was 'out of the question' due to the time and felt that it could not itself devise a new plan without delaying primary elections, 'a course which would involve serious risk of confusion and chaos.' Ibid. It considered at-large elections, but the prospect of electing 90 legislators at large was deemed so repugnant as to be justified only if the legislature's actions had been 'deliberate and inexcusable'; the court instead believed that the large population increase in Arizona since the last reliable census in 1960 was more to blame. Concluding that the 1970 elections would be the last to be held before the 1970 census data became available for new plans, the court chose what it considered the lesser of two evils and ordered the elections to be conducted under the legislature's plan. In its order to this effect, the court noted that it 'assumes that the Arizona Legislature will by November 1, 1971, enact a valid plan of reapportionment,' but that '(u)pon failure of the Legislature so to do, any party to this action may apply to the court for appropriate relief.' Id., at 154.
8
The state officials did not seek review of the District Court's judgment declaring Chapter 1 unconstitutional. Appellant, however, appealed to this Court. His notice of appeal was filed on June 18, 1970, his jurisdictional statement on August 17, 1970. The latter presented the single question whether it was error for the United States District Court to refuse to enjoin the enforcement of the Arizona Legislature's most recent effort to reapportion the State. Appellees' motion to dismiss or affirm was filed on November 24. We noted probable jurisdiction on December 21, 1970, Ely v. Klahr, 400 U.S. 963, 91 S.Ct. 364, 27 L.Ed.2d 382.
9
Meanwhile, the 1970 elections were held in accordance with the District Court's decree. Appellees suggest that the issue presented is moot and appellant concedes 'the 1970 general election has already been held so that that aspect of the wrong cannot be remedied.' Brief 8. But appellant now argues that however that may be, the District Court should now proceed to adopt a plan of reapportionment which would be displaced only upon the adoption of a valid plan by the legislature. Appellant doubts that postponing judicial action until after November 1 will give the District Court sufficient time, prior to June 1972, when the election process must begin in Arizona, to consider the legislative plan and to prepare its own plan if the legislative effort does not comply with the Constitution. The feared result is that another election under an unconstitutional plan would be held in Arizona.
10
Reapportionment history in the State lends some substance to these fears, but as we have often noted, districting and apportionment are legislative tasks in the first instance,6 and the court did not err in giving the legislature a reasonable time to act based on the 1970 census figures which the court thought would be available in the summer of 1971. We agree with appellant that the District Court should make very sure that the 1972 elections are held under a constitutionally adequate apportionment plan. But the District Court knows better than we whether the November 1 deadline will afford it ample opportunity to assess the legality of a new apportionment statute if one is forthcoming and to prepare its own plan by June 1, 1972, if the official version proves insufficient. The 1970 census figures, if not now available, will be forthcoming soon; and appellant, if he is so inclined, can begin to assemble the necessary information and witnesses and himself prepare and have ready for submission what he deems to be an adequate apportionment plan. Surely, had a satisfactory substitute for Chapter 1, held unconstitutional by the District Court, been prepared and ready the court would have ordered the 1970 elections held under that plan rather than the invalid legislative scheme. And surely if appellant has ready for court use on November 1, 1971, a suitable alternative for an unacceptable legislative effort, or at least makes sure that the essential information is on hand, there is no justifiable ground for thinking the District Court could not, prior to June 1, 1972, complete its hearings and consideration of a new apportionment statute and, if that is rejected, adopt a plan of its own for use in the 1972 elections. Nor do we read the District Court decree as forbidding appellant from petitioning for reopening of the case prior to November 1, 1971, and presenting to the District Court the problem which it has now raised here but which we prefer at this juncture to leave in the hands of the District Court.7 The judgment is affirmed.
11
It is so ordered.
12
Affirmed.
13
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK joins, concurring.
14
The complaint in this case was filed on April 27, 1964. The District Court stayed all proceedings on June 25, 1964, until after the next regular session of the legislature and, when nothing was achieved, stayed them again until after a special session. A reapportionment plan produced by that legislature was held unconstitutional. 250 F.Supp. 537.
15
Thereupon the District Court drew a 'temporary and provisional' plan for the general elections of 1966 and 1968. See Klahr v. Goddard, 254 F.Supp. 997, 289 F.Supp. 827; Klahr v. Williams, 303 F.Supp. 224. In 1967 the legislature produced another plan which was approved by the voters and became effective January 17, 1969. This plan was also declared unconstitutional by the District Court on July 22, 1969. The legislature then adopted a new plan effective January 22, 1970. The District Court allowed this plan to be used for the 1970 general election, although it considered the plan to be unconstitutional. The District Court in its decree provided:
16
'The court, having been advised that detailed population figures for the State of Arizona will be available from the official 1970 census by the summer of 1971, assumes that the Arizona Legislature will by November 1, 1971, enact a valid plan of reapportionment for both houses of the Arizona Legislature and a valid plan of redistricting the congressional districts of Arizona. Upon failure of the Legislature so to do, any party to this action may apply to the court for appropriate relief.'
17
The District Court also retained jurisdiction of the cause. 313 F.Supp. 148.
18
Since Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, Arizona has not had a constitutionally valid apportionment plan. Members of the Arizona Legislature who were elected in the 1970 election were elected under a plan the District Court held unconstitutional. Under that plan a computer was instructed to redistrict the State and to accomplish, in order, the following objectives: (1) to make the districts as equal in population as possible; (2) to circumscribe the districts in such a way that each included one incumbent senator and two incumbent representatives; (3) to make the districts compact; and (4) to make districts politically homogeneous.
19
Even assuming the legislative districts were of equal population the plan would have several practical deficiencies as far as minority representation goes. The 1970 plan insured that no incumbent would be running against another incumbent, as often may happen under a reapportionment plan. Thus the opportunity for preserving the status quo was assisted.
20
An effort to make each district politically homogeneous compounded this problem. The record provides a new definition of gerrymandering. A gerrymandered district in Arizona is not one where a 'natural' majority finds its power erased by either moving lines to increase the numbers of the opposition in the district or by moving the lines so that a majority is dispersed. In Arizona a gerrymandered district came to be one that is overwhelmingly either Republican or Democratic. Thus when the second and fourth factors are combined an incumbent had not only the natural benefits of incumbency, but also the benefits (where possible) of a one-party district, his own fiefdom.
21
The record reveals that the 1970 plan heavily favored incumbents even if we assumed equal population districts. Such an assumption, of course, is contrary to the facts; deviations in Arizona ranged from about 24% above the median to about 52% below the median.
22
The basic unit for a district was the local political precinct. Unfortunately, there were no population figures for the basic unit, thus making it difficult to build the districts. Such figures were created by programming the computer to assume that a precinct population was that part of the 1960 county population which the number of registered voters in the precinct in 1968 bore to the number of registered voters in the county in 1968.
23
If all segments of society were equally likely to register to vote, then the Arizona method of computing population would be unobjectionable. But all members of a community are not equally likely to register. For example, only two counties out of eight with Spanish surname populations in excess of 15% showed a voter registration equal to the statewide average.1 Not only are the poor, the blacks, the Chicanos, and the Indians less likely to register in the first place, they are also likely to have a higher rate of illiteracy among their members. Arizona law at the time of the decision below required a literacy test for voter registration. Ariz.Rev.Stat.Ann. §§ 16—101(a)(4), 16—101(A)(5). Naturally this compounded the problem of underregistration of minority groups.2 While the present record lacks some basic statistics, we do know that in 1965 the Bureau of the Census determined that less than 50% of the residents of voting age were registered or voted in the 1964 presidential election in Apache County, Navajo County, and Coconino County. 30 Fed.Reg. 9897, 14505. Under § 4(a) of the Voting Rights Act of 1965, 79 Stat. 438, the application of the literacy tests was suspended by the publication of the statistics in the Federal Register, but the suspension was lifted a year later on the showing that the literacy tests had not been used in a discriminatory manner. Apache County v. United States, D.C., 256 F.Supp. 903. As of last fall Yuma County was subject to the literacy test ban of the Voting Rights Act of 1965. See Oregon v. Mitchell, 400 U.S. 112, 131 n. 12, 91 S.Ct. 260.
24
The 1970 plan adversely affected minorities. Because of the registration statistics used, one district in the Phoenix ghetto had approximately 70,000 residents while an affluent all-white district in another area of Phoenix had only 27,000 residents. The Indian reservation area in northeastern Arizona fared little better. While it had sufficient numbers of Indians to justify a separate district which could undoubtedly elect Indian representatives in the state legislature, the Indians were done in. At the time of this suit there were no Indians elected to either the State House or Senate. But just to the south of the area two state senators lived 10 miles apart. Hence, the incumbency rule was invoked to split the Indian area so as to accommodate the two white senators.
25
The Arizona Legislature has yet to develop a reapportionment plan which can pass constitutional muster. The incumbents who now have the opportunity to draft the plan come from districts which are malapportioned and overrepresent the white vote. A valid apportionment plan will seemingly mean the defeat of several incumbents. The new efforts to gerrymander the State for the members of the current legislature will doubtless be prodigious. Members of the 1970 legislature had the twin advantages of running as single incumbents and in politically homogeneous districts. Members of minority groups had the disadvantage of underrepresentation. That invidious discrimination still exists.
26
On oral argument it was said that there is no point in initiating the design of a reapportionment plan now because the 1970 census figures are not available. That argument is difficult to comprehend, for it appears3 that in March 1971 New Jersey completed a comprehensive reapportionment plan based on the 1970 census. The District Court has shown great patience and has been persevering. It probably is the first to realize that the Gordian knot must be cut if there is to be a plan that satisfies constitutional requirements.
27
It has indicated it will wait until November 1, 1971, before it initiates a constitutional plan. The hearings on such a plan will doubtless be long drawn out and extensive. The prize is great, for if the present incumbents can prolong matters, the 1972 election may come and go with the existing invalid 1970 plan in effect. It is not difficult to imagine how easy that strategy might be. The 1972 primaries in Arizona are in September.4
28
Primaries apart, there is always the problem of review by this Court. We are plagued with election cases coming here on the eve of elections, with the remaining time so short we do not have the days needed for oral argument and for reflection on the serious problems that are usually presented. If an election case is filed in our summer recess, we will not consider it until the first week in October; and our effort to note the appeal, hear the case, and decide it before November without disrupting the state election machinery is virtually impossible. The time needed is lacking.5
29
If a case is to be heard and decided on these important issues it must be here by February so that we can work it into our spring calendar of argued cases and decide it before July. If the District Court waits until November to hold hearings and put a reapportionment plan in operation, it is unlikely that any such schedule can be met.
30
It is, therefore, essential that the judicial machinery be put into motion soon, so that a resolution of a matter that has defied solution for seven years be no longer delayed. I write these words not in criticism of the District Court but in support of its steadfast efforts to bring this stubborn litigation to an early end.
31
Mr. Justice HARLAN concurs in the result upon the premises set forth in his separate opinions in Whitcomb v. Chavis, 403 U.S. 124, 165, 91 S.Ct. 1858, 1881, 29 L.Ed.2d 363; Oregon v. Mitchell, 400 U.S. 112, 152, 91 S.Ct. 260, 279, 27 L.Ed.2d 272 (1970); and Reynolds v. Sims, 377 U.S. 533, 589, 84 S.Ct. 1362, 1395 (1964).
1
Throughout this litigation, congressional districting has been at issue as well and has suffered the same fate as reapportionment of the legislature. However, appeal has been taken here only with respect to the lower court's decree concerning legislative reapportionment.
2
The court issued two supplemental decrees in 1966 which modified and clarified the original order. Klahr v. Goddard, 254 F.Supp. 997, 289 F.Supp. 827.
3
Apparently under Arizona law, a referendum is required before a bill can become law where, as here, sufficient signatures against the bill are filed with the Secretary of State. See Klahr v. Williams, 289 F.Supp. 829 (Ariz.1967).
4
'The population factor in each of the election precincts comprising part of a legislative district was obtained by instructing the computer to take the 1968 voter registration for the precinct and divide it by the 1968 voter registration for the county in which the precinct was located, thereby obtaining the percentage of registered voters of the county residing within the precinct. The computer was then directed to multiply that percentage figure by the 1960 census for the county in which the precinct was located thereby obtaining the population factor for the precinct.' 313 F.Supp., at 151—152.
5
Though we noted in Burns v. Richardson, 384 U.S. 73, 89 n. 16, 86 S.Ct. 1286, 1295, that '(t)he fact that district boundaries may have been drawn in a way that minimizes the number of contests between present incumbents does not in and of itself establish invidiousness,' it is sufficient to note here that the District Court did not base its decision solely on this factor.
6
E.g., Reynolds v. Sims, 377 U.S. 533, 586, 84 S.Ct. 1362, 1394, 12 L.Ed.2d 506 (1964):
'(L)egislative reapportionment is primarily a matter for legislative consideration and determination, and * * * judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.'
7
Appellant has contended here that the use of voter registration figures, rather than actual population, to determine district size operates to the detriment of the poor, blacks, Mexican-Americans, and American Indians. In light of our disposition of this case, we need only advert to our admonition in Burns v. Richardson, supra, that use of voter registration as a basis may 'perpetuate under-representation of groups constitutionally entitled to participate in the electoral process,' 384 U.S., at 92, 86 S.Ct. at 1297, and is allowable only if it produces 'a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population basis.' Id., at 93, 86 S.Ct. at 1297. We presume, of course, that any plan submitted, and certainly any plan approved by the District Court, will be faithful to this requirement.
1
Hearings on S. 818, S. 2456, S. 2507, and Title IV of S. 2029 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 91st Cong., 1st and 2d Sess., 406 (1969—1970).
2
Because of the Voting Rights Act Amendments of 1970, 84 Stat. 314, literacy tests will not be a factor in future elections. Section 201, 84 Stat. 315, bars a State from denying the right to vote in any federal, state, or local election because of 'any test or device' which is defined, inter alia, to include literacy. This part of the Act was upheld in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260.
3
N. Y. Times, March 24, 1971, p. 47.
4
The primary election in Arizona in 1972 will be held on Sept. 13. See Ariz.Rev.Stat.Ann. § 16—702.
5
Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24, was an exceptional case. There Mr. Justice Stewart acting as Circuit Justice and in consultation with available members of this Court granted injunctive relief ordering the election ballots printed in such a way as to include the American Independent Party, the losing party in the District Court. This was to insure that, if it prevailed here, relief would be available. 89 S.Ct. 1, 21 L.Ed.2d 69. An expedited briefing schedule was authorized and we heard oral argument as soon as the Term commenced. Eight days later our opinion was handed down modifying the judgment of the District Court. Had not Mr. Justice Stewart granted the injunction in September the appellants' victory would have been a hollow one.
A challenge to Colorado's durational residency requirement prior to the 1968 election did not fare as well. The District Court upheld the requirement 292 F.Supp. 610, and we heard oral argument after the election was over. The case was dismissed as moot. Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214.
Durational residency requirements have come before the Court several times this Term. In Hayes v. Lieutenant Governor of Hawaii, there was a challenge to the Hawaii durational residency requirement for candidates. The Hawaii Supreme Court upheld the law in late August, Hayes v. Gill, 473 P.2d 872. An application for an injunction was denied. When the appeal finally came up for consideration on the merits, again after the election, it was dismissed as moot, 401 U.S. 968, 91 S.Ct. 1200, 28 L.Ed.2d 319. In Sirak v. Brown a state durational residency requirement for voters was upheld and, when this Court denied an injunction, 400 U.S. 809, 91 S.Ct. 30, 27 L.Ed.2d 39, the plaintiff chose not to docket his appeal, probably on the basis of Hall v. Beals, supra. A similar issue was present in Fitzpatrick v. Board of Election Commissioners of City of Chicago, where we denied a motion to expedite the appeal, 401 U.S. 905, 91 S.Ct. 882, 27 L.Ed.2d 803. Had all the lower courts followed Drueding v. Devlin, 234 F.Supp. 721 (D.C.Md.1964), aff'd, 380 U.S. 125, 85 S.Ct. 807, 13 L.Ed.2d 792, then mootness might have prevented any plenary review of the issue. But several district courts have con-
cluded that subsequent decisions have undermined Drueding and thus have invalidated durational residency requirements. This avoids the mootness issue and we have noted probable jurisdiction in one such case, Ellington v. Blumstein, 401 U.S. 934, 91 S.Ct. 920, 28 L.Ed.2d 213.
In Beller v. Kirk there was a challenge to the Florida requirement demanding an independent candidate obtain 5% of the registered voters to sign a petition so that he could get on the ballot. Injunctive relief was denied by individual Justices early in October, but the case has subsequently been docketed sub nom. Beller v. Askew, No. 1360. We have heard oral argument on the same issue in Jenness v. Fortson, No. 5714.
The Ohio laws are involved in several cases pending this Term. In one, the District Court handed down its decision late in July 1970. By that decision, 318 F.Supp. 1262, several sections of the Ohio laws were invalidated and we noted probable jurisdiction. Gilligan v. Sweetenham, 401 U.S. 991, 91 S.Ct. 1223, 28 L.Ed.2d 529. A loyalty oath was upheld and we noted probable jurisdiction in that case. Socialist Labor Party v. Gilligan, 401 U.S. 991, 91 S.Ct. 1223, 28 L.Ed.2d 529. The court also upheld a provision requiring independent candidates to file at the same time as major party candidates. Sweetenham v. Gilligan, No. 790. A similar issue is also presented in Pratt v. Begley, No. 1044, where the District Court for the Eastern District of Kentucky made its ruling in early October.
The then-forthcoming Chicago election in April 1971 also presented cases where one of the parties needed immediate action. In Jackson v. Ogilvie, the issue was the requirement that an independent obtain 5% of the registered voters on a nominating petition. We denied a stay on February 22, 1971, 401 U.S. 904, 91 S.Ct. 642, 27 L.Ed.2d 803, and there was no way the case could be heard prior to the election.
Through all these cases Williams v. Rhodes, supra, stands out as exceptional, because both the necessary preargument injunctive relief and expedited oral argument were obtained.
| 12
|
403 U.S. 124
91 S.Ct. 1858
29 L.Ed.2d 363
Edgar D. WHITCOMB, Governor of the State of Indiana, Appellant,v.Patrick CHAVIS et al.
No. 92.
Argued Dec. 8, 1970.
Decided June 7, 1971.
Syllabus
This suit was brought by residents of Marion and Lake Counties, Indiana, challenging state statutes establishing Marion County as a multi-member district for the election of state senators and representatives. It was alleged, first, that the laws invidiously diluted the votes of Negroes and poor persons living in the 'ghetto area' of Marion County, and second, that voters in multimember districts were overrepresented since the true test of voting power is the ability to cast a tie-breaking vote, and the voters in multi-member districts had a greater theoretical opportunity to cast such votes than voters in singlemember districts. The tendency of multi-member district legislators to vote as a bloc was alleged to compound this discrimination. The three-judge court, though not ruling squarely on the second claim, determined that a racial minority group with specific legislative interests inhabited a ghetto area in Indianapolis, in Marion County; that the statutes operated to minimize and cancel out the voting strength of this minority group; and that redistricting Marion County alone would leave impermissible variations between Marion districts and others in the State, thus requiring statewide redistricting, which could not await 1970 census figures. The court held the statutes unconstitutional, and gave the State until October 1, 1969, to enact reapportionment legislation. No such legislation ensued, and the court drafted a plan using single-member districts throughout the State. The 1970 elections were ordered to be held in accordance with the new plan. This Court granted a stay of judgment pending final action on the appeal, thus permitting the 1970 elections to be held under the condemned statutes. Under those statutes, based on the 1960 census, there was a maximum variance in population of senate districts of 28.20%, with a ratio between the largest and smallest districts of 1.327 to 1, and a maximum variance in house districts of 24.78%, with a ratio of 1.279 to 1. Held:
The judgment is reversed and the case remanded. 305 F.Supp. 1364, reversed and remanded.
Mr. Justice WHITE delivered the opinion of the Court with respect to Parts I—VI, finding that:
1
1. Although, as the Court was advised on June 1, 1971, the Indiana legislature enacted new apportionment legislation providing for state-wide single-member house and senate districts, the case is not moot. Pp. 140—141.
2
2. The validity of multi-member districts is justiciable, but a challenger has the burden of proving that such districts unconstitutionally operate to dilute or cancel the voting strength of racial or political groups. Pp. 141—144.
3
3. The actual, as distinguished from theoretical, impact of multi-member districts on individual voting power has not been sufficiently demonstrated on this record to warrant departure from prior cases involving multi-member districts, and neither the findings below nor the record sustains the view that multi-member districts overrepresent their voters as compared with voters in single-member districts, even if the multi-member legislative delegation tends to bloc voting. Pp. 144—148.
4
4. Appellees' claim that the fact that the number of ghetto residents who were legislators was not proportionate to ghetto population proves invidious discrimination, notwithstanding the absence of evidence that ghetto residents had less opportunity to participate in the political process, is not valid, and on this record the malproportion was due to the ghetto voters' choices losing the election contests. Pp. 148—155.
5
5. The trial court's conclusion that, with respect to their unique interests, ghetto residents were invidiously underrepresented due to lack of their own legislative voice, was not supported by the findings. Moreover, even assuming bloc voting by the county delegation contrary to the ghetto majority's wishes, there is no constitutional violation, since that situation inheres in the political process, whether the district be single- or multi-member. P. 155.
6
6. Multi-member districts have not been proved inherently invidious or violative of equal protection, but, even assuming their unconstitutionality, it is not clear that the remedy is a single-member system with lines drawn to ensure representation to all sizable racial, ethnic, economic, or religious groups. Pp. 156 160.
7
7. The District Court erred in brushing aside the entire state apportionment policy without solid constitutional and equitable grounds for doing so, and without considering more limited alternatives. Pp. 160—161.
8
Mr. Justice WHITE, joined by The Chief Justice, Mr. Justice BLACK, and Mr. Justice BLACKMUN, concluded, in Part VII, that it was not improper for the District Court to order state-wide redistricting on the basis of the excessive population variances between the legislative districts shown by this record. That court ordered reapportionment not because of population shifts since its 1965 decision upholding the statutory plan but because the disparties had been shown to be excessive by intervening decisions of this Court. Pp. 179—180.
9
Mr. Justice DOUGLAS, joined by Mr. Justice BRENNAN and Mr. Justice MARSHALL, concluded, with respect to redistricting the entire State, that there were impermissible population variances between districts under the current apportionment plan, and that the new Marion County districts would also have impermissible variances, thus requiring state-wide redistricting. Pp. 179—180.
10
William F. Thompson, Indianapolis, Ind., for appellant.
11
James Manahan, Indianapolis, Ind., for appellees.
12
Mr. Justice WHITE delivered the opinion of the Court with respect to the validity of the multi-member election district in Marion County, Indiana (Parts I—VI), together with an opinion (Part VII), in which THE CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice BLACKMUN joined on the propriety of ordering redistricting of the entire State of Indiana, and announced the judgment of the Court.
13
We have before us in this case the validity under the Equal Protection Clause of the statutes districting and apportioning the State of Indiana for its general assembly elections. The principal issue centers on those provisions constituting Marion County, which includes the city of Indianapolis, a multi-member district for electing state senators and representatives.
14
* Indiana has a bicameral general assembly consisting of a house of representatives of 100 members and a senate of 50 members. Eight of the 31 senatorial districts and 25 of the 39 house districts are multi-member districts, that is, districts that are represented by two or more legislators elected at large by the voters of the district.1 Under the statutes here challenged, Marion County is a multi-member district electing eight senators and 15 members of the house.
15
On January 9, 1969, six residents of Indiana, five of whom were residents of Marion County, filed a suit described by them as 'attacking the constitutionality of two statutes of the State of Indiana which provide for multi-member districting at large of General Assembly seats in Marion County, Indiana * * *.'2 Plaintiffs3 Chavis, Ramsey, and Bryant alleged that the two statutes invidiously diluted the force and effect of the vote of Negroes and poor persons living within certain Marion County census tracts constituting what was termed 'the ghetto area.' Residents of the area were alleged to have particular demographic characteristics rendering them cognizable as a minority interest group with distinctive interests in specific areas of the substantive law. With single-member districting, it was said, the ghetto area would elect three members of the house and one senator, whereas under the present districting voters in the area 'have almost no political force or control over legislators because the effect of their vote is cancelled out by other contrary interest groups' in Marion County. The mechanism of political party organization and the influence of party chairmen in nominating candidates were additional factors alleged to frustrate the exercise of power by residents of the ghetto area.
16
Plaintiff Walker, a Negro resident of Lake County, also a multi-member district but a smaller one, alleged an invidious discrimination against Lake County Negroes because Marion County Negroes, although no greater in number than Lake County Negroes, had the opportunity to influence the election of more legislators than Lake County Negroes.4 The claim was that Marion County was one-third larger in population and thus had approximately one-third more assembly seats than Lake County, but that voter influence does not vary inversely with population and that permitting Marion County voters to elect 23 assemblymen at large gave them a disproportionate advantage over voters in Lake County.5 The two remaining plaintiffs presented claims not at issue here.6
17
A three-judge court convened and tried the case on June 17 and 18, 1969. Both documentary evidence and oral testimony were taken concerning the composition and characteristics of the alleged ghetto area, the manner in which legislative candidates were chosen and their residence and tenure, and the performance of Marion County's delegation in the Indiana general assembly.7
18
The three-judge court filed its opinion containing its findings and conclusions on July 28, 1969, holding for plaintiffs. Chavis v. Whitcomb, 305 F.Supp. 1364 (SD Ind.1969). See also 305 F.Supp. 1359 (1969) (pre-trial orders) and 307 F.Supp. 1362 (1969) (statewide reapportionment plan and implementing order). In sum, it concluded that Marion County's multi-member district must be disestablished and, because of population disparities not directly related to the phenomena alleged in the complaint, the entire State must be redistricted. More particularly, it first determined that a racial minority group inhabited an identifiable ghetto area in Indianapolis.8 That area, located in the northern half of Center Township and termed the 'Center Township ghetto,' comprised 28 contiguous census tracts and parts of four others.9 The area contained a 1967 population of 97,000 nonwhites, over 99% of who were Negro and 35,000 whites. The court proceeded to compare six of these tracts, representative of the area, with tract 211, a predominantly white, relatively wealthy suburban census tract in Washington Township contiguous to the northwest corner of the court's ghetto area and with tract 220, also in Washington Township, a contiguous tract inhabited by middle class Negroes. Strong differences were found in terms of housing conditions, income and educational levels, rates of unemployment, juvenile crime, and welfare assistance. The contrasting characteristics between the court's ghetto area and its inhabitants on the one hand and tracts 211 and 220 on the other indicated the ghetto's 'compelling interests in such legislative areas as urban renewal and rehabilitation, health care, employment training and opportunities, welfar, and relief of the poor, law enforcement, quality of education, and anti-discrimination measures.' 305 F.Supp., at 1380. These interests were in addition to those the ghetto shared with the rest of the county, such as metropolitan transportation, flood control, sewage disposal, and education.
19
The court then turned to evidence showing the residences of Marion County's representatives and senators in each of the five general assemblies elected during the period 1960 through 1968.10 Excluding tract 220, the middle class Negro district, Washington Township, the relatively wealthy suburban area in which tract 211 was located, with an average of 13.98% of Marion County's population, was the residence of 47.52% of its senators and 34.33% of its representatives. The court's Center Township ghetto area, with 17.8% of the population, had 4.75% of the senators and 5.97% of the representatives. The non-ghetto area of Center Township, with 23.32% of the population, had done little better. Also, tract 220 alone, the middle class Negro district, had only 0.66% of the county's population but had been the residence of more representatives than had the ghetto area. The ghetto area had been represented in the senate only once—in 1964 by one senator—and the house three times—with one representative in 1962 and 1964 and by two representatives in the 1968 general assembly. The court found the 'Negro Center Township Ghetto population' to be sufficiently large to elect two representatives and one senator if the ghetto tracts 'were specific single-member legislative districts' in Marion County. 305 F.Supp., at 1385. From these data the court found gross inequity of representation, as determined by residence of legislators, between Washington Township and tract 220 on the one hand and Center Township and the Center Township ghetto area on the other.
20
The court also characterized Marion County's general assembly delegation as tending to coalesce and take common positions on proposed legislation. This was 'largely the result of election at large from a common constituency, and obviates representation of a substantial, though minority, interest group within that common constituency.' Ibid. Related findings were that, as a rule, a candidate could not be elected in Marion County unless his party carried the election;11 county political organizations had substantial influence on the selection and lection of assembly candidates (an influence that would be diminished by single-member districting), as well as upon the actions of the county's delegation in the assembly; and that at-large elections made it difficult for the conscientious voter to make a rational selection.
21
The court's conclusions of law on the merits may be summarized as follows:
22
1. There exists within Marion County an identifiable racial element, 'the Negro residents of the Center Township Ghetto,' with special interests in various areas of substantive law, diverging significantly from interests of nonresidents of the ghetto.12
23
2. The voting strength of this racial group has been minimized by Marion County's multi-member senate and house district because of the strong control exercised by political parties over the selection of candidates, the inability of the Negro voters to assure themselves the opportunity to vote for prospective legislators of their choice and the absence of any particular legislators who were accountable for their legislative record to Negro voters.
24
3. Party control of nominations, the inability of voters to know the candidate and the responsibility of legislators to their party and the county at large make it difficult for any legislator to diverge from the majority of his delegation and to be an effective representative of minority ghetto interests.
25
4. Although each legislator in Marion County is arguably responsible to all the voters, including those in the ghetto, '(p)artial responsiveness of all legislators is (not) * * * equal (to) total responsiveness and the informed concern of a few specific legislators.'13
26
5. The apportionment statutes of Indiana as they relate to Marion County operate to minimize and cancel out the voting strength of a minority racial group, namely Negroes residing in the Center Township ghetto, and to deprive them of the equal protection of the laws.
27
6. As a legislative district, Marion County is large as compared with the total number of legislators, it is not subdistricted to insure distribution of the legislators over the county and comprises a multi-member district for both the house and the senate. (See Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376 (1966).)
28
7. To redistrict Marion County alone would leave impermissible variations between Marion County districts and other districts in the State. Statewide redistricting was required, and it could not await the 1970 census figures estimated to be available within a year.
29
8. It may not be possible for the Indiana general assembly to comply with the state constitutional requirement prohibiting crossing or dividing counties for senatorial apportionment14 and still meet the requirements of the Equal Protection Clause adumbrated in recent cases.15
30
9. Plaintiff Walker's claim as a Negro voter resident of Lake County that he was discriminated against because Lake County Negroes could vote for only 16 assemblymen while Marion County Negroes could vote for 23 was deemed untenable. In his second capacity, as a general voter in Lake County, Walker 'probably has received less effective representation' than Marion County voters because 'he votes for fewer legislators and, therefore, has fewer legislators to speak for him,' and, since in theory voting power in multi-member districts does not vary inversely to the number of voters, Marion County voters had greater opportunity to cast tie-breaking or 'critical' votes. But the court declined to hold that the latter ground had been proved, absent more evidence concerning Lake County.16 In this respect-consideration of Walker's claim was limited to that to be given the uniform districting principle in reapportioning the Indiana general assembly.17
31
Turning to the proper remedy, the court found redistricting of Marion County essential. Also, although recognizing the complaint was directed only to Marion County, the court thought it must act on the evidence indicating that the entire State required reapportionment.18 Judgment was withheld in all respects, however, to give the State until October 1, 1969, to enact legislation remedying the improper districting and malapportionment found to exist by the court.19 In so doing the court thought the State 'might wish to give consideration to certain principles of legislative apportionment brought out at the trial in these proceedings.' Id., at 1391. First, the court eschewed any indication that Negroes living in the ghetto were entitled to any certain number of legislators—districts should be drawn with an eye that is color blind, and sophisticated gerrymandering would not be countenanced. Second, the legislature was advised to keep in mind the theoretical advantage inhering in voters in multi-member districts, that is, their theoretical opportunity to cast more deciding votes in any legislative election. Referring to the testimony that bloc-voting, multi-member delegations have disproportionately more power than single-member districts, the court thought that 'the testimony has application here.' Also, 'as each member of the bloc delegation is responsible to the voter majority who elected the whole, each Marion County voter has a greater voice in the legislature, having more legislators to speak for him than does a comparable voter' in a single-member district. Single-member districts, the court thought, would equalize voting power among the districts as well as avoiding diluting political or racial groups located in multi-member districts. The court therefore recommended that the general assembly give consideration to the uniform district principle in making its apportionment.20
32
On October 15, the court judicially noticed that the Indiana general assembly had not been called to redistrict and reapportion the State. Following further hearings and examination of various plans submitted by the parties, the court drafted and adopted a plan based on the 1960 census figures. With respect to Marion County, the court followed plaintiffs' suggested scheme, which was said to protect 'the legally cognizable racial minority group against dilution of its voting strength.' 307 F.Supp. 1362, 1365 (SD Ind.1969). Single-member district were employed throughout the State, county lines were crossed where necessary, judicial notice was taken of the location of the nonwhite population in establishing district lines in metropolitan areas of the State and the court's plan expressly aimed at giving 'recognition to the cognizable racial minority group whose grievance lead (sic) to this litigation.' Id., at 1366.
33
The court enjoined state officials from conducting any elections under the existing apportionment statutes and ordered that the 1970 elections be held in accordance with the plan prepared by the court. Jurisdiction was retained to pass upon any future claims of unconstitutionality with respect to any future legislative apportionments adopted by the State.21
34
Appeal was taken following the final judgment by the three-judge court, we noted probable jurisdiction, 397 U.S. 984, 90 S.Ct. 1112, 1125, 25 L.Ed.2d 392 (1970), and the State's motion for stay of judgment was granted pending our final action on this case, 396 U.S. 1055, 90 S.Ct. 748, 24 L.Ed.2d 757 (1970), thus permitting the 1970 elections to be held under the existing apportionment statutes declared unconstitutional by the District Court. On June 1, 1971, we were advised by the parties that the Indiana Legislature had passed, and the Governor had signed, new apportionment legislation soon to become effective for the 1972 elections and that the new legislation provides for singlemember house and senate districts throughout the State, including Marion County.
II
35
With the 1970 elections long past and the appearance of new legislation abolishing multi-member districts in Indiana, the issue of mootness emerges. Neither party deems the case mooted by recent events. Appellees, plaintiffs below, urge that if the appeal is dismissed as moot and the judgment of the District Court is vacated, as is our practice in such cases, there would be no outstanding judgment invalidating the Marion County multi-member district and that the new apportionment legislation would be in conflict with the state constitutional provision forbidding the division of Marion County for the purpose of electing senators. If the new senatorial districts were invalidated in the state courts in this respect, it is argued that the issue involved in the present litigation would simply reappear for decision. The attorney general for the State of Indiana, for the appellant, taking a somewhat different tack, urges that the issue of the Marion County multi-member district is not moot since the District Court has retained jurisdiction to pass on the legality of subsequent apportionment statutes for the purpose, among others, of determining whether the alleged discrimination against a cognizable minority group has been remedied, an issue that would not arise if the District Court erred in invalidating multi-member districts in Indiana.
36
We agree that the case is not moot and that the central issues before us must be decided. We do not, however, pass upon the details of the plan adopted by the District Court, since that plan in any event would have required revision in light of the 1970 census figures.
III
37
The line of cases from Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), to Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969), and Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969), recognizes that 'representative government is in essence self- government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State's legislative bodies.' Reynolds v. Sims, 377 U.S., at 565, 84 S.Ct., at 1383. Since most citizens find it possible to participate only as qualified voters in electing their representatives, '(f)ull and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature.' Ibid. Hence, apportionment schemes 'which give the same number of representatives to unequal numbers of constituents,' 377 U.S., at 563, 84 S.Ct., at 1382, unconstitutionally dilute the value of the votes in the larger districts. And hence the requirement that 'the seats in both houses of a bicameral state legislature must be apportioned on a population basis.' 377 U.S., at 568, 84 S.Ct., at 1385.
38
The question of the constitutional validity of multi-member districts has been pressed in this Court since the first of the modern reapportionment cases. These questions have focused not on population-based apportionment but on the quality of representation afforded by the multi-member district as compared with single-member districts. In Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964), decided with Reynolds v. Sims, we noted certain undesirable features of the multi-member district but expressly withheld any intimation 'that apportionment schemes which provide for the at large election of a number of legislators from a county, or any political subdivision, are constitutionally defective.' 377 U.S., at 731 n. 21, 84 S.Ct., at 1471. Subsequently, when the validity of the multi-member district, as such, was squarely presented, we held that such a district is not per se illegal under the Equal Protection Clause. Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965); Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967). See also Burnette v. Davis, 382 U.S. 42, 86 S.Ct. 181, 15 L.Ed.2d 35 (1965); Harrison v. Schaefer, 383 U.S. 269, 86 S.Ct. 929, 15 L.Ed.2d 750 (1966).22 That voters in multi-member districts vote for and are represented by more legislators than voters in singlemember districts has so far not demonstrated an invidious discrimination against the latter. But we have deemed the validity of multi-member district systems justiciable, recognizing also that they may be subject to challenge where the circumstances of a particular case may 'operate to minimize or cancel out the voting strength of racial or political elements of the voting population.' Fortson, 379 U.S., at 439, 85 S.Ct., at 501, and Burns, 384 U.S., at 88, 86 S.Ct., at 1294. Such a tendency, we have said, is enhanced when the district is large and elects a substantial proportion of the seats in either house of a bicameral legislature, if it is multi-member for both houses of the legislature or if it lacks provision for at-large candidates running from particular geographical subdistricts, as in Fortson. Burns, 384 U.S., at 88, 86 S.Ct., at 1294. But we have insisted that the challenger carry the burden of proving that multi-member districts unconstitutionally operate to dilute or cancel the voting strength of racial or political elements. We have not yet sustained such an attack.
IV
39
Plaintiffs level two quite distinct challenges to the Marion County district. The first charge is that any multi-member district bestows on its voters several unconstitutional advantages over voters in single-member districts or smaller multi-member districts. The other allegation is that the Marion County district, on the record of this case, illegally minimizes and cancels out the voting power of a cognizable racial minority in Marion County. The District Court sustained the latter claim and considered the former sufficiently persuasive to be a substantial factor in prescribing uniform, single-member districts as the basic scheme of the court's own plan. See 307 F.Supp., at 1366.
40
In asserting discrimination against voters outside Marion County, plaintiffs recognize that Fortson, Burns, and Kilgarlin proceeded on the assumption that the dilution of voting power suffered by a voter who is placed in a district 10 times the population of another is cured by allocating 10 legislators to the larger district instead of the one assigned to the smaller district. Plaintiffs challenge this assumption at both the voter and legislator level. They demonstrate mathematically that in theory voting power does not vary inversely with the size of the district and that to increase legislative seats in proportion to increased population gives undue voting power to the voter in the multimember district since he has more chances to determine election outcomes than does the voter in the single-member district. This consequence obtains wholly aside from the quality or effectiveness of representation later furnished by the successful candidates. The District Court did not quarrel with plaintiffs' mathematics, nor do we. But like the District Court we note that the position remains a theoretical one23 and, as plaintiffs' witness conceded, knowingly avoids and does 'not take into account any political or other factors which might affect the actual voting power of the residents, which might include party affiliation, race, previous voting characteristics or any other factors which go into the entire political voting situation.'24 The real-life impact of multi-member districts on individual voting power has not been sufficiently demonstrated, at least on this record, to warrant departure from prior cases.
41
The District Court was more impressed with the other branch of the claim that multi-member districts inherently discriminate against other districts. This was the assertion that whatever the individual voting power of Marion County voters in choosing legislators may be, they nevertheless have more effective representation in the Indiana general assembly for two reasons. First, each voter is represented by more legislators and therefore, in theory at least, has more chances to influence critical legislative votes. Second, since multimember delegations are elected at large and represent the voters of the entire district, they tend to vote as a bloc, which is tantamount to the district having one representative with several votes.25 The District Court did not squarely sustain this position,26 but it appears to have found it sufficiently persuasive to have suggested uniform districting to the Indiana Legislature and to have eliminated multi-member districts in the court's own plan redistricting the State. See 307 F.Supp., at 1368—1383.
42
We are not ready, however, to agree that multi-member districts, wherever they exist, overrepresent their voters as compared with voters in singlemember districts, even if the multi-member delegation tends to bloc voting. The theory that plural representation itself unduly enhances a district's power and the influence of its voters remains to be demonstrated in practice and in the day-to-day operation of the legislature. Neither the findings of the trial court nor the record before us sustains it, even where bloc voting is posited.
43
In fashioning relief, the three-judge court appeared to embrace the idea that each member of a bloc-voting delegation has more influence than legislators from a single-member district. But its findings of fact fail to deal with the actual influence of Marion County's delegation in the Indiana Legislature. Nor did plaintiffs' evidence make such a showing. That bloc voting tended to occur is sustained by the record, and defendants' own witness thought it was advantageous for Marion County's delegation to stick together. But nothing demonstrates that senators and representatives from Marion County counted for more in the legislature than members from single-member districts or from smaller multi-member districts. Nor is there anything in the court's findings indicating that what might be true of Marion County is also true of other multi-member districts in Indiana or is true of multi-member districts generally. Moreover, Marion County would have no less advantage, if advantage there is, if it elected from individual districts and the elected representatives demonstrated the same blocvoting tendency, which may also develop among legislators representing singlemember districts widely scattered throughout the State.27 Of course it is advantageous to start with more than one vote for a bill. But nothing before us shows or suggests that any legislative skirmish affecting the State of Indiana or Marion County in particular would have come out differently had Marion County been subdistricted and its delegation elected from single-member districts.
44
Rather than squarely finding unacceptable discrimination against outstate voters in favor of Marion County voters, the trial court struck down Marion County's multi-member district because it found the scheme worked invidiously against a specific segment of the county's voters as compared with others. The court identified an area of the city as a ghetto, found it predominantly inhabited by poor Negroes with distinctive substantive-law interests and thought this group unconstitutionally underrepresented because the proportion of legislators with residences in the ghetto elected from 1960 to 1968 was less than the ghetto's proportion of the population, less than the proportion of legislators elected from Washington Township, a less populous district, and less than the ghetto would likely have elected had the county consisted of single-member districts.28 We find major deficiencies in this approach.
45
First, it needs no emphasis here that the Civil War Amendments were designed to protect the civil rights of Negroes and that the courts have been vigilant in scrutinizing schemes allegedly conceived or operated as purposeful devices to further racial discrimination. There has been no hesitation in striking down those contrivances that can fairly be said to infringe on Fourteenth Amendment rights. Sims v. Baggett, 247 F.Supp. 96 (MD Ala. 1965); Smith v. Paris, 257 F.Supp. 901 (MD Ala. 1966), aff'd, 386 F.2d 979 (CA5 1967); and see Gomillion v. Lighfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). See also Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). But there is no suggestion here that Marion County's multi-member district, or similar districts throughout the State, were conceived or operated as purposeful devices to further racial or economic discrimination. As plaintiffs concede, 'there was no basis for asserting that the legislative districts in Indiana were designed to dilute the vote of minorities.' Brief of Appellees (Plaintiffs) 28—29. Accordingly, the circumstances here lie outside the reach of decisions such as Sims v. Baggett, supra.
46
Nor does the fact that the number of ghetto residents who were legislators was not in proportion to ghetto population satisfactorily prove invidious discrimination absent evidence and findings that ghetto residents had less opportunity than did other Marion County residents to participate in the political processes and to elect legislators of their choice. We have discovered nothing in the record or in the court's findings indicating that poor Negroes were not allowed to register or vote, to choose the political party they desired to support, to participate in its affairs or to be equally represented on those occasions when legislative candidates were chosen. Nor did the evidence purport to show or the court find that inhabitants of the ghetto were regularly excluded from the slates of both major parties, thus denying them the chance of occupying legislative seats.29 It appears reasonably clear that the Republican Party won four of the five elections from 1960 to 1968, that Center Township ghetto voted heavily Democratic and that ghetto votes were critical to Democratic Party success. Although we cannot be sure of the facts since the court ignored the question, it seems unlikely that the Democratic Party could afford to overlook the ghetto in slating its candidates.30 Clearly, in 1964—the one election which the Democrats won—the party slated and elected one senator and one representative from Center Township ghetto as well as one senator and four representatives from other parts of Center Township and two representatives from census tract 220, which was within the ghetto area described by plaintiff.31 Nor is there any indication that the party failed to slate candidates satisfactory to the ghetto in other years. Absent evidence or findings we are not sure, but it seems reasonable to infer that had the Democrats won all of the elections or even most of them, the ghetto would have had no justifiable complaints about representation. The fact is, however, that four of the five elections were won by Republicans, which was not the party of the ghetto and which would not always slate ghetto candidates—although in 1962 it nominated and elected one representative and in 1968 two representatives from that area.32 If this is the proper view of this case, the failure of the ghetto to have legislative seats in proportion to its populations emerges more as a function of losing elections than of built-in bias against poor Negroes. The voting power of ghetto residents may have been 'cancelled out' as the District Court held, but this seems a more euphemism for political defeat at the polls.
47
On the record before us plaintiffs' position comes to this: that although they have equal opportunity to participate in and influence the selection of candidates and legislators, and although the ghetto votes predominantly Democratic and that party slates candidates satisfactory to the ghetto, invidious discrimination nevertheless results when the ghetto, along with all other Democrats, suffers the disaster of losing too many elections. But typical American legislative elections are district-oriented, head-on races between candidates of two or more parties. As our system has it, one candidate wins, the others lose. Arguably the losing candidates' supporters are without representation since the men they voted for have been defeated; arguably they have been denied equal protection of the laws since they have no legislative voice of their own. This is true of both single-member and multimember districts. But we have not yet deemed it a denial of equal protection to deny legislative seats to losing candidates, even in those so-called 'safe' districts where the same party wins year after year.
48
Plainly, the District Court saw nothing unlawful about the impact of typical single-member district elections. The court's own plan created districts giving both Republicans and Democrats several predictably safe general assembly seats, with political, racial or economic minorities in those districts being 'unrepresented' year after year. But similar consequences flowing from Marion County multi-member district elections were viewed differently. Conceding that all Marion County voters could fairly be said to be represented by the entire delegation, just as is each voter in a single-member district by the winning candidate, the District Court thought the ghetto voters' claim to the partial allegiance of eight senators and 15 representatives was not equivalent to the undivided allegiance of one senator and two representatives; nor was the ghetto voters' chance of influencing the election of an entire slate as significant as the guarantee of one ghetto senator and two ghetto representatives.33 As the trial court saw it, ghetto voters could not be adequately and equally represented unless some of Marion County's general assembly seats were reserved for ghetto residents serving the interests of the ghetto majority. But are poor Negroes of the ghetto any more underrepresented than poor ghetto whites who also voted Democratic and lost, or any more discriminated against than other interest groups or voters in Marion County with allegiance to the Democratic Party, or, conversely, and less represented than Republican areas or voters in years of Republican defeat? We think not. The mere fact that one interest group or another concerned with the outcome of Marion County elections has found itself outvoted and without legislative seats of its own provides no basis for invoking constitutional remedies where, as here, there is no indication that this segment of the population is being denied access to the political system.
49
There is another gap in the trial court's reasoning. As noted by the court, the interest of ghetto residents in certain issues did not measurably differ from that of other voters. Presumably in these respects Marion County's assemblymen were satisfactorily representative of the ghetto. As to other matters, ghetto residents had unique interests not necessarily shared by others in the community and on these issues the ghetto residents were invidiously underrepresented absent their own legislative voice to further their own policy views.
50
Part of the difficulty with this conclusion is that the findings failed to support it. Plaintiffs' evidence purported to show disregard for the ghetto's distinctive interests; defendants claimed quite the contrary. We see nothing in the findings of the District Court indicating recurring poor performance by Marion County's delegation with respect to Center Township ghetto, nothing to show what the ghetto's interests were in particular legislative situations and nothing to indicate that the outcome would have been any different if the 23 assemblymen had been chosen from single-member districts. Moreover, even assuming bloc voting by the delegation contrary to the wishes of the ghetto majority, it would not follow that the Fourteenth Amendment had been violated unless it is invidiously discriminatory for a county to elect its delegation by majority vote based on party or candidate platforms and so to some extent predetermine legislative votes on particular issues. Such tendencies are inherent in government by elected representatives; and surely elections in single-member districts visit precisely the same consequences on the supporters of losing candidates whose views are rejected at the polls.
V
51
The District Court's holding, although on the facts of this case limited to guaranteeing one racial group representation, is not easily contained. It is expressive of the more general proposition that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and represents a majority living in an area sufficiently compact to constitute a single-member district.34 This approach would make it difficult to reject claims of Democrats, Republicans, or members of any political organization in Marion County who live in what would be safe districts in a single-member district system but who in one year or another, or year after year, are submerged in a one-sided multi-member district vote.35 There are also union oriented workers, the university community, religious or ethnic groups occupying identifiable areas of our heterogeneous cities and urban areas. Indeed, it would be difficult for a great many, if not most, multi-member districts to survive analysis under the District Court's view unless combined with some voting arrangement such as proportional representation or cumulative voting aimed at providing representation for minority parties or interests.36 At the very least, affirmance of the District Court would spawn endless litigation concerning the multi-member district systems now widely employed in this country.37
52
We are not insensitive to the objections long voiced to multi-member district plans.38 Although not as prevalent as they were in our early history, they have been with us since colonial times and were much in evidence both before and after the adoption of the Fourteenth Amendment.39 Criticism is rooted in their winner-take-all aspects, their tendency to submerge minorities and to overrepresent the winning party as compared with the party's statewide electoral position, a general preference for legislatures reflecting community interests as closely as possible and disenchantment with political parties and elections as devices to settle policy differences between contending interests. The chance of winning or significantly influencing intraparty fights and issue-oriented elections has seemed to some inadequate protection to minorities, political, racial, or economic; rather, their voice, it is said, should also be heard in the legislative forum where public policy is finally fashioned. In our view, however, experience and insight have not yet demonstrated that multi-member districts are inherently invidious and violative of the Fourteenth Amendment. Surely the findings of the District Court do not demonstrate it. Moreover, if the problems of multi-member districts are unbearable or even unconstitutional it is not at all clear that the remedy is a single-member district system with its lines carefully drawn to ensure representation to sizable racial, ethnic, economic, or religious groups and with its own capacity for overrepresenting and underrepresenting parties and interests and even for permitting a minority of the voters to control the legislature and government of a State. The short of it is that we are unprepared to hold that district-based elections decided by plurality vote are unconstitutional in either single- or multi-member districts simply because the supporters of losing candidates have no legislative seats assigned to them. As presently advised we hold that the District Court misconceived the Equal Protection Clause in applying it to invalidate the Marion County multimember district.
VI
53
Even if the District Court was correct in finding unconstitutional discrimination against poor inhabitants of the ghetto, it did not explain why it was constitutionally compelled to disestablish the entire county district and to intrude upon state policy any more than necessary to ensure representation of ghetto interests. The court entered judgment without expressly putting aside on supportable grounds the alternative of creating single-member districts in the ghetto and leaving the district otherwise intact, as well as the possibility that the Fourteenth Amendment could be satisfied by a simple requirement that some of the at-large candidates each year must reside in the ghetto. Cf. Fortson v. Dorsey, supra.
54
We are likewise at a loss to understand how on the court's own findings of fact and conclusions of law it was justified in eliminating every multi-member district in the State of Indiana. It did not forthrightly sustain the theory that multi-member districts always overrepresent their voters to the invidious detriment of single-member residents. Nor did it examine any multi-member district aside from Marion County for possible intradistrict discrimination.
55
The remedial powers of an equity court must be adequate to the task, but they are not unlimited. Here the District Court erred in so broadly brushing aside state apportionment policy without solid constitutional or equitable grounds for doing so.
VII
56
At the same time, however, we reject defendant's suggestion that the court was wrong in ordering statewide reapportionment. After determining that Marion County required reapportionment, the court concluded that 'it becomes clear beyond question that the evidence adduced in this case and the additional apportionment requirements set forth by the Supreme Court call for a redistricting of the entire state as to both houses of the General Assembly.' 305 F.Supp., at 1391. This evidence, based on 1960 census figures, showed that Senate district 20, with one senator for 80,496, was overrepresented by 13.68% while district 5, with one senator for 106,790, was underrepresented by 14.52%, for a total variance of 28.20% and a ratio between the largest and smallest districts of 1.327 to 1. The house figures were similar. The variation ranged from one representative for 41,449 in district 39 to one for 53,003 in district 35, for a variance of 24.78% and a ratio of 1.279 to 1.40 These variations were in excess of, or any nearly equal to, the variation of 25.65% and the ratio of 1.30 to 1 which we held excessive for state legislatures41 in Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967). Even with this convincing showing of malapportionment, the court refrained from action in order to allow the Indiana Legislature to call a special session for the purpose of redistricting. When the legislature ignored the court's findings and suggestion, it was not improper for the court to order statewide redistricting, as district courts have done from the time Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and its companion cases were decided.42 And see Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 673, 84 S.Ct. 1429, 1438, 12 L.Ed.2d 595 (1964).
57
Nor can we accept defendant's argument that the statutory plan was beyond attack because the District Court had held in 1965 that at that time the plan met the 'substantial equality' test of Reynolds. Stout v. Bottorff, 249 F.Supp. 488 (SD Ind.1965). Defendant does not argue that the 1969 variances were acceptable under the Reynolds test, which has been considerably refined since that decision, see Swann v. Adams, supra. Rather he contends that because Reynolds indicated that decennial reapportionment would be a 'rational approach' to the problem, a State cannot be compelled to reapportion itself more than once in a 10-year period. Such a reading misconstrues the thrust of Reynolds in this respect. Decennial reapportionment was suggested as a presumptively rational method to avoid 'daily, monthly, annual or biennial reapportionment' as population shifted throughout the State.43 Here, the District Court did not order reapportionment as a result of population shifts since the 1965 Stout decision, but only because the disparities among districts which were thought to be permissible at the time of that decision had been shown by intervening decisions of this Court to be excessive.
58
We therefore reverse the judgment of the District Court and remand the case to that court for further proceedings consistent with this opinion.
59
It is so ordered.
60
Judgment reversed and case remanded.
61
Mr. Justice STEWART joins in Part I through VI of the Court's opinion, holding that the multi-member districting scheme here in issue did not violate the Equal Protection Clause of the Fourteenth Amendment. He dissents from Part VII of the opinion for the reasons expressed in his dissenting opinion in Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 744, 84 S.Ct. 1459, 1477, 12 L.Ed.2d 632.
62
The following table was included in the trial court's findings:
63
APPENDIX TO OPINION OF THE COURT
TABLE NO. 7Separate opinion of Mr. Justice HARLAN.
Earlier this Term I remarked on 'the evident malaise among the members of the Court' with prior decisions in the field of voter qualifications and reapportionment. Oregon v. Mitchell, 400 U.S. 112, 218, 91 S.Ct. 260, 312, 27 L.Ed.2d 272 (1970) (separate opinion of this writer).
Today's opinions in this and two other voting cases now decided1 confirm that diagnosis.
* Past decisions have held that districting in local governmental units must approach equality of voter population 'as far as is practicable,' Hadley v. Junior College District, 397 U.S. 50, 56, 90 S.Ct. 791, 795, 25 L.Ed.2d 45 (1970), and that the 'as nearly as is practicable' standard of Wesberry v. Sanders, 376 U.S. 1, 7—8, 84 S.Ct. 526, 529—530, 11 L.Ed.2d 481 (1964), for congressional districting forbade a maximum variation of 6%. Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969). Today the Court sustains a local governmental apportionment scheme with a 12% variation. Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399.
Other past decisions have suggested that multi-member constituencies would be unconstitutional if they could be shown 'under the circumstances of a particular case * * * to minimize or cancel out the voting strength of racial or political elements of the voting population.' Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965); Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376 (1966). Today the Court holds that a three-judge District Court, which struck down an apportionment scheme for just this reason, 'misconceived the Equal Protection Clause.' Ante, at 160.
Prior opinions stated that 'once the class of voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded.' Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 809, 9 L.Ed.2d 821 (1963); Hadley v. Junior College District, 397 U.S. 50, 59, 90 S.Ct. 791, 796, 25 L.Ed.2d 45 (1970). Today the Court sustains a provision that gives opponents of school bond issues half again the voting power of proponents. Gordon v. Lance, supra, 403 U.S. 1, 91 S.Ct. 1889.
II
The Court justifies the wondrous results in these cases by relying on different combinations of factors. Abate v. Mundt relies on the need for flexibility in local governmental arrangements, the interest in preserving the integrity of political subdivisions, and the longstanding tradition behind New York's practice in the latter respect. This case finds elementary probability theory too simplistic as a guide to resolution of what is essentially a practical question of political power; the opinion relies on the long history of multi-member districts in this country and the fear that 'affirmance of the District Court would spawn endless litigation.' Ante, at 157. Gordon v. Lance relies heavily on the 'federal analogy' and the prevalence of similar anti-majoritarian elements in the constitutions of the several States.
To my mind the relevance of such considerations as the foregoing is undeniable and their cumulative effect is unanswerable. I can only marvel, therefore, that they were dismissed, singly and in combination, in a line of cases which began with Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), and ended with Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970).
That line of cases can best be understood, I think, as reflections of deep personal commitments by some members of the Court to the principles of pure majoritarian democracy. This majoritarian strain and its nonconstitutional sources are most clearly revealed in Gray v. Sanders, supra, 372 U.S., at 381, 83 S.Ct., at 809, where my Brother Douglas, speaking for the Court, said: 'The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.' If this philosophy of majoritarianism had been given its head, it would have led to different results in each of the cases decided today, for it is in the very nature of the principle that it regards majority rule as an imperative of social organization, not subject to compromise in furtherance of merely political ends. It is a philosophy which ignores or overcomes the fact that the scheme of the Constitution is not one of majoritarian democracy, but of federal republics, with equality of representation a value subordinate to many others, as both the body of the Constitution and the Fourteenth Amendment itself show on their face. See generally Baker v. Carr, 369 U.S. 186, 297—324, 82 S.Ct. 691, 753 767, 7 L.Ed.2d 663 (1962) (Frankfurter, J., dissenting).
III
If majoritarianism is to be rejected as a rule of decision, as the Court implicitly rejects it today, then an alternative principle must be supplied if this earlier line of cases just referred to is still to be regarded as good law. The reapportionment opinions of this Court provide little help. They speak in conclusory terms of 'debasement' or 'dilution' of the 'voting power' or 'representation' of citizens without explanation of what these concepts are. The answers are hardly apparent, for as the Court observes today:
'As our system has it, one candidate wins, the others lose. Arguably the losing candidates' supporters are without representation since the men they voted for have been defeated; arguably they have been denied equal protection of the laws since they have no legislative voice of their own. * * * But we have not yet deemed it a denial of equal protection to deny legislative seats to losing candidates, even in those so-called 'safe' districts where the same party wins year after year.' Ante, at 153.
A coherent and realistic notion of what is meant by 'voting power' might have restrained some of the extreme lengths to which this Court has gone in pursuit of the will-o'-the-wisp of 'one man, one vote.'
An interesting illustration of the light which a not implausible definition of 'voting power' can shed on reapportionment doctrine is provided by the theoretical model created by Professor Banzhaf, to which the Court refers ante, at 144—146.2 This model uses as a measure of voting power the probability that a given voter will cast a tie-breaking ballot in an election. Two further assumptions are made: first, that the voting habits of all members of the electorate are alike; and second, that each voter is equally likely to vote for either candidate before him. On these assumptions, and taking the voting population in Marion County as roughly 300,000, it can be shown that the probability of an individual voter's casting a decisive vote in a given election is approximately .00146. This provides a standard to which 'voting power' of residents in other districts may be compared. See generally Banzhaf, Multi-Member Electoral Districts—Do They Violate the 'One Man, One Vote' Principle, 75 Yale L.J. 1309 (1966).
However, Professor Banzhaf's model also reveals that minor variations in assumptions can lead to major variations in results. For instance, if the temper of the electorate changes by one-half of one percent,3 each individual's voting power is reduced by a factor of approximately 1,000,000. Or if a few of the 300,000 voters are committed—say 15,000 to candidate A and 10,000 to candidate B4—the probability of any individual's casting a tie-breaking vote is reduced by a factor on the rough order of 120,000,000,000,000,000,000. Obviously in comparison with the astronomical differences in voting power which can result from such minor variations in political characteristics, the effects of the 12% and 28% population variations considered in Abate v. Mundt and in this case are de minimis, and even the extreme deviations from the norm presented in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), pale into insignificance.5
It is not surprising therefore that the Court in this case declines to embrace the measure of voting power suggested by Professor Banzhaf. But it neither suggests an alternative nor considers the consequences of its inability to measure what it purports to be equalizing. See n. 2, supra. Instead it becomes enmeshed in the haze of slogans and numerology which for 10 years has obscured its vision in this field, and finally remands the case 'for further proceedings consistent with (its) opinion.' Ante, at 163. This inexplicit mandate is at least subject to the interpretation that the court below is to inquire into such matters as 'the actual influence of Marion County's delegation in the Indiana Legislature,' ante, at 147, and the possibility of 'recurring poor performance by Marion County's delegation with respect to Center Township ghetto,' ante, at 155, with a view to determining whether 'any legislative skirmish affecting the State of Indiana or Marion County in particular would have come out differently had Marion County been subdistricted and its delegation elected from single-member districts.' Ante, at 148. If there are less appropriate subjects for federal judicial inquiry, they do not come readily to mind. The suggestion implicit in the Court's opinion that appellees may ultimately prevail if they can make their record in these and other like respects should be recognized for what it is: a manifestation of frustration by a Court that has become trapped in the 'political thicket' and is looking for the way out.
This case is nothing short of a complete vindication of Mr. Justice Frankfurter's warning nine years ago 'of the mathematical quagmire (apart from divers judicially inappropriate and elusive determinants) into which this Court today catapults the lower courts of the country.' Baker v. Carr, 369 U.S. 186, 268, 82 S.Ct. 691, 738, 7 L.Ed.2d 663 (1962) (dissenting opinion). With all respect, it also bears witness to the morass into which the Court has gotten itself by departing from sound constitutional principle in the electoral field. See the dissenting opinion of Mr. Justice Frankfurter in Baker v. Carr, supra, and my separate opinions in Reynolds v. Sims, 377 U.S. 533, 589, 84 S.Ct. 1362, 1395, 12 L.Ed.2d 506 (1964), and in Oregon v. Mitchell, 400 U.S. 112, 152, 91 S.Ct. 260, 279, 27 L.Ed.2d 272 (1970). I hope the day will come when the Court will frankly recognize the error of its ways in ever having undertaken to restructure state electoral processes.
I would reverse the judgment below and remand the case to the District Court with directions to dismiss the complaint.
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL concur, dissenting in part and concurring in the result in part.
The Indiana Constitution provides that 'no county, for Senatorial apportionment, shall ever be divided.' Art. 4, § 6. The legislative apportionment statutes in Indiana which implemented that provision gave Marion County eight senators, all elected at large. The statutes also gave the county 15 at-large representatives.
Marion County is the most populous in the State. It contains nine townships and includes the city of Indianapolis. On January 9, 1969, this lawsuit was commenced to require a subdivision of the multi-member districting practiced in Marion County. Certain voters contended that the multi-member district deprived them of equal protection of the laws because it diluted the voting rights of an identifiable racial minority within the county.
To determine if there was an identifiable minority within the county the District Court adopted the following definition of 'ghetto':
'A primarily residential section of an urban area characterized by a higher relative density of population and a higher relative proportion of substandard housing than in the overall metropolitan area which is inhabited predominantly by members of a racial, ethnic, or other minority group, most of whom are of lower socioeconomic status than the prevailing status in the metropolitan area and whose residence in the section is often the result of social, legal, or economic restrictions or custom.' 305 F.Supp. 1364, 1373.
Applying the definition to the extensive evidence in the case, the District Court found there was an identifiable ghetto area within Center Township. The court then contrasted the residence of those elected to the state House and Senate from Marion County since 1960. There had been 21 elected senators; two came from Center Township, 11 from Washington Township. Of the 67 representatives, 12 came from Center Township and 28 from Washington Township.
The District Court concluded:
'The inequity of representation by residence of legislators between Washington and Center Townships is apparent * * *. Washington Township, the upper middle-class and wealthy suburban area having 14.64% of the population of Marion County, was the residence of 52.27% of the senators and 41.79% of the representatives. Center Township, having 41.14% of the population (approximately three times as large), was the residence of 9.51% of the senators (less than one-fifth of Washington Township) and 17.91% of the representatives (approximately three-sevenths of Washington Township).' 305 F.Supp., at 1385.
The court found that the voting strength of the cognizable element within Center Township was severely minimized, that minimization occurred by virtue of the strong control which the political parties exert over the nomination process in Marion County, and that black voters within Center Township are unable to be assured of the opportunity of voting for prospective legislators of their choice. The court further found that '(u)nder the evidence before the Court such invidious effects will continue so long as Marion County is apportioned into large senate and house multi-member districts.' 305 F.Supp., at 1399.
* Based on its findings the District Court held the then Indiana apportionment acts unconstitutional and enjoined their enforcement. The court then determined that to redistrict Marion County alone would leave constitutionally impermissible population variances between the newly created districts and the other districts in the State and therefore redistricting the entire State was necessary. In its redistricting plan the District Court divided well over half of the counties in the State despite Art. 4, § 6, of the Indiana Constitution. Marion County itself was divided into seven separate senatorial districts and an eighth was created by taking part of Marion and parts of Johnson and Morgan Counties. The court mandated that the 1970 election be conducted in accordance with the plan it approved and the court retained jurisdiction for the purpose of passing on any future claims of unconstitutionality made by the plaintiffs against any future legislative apportionment plan promulgated. This Court stayed the District Court's order. 396 U.S. 1055, 90 S.Ct. 748, 24 L.Ed.2d 757.
This suit was commenced some 22 months before the 1970 election in ample time for a decision on the merits. The plaintiffs in fact won below but this Court stayed the order. Now the election has been held and a federal decennial census has been taken. Under the compulsion of the decree of the District Court the legislature has adopted single-member districts for the entire State. But absent a federal decree they would certainly follow the mandate of the Indiana Constitution.
As the Court says, the fact that the 1970 election is history does not affect the underlying claim in this case. We have a finding of fact that an identifiable racial minority has its voting strength severely minimized by the operation of multi-member districts. We also have a finding that the invidious effects will continue so long as Marion County has multi-member districts. Under the order of the District Court (absent out stay) the 1965 apportionment statutes could not be used. The District Court would retain jurisdiction and no attempt by the state legislature to apply Art. 4, § 6, of the Constitution would be successful because under the conclusions of the District Court it is unconstitutional as applied to Marion County. See Reynolds v. Sims, 377 U.S. 533, 584, 84 S.Ct. 1362, 1393, 12 L.Ed.2d 506. There is no chance that the Indiana Constitution can be amended in time to undo the harm. By its own provisions any amendment requires a majority vote in each house of two consecutive general assemblies; it is then referred to the voters and ratified by majority vote. Art. 16, § 1.
The Indiana Constitution requires 'an enumeration * * * of all male inhabitants over the age of twenty-one years' to be made every six years. Art. 4, § 4. Then at the next legislative session, the general assembly is directed to reapportion the State according to the number of male inhabitants above the age of 21. Art. 4, § 5. These provisions fell into disuse and the last enumeration provided for was in 1921 and, prior to Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, the legislature had not been apportioned since that time. See Matthews v. Handley, 179 F.Supp. 470 (ND Ind. 1959); Fruit v. Metropolitan School District, 241 Ind. 621, 172 N.E.2d 864. Indiana courts had no power to require reapportioning under the state constitution. Parker v. State ex rel. Powell, 133 Ind. 178, 32 N.E. 836.
In 1969 the legislature initially approved proposed constitutional changes to those two sections which will provide for using the federal decennial census for Indiana and apportioning the State immediately thereafter, such apportionment to remain unaltered until the next decennial census. S.J.Res. No. 26, Acts 1969, c. 464. The provision must still be approved by the 1971 general assembly and a majority of the voters. See Art. 16, § 1, of the Indiana Constitution. At the time this case was argued under the Indiana Apportionment Act of 1965 (2d Spec.Sess.), c. 4, § 1, and c. 5, § 1, the 1960 Decennial Census was accepted as correct.
Nor does the fact that the state legislature has passed a reapportionment plan abolishing multi-member districts throughout the entire State moot this case. But for the decision below no such plan would have been forthcoming. The plan is in plain violation of the state constitution and in view of the fact that no Indiana Legislature has ever violated that provision of the state constitution before it is obvious that the impetus came from the outside.1 The provision of the state constitution forbidding dividing a county for senatorial apportionment is unconstitutional under the Federal Constitution as applied to Marion County. See Reynolds v. Sims, 377 U.S., at 584, 84 S.Ct., at 1393. Mooting the case would accomplish nothing. If we were to moot it, the state courts would likely void the 1971 apportionment plan as violative of the state constitution and then the parties would be right back where they were at the beginning of this lawsuit. It is apparent this controversy remains alive and that there is no reason to wait two or more years in order to decide it in a case growing out of a state court determination on the constitutionality of single-member districts in Marion County, as would happen should we vacate the decree below and force the parties to another forum for another round of litigation on the same issue.
The constitutional provision which now requires multi-member senatorial districts has been in Indiana's constitution from the date of enactment—1851. And the ghetto voters' position as a class will not change. The findings of the District Court clearly state the invidious effects will last so long as multi-member districting lasts. The District Court found that 'to redistrict Marion County alone, to provide single-member districts or any other type of districts meeting constitutional standards, would leave impermissible population variations between the new Marion County districts and other districts in the State.' 305 F.Supp., at 1399. Accordingly the court redistricted the entire State.2 The decision to redistrict the State and the finding of minimization of the ghetto voters' strength are intertwined. As the District Court stated, the 'portions of the * * * statutes relating to Marion County' were found to be not severable from the full body of the statutes. 305 F.Supp. at 1399. There is no showing here that that finding is even partially erroneous let alone clearly erroneous. A decision to redistrict Marion County involves the entire State; each properly must be considered with the other.
II
The merits of the case go to the question reserved in Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401, and in Wells v. Rockefeller, 394 U.S. 542, 544, 89 S.Ct. 1234, 1236, 22 L.Ed.2d 535, whether a gerrymander can be 'constitutionally impermissible.' The question of the gerrymander3 is the other half of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506. Fair representation of voters in a legislative assembly—one man, one vote—would seem to require (1) substantial equality of population within each district and (2) the avoidance of district lines that weigh the power of one race more heavily than another. The latter can be done—and is done—by astute drawing of district lines that makes the district either heavily Democratic or heavily Republican as the case may be. Lines may be drawn so as to make the voice of one racial group weak or strong, as the case may be.
The problem of the gerrymander is how to defeat or circumvent the sentiments of the community. The problem of the law is how to prevent it. As Mr. Justice Harlan once said 'A computer may grind out district lines which can totally frustrate the popular will on an overwhelming number of critical issues.' Wells v. Rockefeller, 394 U.S., at 551, 89 S.Ct., at 1240 (dissenting). The easy device is the gerrymander. The District Court found that it operated in this case to dilute the vote of the blacks.
III
In Gomillion v. Lightfoot, 364 U.s. 339, 81 S.Ct. 125, 5 L.Ed.2d 110, we dealt with the problem of a State intentionally making a district smaller to exclude black voters. Here we have almost the converse problem. The State's districts surround the black voting area with white voters.
Gomillion, involving the turning of the city of Tuskegee from a geographical square 'to an uncouth twenty-eight-sided figure,' 364 U.S., at 340, 81 S.Ct., at 126, was only one of our cases which dealt with elevating the political interests of one identifiable group over those of another. Georgia's county unit system was similar, although race was not a factor. Under the Georgia system a farmer in a rural county could have up to 99 times the voting power of his urbandwelling brother. See Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821. Here the districting plan operates to favor 'upper-middle class and wealthy' suburbanites. 305 F.Supp., at 1385.
A showing of racial motivation is not necessary when dealing with multi-member districts. Burns v. Richardson, 384 U.S., at 88, 86 S.Ct., at 1294; Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401. Although the old apportionment plan which is in full harmony with the State's 1851 constitution, may not be racially motivated, the test for multi-member districts is whether there are invidious effects.
That rule is but an application of a basic principle applied in Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616. There a city passed a housing law which provided that before an ordinance regulating the sale or lease of realty on the basis of race could become effective it must be approved by a majority vote. Thus, the protection of minority interests became much more difficult. We held that a State or a state agency could not in its voting scheme so disadvantage black interests.
Multi-member districts are not per se unconstitutional. Fortson v. Dorsey, 379 U.S., at 439, 85 S.Ct., at 501. In that case we expressly reserved judgment on the question of whether a multi-member districting plan which operated 'to minimize or cancel out the voting strength of racial or political elements of the voting population' could pass constitutional muster. Ibid.
In Burns v. Richardson, supra, we again considered the problems of multi-member districts. The doubts noted in Fortson v. Dorsey were resolved and we stated that assuming the requirements of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, were satisfied, multi-member districts are unconstitutional 'only if it can be shown that 'designedly or otherwise' * * * (such a district would operate) to minimize or cancel out the voting strength of racial or political elements of the voting population.' 384 U.S., at 88, 86 S.Ct., at 1294. We went on to suggest how the burden of proof could be met.
'It may be that this invidious effect can more easily be shown if, in contrast to the facts in Fortson, districts are large in relation to the total number of legislators, if districts are not appropriately subdistricted to assure distribution of legislators that are resident over the entire district, or if such districts characterize both houses of a bicameral legislature rather than one.' Ibid.
These factors are all present in this case. Between the largest (Marion) and second largest (Lake) counties in the State, 26% of each house of the legislature is controlled. There is no subdistricting under the Indiana plan. Cf. Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656. And multi-member districts are used in both houses of the legislature.
In both Fortson and Burns we demanded that the invidious effects of multi-member districts appear from evidence in the record. Here that demand is satisfied by (1) the showing of an identifiable voting group living in Center Township, (2) the severe discrepancies of residency of elected members of the general assembly between Center and Washington Townships, cf. Brennan, J., dissenting in Abate v. Mundt, 403 U.S. 182, 187, 91 S.Ct. 1904, 1908, 29 L.Ed.2d 399, (3) the finding of pervasive influence of the county organizations of the political parties, and (4) the finding that legislators from the county maintain 'common, undifferentiated' positions on political issues.4 305 F.Supp., at 1385.
IV
Little time need be spent on the District Court's decision to redistrict the entire State. The court found that there were already impermissible population variances between districts under the current apportionment plan. The ratio between the largest and smallest Senate district was 1.327 to 1. For the House it was 1.279 to 1. The court also found that the new Marion County districts would also have impermissible population variances when compared to existing districts.
On these facts the demands of our decisions required redistricting. As Reynolds v. Sims showed, the state constitution must give way to requirements of the Supremacy Clause when there is a conflict with the Federal Constitution. And, finally, the District Court's own plan was exemplary. The population ratio for the largest and smallest Senate districts was 1.017 to 1 and for the House it was 1.020 to 1.
V
It is said that if we prevent racial gerrymandering today, we must prevent gerrymandering of any special interest group tomorrow, whether it be social, economic, or ideological. I do not agree. Our Constitution has a special thrust when it come to voting; the Fifteenth Amendment says the right of citizens to vote shall not be 'abridged' on account of 'race, color, or previous condition of servitude.'
Our cases since Baker v. Carr have never intimated that 'one man, one vote' meant 'one white man, one vote.' Since 'race' may not be gerrymandered, I think the Court emphasizes the irrelevant when it says that the effect on 'the actual voting power' of the blacks should first be known. They may be all Democratic or all Republican; but once their identity is purposely washed out of the system, the system, as I see it, has a constitutional defect. It is asking the impossible for us to demand that the blacks first show that the effect of the scheme was to discourage or prevent poor blacks from voting or joining such party as they chose. On this record, the voting rights of the blacks have been 'abridged,' as I read the Constitution.
The District Court has done an outstanding job, bringing insight to the problems. One can always fault a lower court by stating theoretical aspects of apportionment plans that may not have been considered. This District Court acted earnestly and boldly to correct a festering electoral system. I would not even vacate and remand so that it could revise its plan in accordance with the 1970 census figures. That court has retained jurisdiction of the cause and has sense enough to update its own plan. We can make the contribution of the District Court enormous and abiding by leaving it the initiative to carry out the mandate of Reynolds v. Sims.
I would affirm the judgment.
1 As later indicated, shortly before announcement of this opinion, the Court was informed that the statutes at issue here will soon be superseded by new apportionment legislation recently adopted by the Indiana Legislature and signed by the Governor. That legislation provides for single-member districts throughout the State including Marion County. For the reasons stated below the controversy is not moot, and, as will be evident, this opinion proceeds as though the state statutes before us remain undisturbed by new legislation.
2 The provisions attacked, contained in Acts 1965 (2d Spec.Sess.), c. 5, § 3, and c. 4, § 3, and appearing in Ind.Ann.Stat. §§ 34—102 and 34—104 (1969), I.C.1971, 2—1—1—3, 2—1 2—3, were as follows:
'34—102. Apportionment of representatives.—Representatives shall be elected from districts comprised of one (1) or more counties and having one (1) or more representatives, as follows: * * * Twenty-sixth District Marion County: fifteen (15) representatives * * *.'
'34—104. Apportionment of senators.—Senators shall be elected from districts, comprised of one or more counties and having one or more senators, as follows: * * * Nineteenth District—Marion County: eight (8) senators, two (2) to be elected in 1966.'
The District Court denied plaintiffs' motion to have the suit declared a class action under Fed.Rule Civ.Proc. 23(b). 305 F.Supp. 1359, 1363 (SD Ind.1969). See n. 17, infra.
3 Plaintiffs in the trial court are appellees here and defendant Whitcomb is the appellant. We shall refer to the parties in this opinion as they stood in the trial court.
4 Walker also alleged that 'in both Lake and Marion County, Indiana there are a sufficient number of negro (sic) voters and inhabitants for a bloc vote by the said inhabitants to change the result of any election recently held.'
5 The mathematical basis for the assertion was set out in detail in the complaint. See also n. 23, infra. It was also alleged that '(b)oth Marion County * * * and Lake County * * * are the sole matter for consideration before two separate state legislative committees, one directed to the affairs of each county. The laws enacted * * * which directly effect (sic) Marion or Lake County typically apply to only one county or the other.' App. 15.
6 Plaintiff Marilyn Hotz, a Republican and a resident of what she described as the white suburdan belt of Marion County lying outside the city of Indianapolis, alleged that malapportionment of precincts in party organization together with multi-member districting indiviously diluted her vote.
Plaintiff Rowland Allan (spelled 'Allen' in the District Court's opinion), an independent voter, alleged that multi-member districting deprived him of any chance to make meaningful judgments on the merits of individual candidates because he was confronted with a list of 23 candidates of each party.
7 In their final arguments and proposed findings of fact and conclusions of law plaintiffs urged that the Center Township ghetto was largely inhabited by Negroes who had distinctive interests and whose bloc voting potential was canceled out by opposing interest groups in the at-large elections held in Marion County's multi-member district, that the few Negro legislators including the three then serving the general assembly from Marion County, were chosen by white voters and were unrepresentative of ghetto Negroes, and that Negroes should be given the power and opportunity to choose their own assemblymen. It was also urged that the power of political as well as racial elements was canceled out in that in every assembly election since 1922, one party or the other had won all the seats with two minor exceptions; hence many voters, in numbers large enough and geographically so located as to command control over one or more general assembly seats if Marion County were subdistricted, were wholly without representation whichever way an assembly election turned out.
The defendants argued that Marion County's problems were countywide and that its delegation could better represent the various interests in the county if elected at large and responsible to the county as a whole rather than being elected in single-member districts and thus fragmented by parochial interests and jealousies. They also urged that the 1960 census figures were an unreliable basis for redistricting Marion County and opposed the court's suggestion that the apportionment of the whole State was an issue properly before the court on the pleadings and the evidence.
8 A ghetto was defined as a residential area with a higher density of population and greater proportion of substandard housing than in the overall metropolitan area and inhabited primarily by racial or other minority groups with lower than average socioeconomic status and whose residence in the area is often the result of a social, legal, or economic restriction or custom. 305 F.Supp., at 1373.
9 The court's ghetto area was not congruent with that alleged in the complaint. It included five census tracts and parts of four others not within the ghetto area alleged in the complaint, but it omitted census tract 220 which the complaint had included. 305 F.Supp., at 1379—1381. That district, which was contiguous to both tract 211 and the ghetto area, was inhabited primarily by Negroes but was found to be a middle class district differing substantially in critical elements from the remainder of the ghetto. The court also made it unmistakably clear that its ghetto area 'does not represent the entire ghettoized portion of Center Township but only the portion which is predominantly inhabited by Negroes and which was alleged in the complaint.' 305 F.Supp., at 1380—1381. Although census tract 563, a tract 'randomly selected to typify tracts * * * within the predominantly white ghetto portion of Center Township,' id., at 1374, was shown to have characteristics very similar to the tracts in the court's ghetto area except for the race of its inhabitants, the size and configuration of the white ghetto area were not revealed by the findings.
10 See Appendix to opinion, post, p. 164.
11 A striking but typical example of the importance of party affiliation and the 'winner take all' effect is shown by the 1964 House of Representatives election,
64
Democrats................ Votes Republicans........ Votes
Neff................ 151,822 Cox............... 144,336
Bridwell............ 151,756 Hadley............ 144,235
Murphy.............. 151,746 Baker............. 144,032
Dean................ 151,702 Burke............. 143,989
Creedon............. 151,573 Borst............. 143,972
Jones............... 151,481 Madinger.......... 143,918
DeWitt.............. 151,449 Clark............. 143,853
Logan............... 151,360 Bosma............. 143,810
Roland.............. 151,343 Brown............. 143,744
Walton.............. 151,282 Durnil............ 143,588
Huber............... 151,268 Gallagher......... 143,553
Costello............ 151,153 Cope.............. 143,475
Fruits.............. 151,079 Elder............. 143,436
Lloyd............... 150,862 Zerfas............ 143,413
Ricketts............ 150,797 Allen............. 143,369
65
Though nearly 300,000 Marion County voters cast nearly 4 1/2 million votes for the House, the high and low candidates within each party varied by only about a thousand votes. And, as these figures show, the Republicans lost every seat though they received 48.69% of the vote. Plaintiffs' Exhibit 10.
12
'The first requirement implicit in Fortson v. Dorsey (379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401) and Burns v. Richardson (384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376), that of an identifiable racial or political element within the multi-member district, is met by the Negro residents of the Center Township Ghetto. These Negro residents have interests in areas of substantive law such as housing regulations, sanitation, welfare programs (aid to families with dependent children, medical care, etc.), garnishment statutes, and unemployment compensation, among others, which diverge significantly from the interests of nonresidents of the Ghetto.' 305 F.Supp., at 1386.
13
Ibid. The District Court implicitly, if not expressly, rejected the testimony of defendants' witnesses, including a professor of political science, to the effect that Marion County's problems and all its voters would be better served by a delegation sitting and voting as a team and responsible to the district at large, than by a delegation elected from single-member districts and split into groups representing special interests.
14
Article 4, § 6, of the Indiana Constitution provides:
'A Senatorial or Representative district, where more than one county shall constitute a district, shall be composed of contiguous counties; and no county, for Senatorial apportionment, shall ever be divided.' (Emphasis added.)
15
See part VII, infra.
16
'In his second status, we find that plaintiff Walker is a voter of Indiana who resides outside Marion County. Applying the uniform district principle, discussed infra in the remedy section, we find that he probably has received less effective representation than Marion County voters. It has been shown that he votes for fewer legislators and, therefore, has fewer legislators to speak for him. He also, theoretically, casts fewer critical votes than Marion County voters, but we decline to so hold in the absence of sufficient evidence as to other factors such as bloc and party voting in Lake County. We hold that, in the absence of stronger evidence of dilution, his remedy is limited to the consideration which should be given to the uniform district principle in any subsequent reapportionment of the Indiana General Assembly.' 305 F.Supp., at 1390.
17
The court found a failure of proof on behalf of plaintiff Hotz, a resident of the white suburban belt, and on behalf of plaintiff Allan, an independent voter. Two other plaintiffs were entitled to no relief, plaintiff Chavis because he resided outside the Center Township ghetto and plaintiff Ramsey because he failed to show that he was a resident of that area. Only plaintiff Bryant, in addition to the qualified recognition given Walker, was found to have standing to sue and to be entitled to the relief prayed for.
18
See part VII, infra.
19
The Governor appealed here following this opinion. Since at that time no judgment had been entered and no injunction had been granted or denied, we do not have jurisdiction of that appeal and it is therefore dismissed. Gunn v. University Committee, 399 U.S. 383, 90 S.Ct. 2013, 26 L.Ed.2d 684 (1970).
20
The trial court's discussion of this subject may be found in 305 F.Supp., at 1391—1392.
21
The court also provided for the possibility that the legislature would fail to redistrict in time for the 1972 elections:
'The Indiana constitutional provision for staggering the terms of senators, so that one-half of the Senate terms expire every two years, is entirely proper and valid and would be mandatory in a legislatively devised redistricting plan.
'However, the plan adopted herein is provisional in nature and probably will be applicable for only the 1970 election and the subsequent 2-year period. This is true since the 1970 census will have been completed in the interim, and the legislature can very well redistrict itself prior to the 1972 elections. On the other hand, it is conceivable that the legislature may fail to redistrict before the 1972 election. In such event, all fifty senatorial seats shall be up for election every two years until such time as the legislature properly redistricts itself. If will then properly be the province of the legislature in redistricting to determine which senatorial districts shall elect senators to 4-year terms and which shall elect senators to 2-year terms to reinstate the staggering of terms.' 307 F.Supp., at 1367.
22
In Fortson, the Court reversed a three-judge District Court which found a violation of the Equal Protection Clause in that voters in single-member districts were allowed to 'select their own senator' but that voters in multi-member districts were not. The statutory scheme in Fortson provided for subdistricting within the county, so that each subdistrict was the residence of exactly one senator. However, each senator was elected by the county at large. The Court said, 'Each (sub) district's senator must be a resident of that (sub) district, but since his tenure depends upon the county-wide electorate he must be vigilant to serve the interests of all the people in the county, and not merely those of people in his home (sub) district; thus in fact he is the county's and not merely the (sub) district's senator.' 379 U.S., at 438, 85 S.Ct., at 501. The question of whether the scheme 'operate(d) to minimize or cancel out the voting
66
strength of racial or political elements of the voting population' was not presented.
67
In Burnette, we summarily affirmed a three-judge District Court ruling, Mann v. Davis, 245 F.Supp. 241 (E.D.Va. 1965), which upheld a multi-member district consisting of the city of Richmond, Va., and suburban Henrico County over the objections of both urban Negroes and suburban whites. Since the urban Negroes did not appeal here, the affirmance is of no weight as to them, but as to the suburbanites it represents an adherence to Fortson. Similarly, Harrison summarily affirmed a District Court reapportionment plan, Schaefer v. Thomson, 251 F.Supp. 450 (Wyo.1965), where multi-member districts in Wyoming were held necessary to keep county splitting at a minimum.
68
Burns vacated a three-judge court decree which required single-member districts except in extraordinary circumstances. 'the demonstration that a particular 'the demonstration that a particular multi-member scheme effects an invidious result must appear from evidence in the record.' 384 U.S., at 88, 86 S.Ct., at 1294.
69
In Kilgarlin, the Court affirmed, per curiam, a district court ruling
70
'insofar as it held that appellants had not proved their allegations that (the Texas House of Representatives reapportionment plan) was a racial or political gerrymander violating the Fourteenth Amendment, that it unconstitutionally deprived Negroes of their franchise and that because of its utilization of singlemember, multi-member and floterial districts it was an unconstitutional 'crazy quilt." 386 U.S., at 121, 87 S.Ct., at 821.
23
The mathematical backbone of this theory is as follows: In a population of n voters, where each voter has a choice between two alternatives (candidates), there are 2n possible voting combinations. For example, with a population of three voters, A, B, and C, and two candidates X and Y, there are eight combinations:
71
A B C
#1. X X X
#2. X X Y
#3. X Y X
#4. X Y Y
#5. Y X X
#6. Y X Y
#7. Y Y X
#8. Y Y Y
72
The theory hypothesizes that the true test of voting power is the ability to cast a tie-breaking, or 'critical' note. In the population of three voters as shown above, any voter can cast a critical vote in four situations; in the other four situations, the vote is not critical since it cannot change the outcome of the election. For example, C can cast a tie-breaking vote only in situations 3, 4, 5, and 6. The number of combinations in which a voter can cast a tie-breaking vote is 2.
73
(n-1)!
2.
n-1 n-1
! !
2 2
74
where n is the number of voters. Dividing this result (critical votes) by 22 (possible combinations), one arrives at that fraction of possible combinations in which a voter can cast a critical vote. This is the theory's measure of voting power. In District K with three voters, the fraction is 4/8, or 50%. In District L with nine voters, the fraction is 140/512, or 28%. Conventional wisdom would give District K one representative and District L three. But under the theory, a voter in District L is not 1/3 as powerful as the voter in District K, but more than half as powerful. District L deserves only two representatives, and by giving it three the State causes voters therein to be overrepresented. For a fuller explanation of this theory, see Banzhaf, Multi-Member Electoral Districts—Do They Violate the 'One Man, One Vote' Principle, 75 Yale L.J. 1309 (1966).
24
Tr. 39. Plaintiffs' brief in this Court recognizes the issue: 'The obvious question which the foregoing presentation gives rise to is that of whether the fact that a voter in a large multi-member district has a greater mathematical chance to cast a crucial vote has any practical significance.' Brief of Appellees (Plaintiffs) 14.
25
Cf. Banzhaf, Weighted Voting Doesn't Work: A Mathematical Analysis, 19 Rutgers L.Rev. 317 (1965).
26
It is apparent that the District Court declined to rule as a matter of law that a multi-member district was per se illegal as giving an invidious advantage to multimember district voters over voters in single-member districts or smaller multimember districts. See 305 F.Supp., at 1391—1392.
27
The so-called urban-rural division has been much talked about. Antagonistic bloc voting by the two camps may occur but it has perhaps been overemphasized. See White & Thomas, Urban and Rural Representation and State Legislative Apportionment, 17 W.Pol.Q. 724 (1964). Legislation dealing with uniquely urban problems may be routinely approved when urban delegations are in agreement but encounter insuperable difficulties when the delegations are split internally. See Kovach, Some Lessons of Reapportionment, 37 Reporter 26, 31 (Sept. 21, 1967).
28
See Appendix to opinion, post, p. 164.
29
It does not appear that the Marion County multi-member district always operated to exclude Negroes or the poor from the legislature. In the five general assemblies from 1960—1968, the county's Center Township ghetto had one senator and four representatives. The remainder of the township, which includes a white ghetto, elected one senator and eight representatives. Census tract 220, inhabited predominantly by Negroes but having different economic and social characteristics according to the trial court, elected one senator and five representatives. Ibid. Plaintiffs' evidence indicated that Marion County as a whole elected two Negro senators and seven representatives in those years. Plaintiffs' Exhibit 10.
30
Plaintiffs' Exhibit 10 purported to list the names and race of both parties' general assembly candidates from 1920 through 1968. For the 1960—1968 period which concerned the District Court, the exhibit purported to show that the Democratic Party slated one Negro representative in 1960; one in 1962; one senator and two representatives in 1964; three representatives in 1966; and one senator and two representatives in 1968. The Republican Party slated one Negro senator in 1960; two representatives in 1966; and three representatives in 1968. The racial designations on the exhibit, however, were excluded as hearsay.
75
The Brief of Appellees (Plaintiffs), at 23 n. 7, indicates that in the 1970 elections:
76
'(O)ne of the major political parties in Marion County held district 'mini-slating conventions' for purposes of determining its legislative candidates. All of the slated candidates were subsequently nominated in the primary. Black candidates filed in the slating
77
conventions in six of the fifteen Marion County 'districts' including the five that contain parts of the ghetto area. Only two black candidates were slated and nominated including one in the district that contains only a very small part of the ghetto area where the black candidate overwhelmingly defeated the white candidate in a head-on race notwithstanding a very substantial white voting majority. In a district that was almost entirely ghetto a white candidate won almost all of the vote in a head-on race against a black candidate who campaigned primarily on the basis of skin color. All five of the candidates in the 'ghetto districts,' however, avowed a substantial commitment to the substantive interests of black people and the poor.'
78
The record shows that plaintiff Chavis was slated by the Democratic Party and elected to the state senate in 1964. Exhibit 10. Also, plaintiffs Ramsey and Bryant were both slated by the same party as candidates for the House of Representatives in 1968 but were defeated in the general election. Ibid.; see also Tr. 131 (Ramsey), Tr. 133 (Bryant).
79
One of plaintiffs' witnesses, an attorney and political figure in the Republican Party, testified as follows:
80
'Q. In your experience, Mrs. Allen, aren't tickets put together by party organization to appeal (to) the various interest groups throughout Marion County?
81
'A. Yes.
82
'Q. Among these interest groups are economic groups, racial groups and others?
83
'A. Yes.
84
* * * * * *
85
'Q. I show you exhibit 5B that is in evidence, showing the location of the elected Republican representatives' homes at the time they filed in the party primary, does it to you somehow reflect an interest in making an appeal to each conceivable faction in the family, in the county area, each geographical interest?
86
'A. Yes, it does, if I can explain.
87
'Q. Yes, you may.
88
'A. Back in 1966, as I stated, we had a real primary fight and at the time we selected our candidates in the primary Republican Action Committee was not real, real strong in some geographical areas, and we felt that necessary to come up with a 15 man slate,
89
many of the people who lived in Center Township including myself did not feel ready to run for public office and therefore there was a hiatus in Center Township residents. However, many of the Washington Township residents, I believe at least two Washington Township residents had a number of family and historical ties in this Center Township Area, even though they did not live there and to the best of the Committee's ability they tried to achieve racial, geographical, economical and social diversity on the ticket. I can't say they were entirely successful, but they made a real good attempt and this is a result of their attempts.
90
'Q. And the real hard driving effort to put the Action Committees through did take place by the residents of Center Township; did it not?
91
'A. It was an over-all drive. Center Township, having the population it has, could not be ignored.' Tr. 145—148.
92
Plaintiffs' lawyer was at the time of the trial the Marion County Democratic chairman, Tr. 256; Plaintiff Chavis was a ward chairman and a longtime precinct committeeman, Tr. 77.
31
See Appendix to opinion, p. 164.
32
See ibid. In addition, the Republicans nominated and elected one senator (1960), and three representatives (1960, 1966, 1968) from census tract 220, and four representatives (three in 1962, one in 1966) from the nonghetto area of Center Township. Ibid.
Although plaintiffs asserted it, there was no finding by the District Court that Republican legislators residing in the ghetto were not representative of the area or had failed properly to represent ghetto interests in the general assembly.
33
The comparative merits of the two approaches to metropolitan representation has been much mooted and is still in contention. See the authorities cited in n. 38, infra, particularly the piece by Kovach and the series of studies by Collins, Dauer, David, Lacy, & Mauer. And, of course, witnesses in the trial court differed on this very issue. E.G., Tr. 209—214, 223—229, 235—238, 256—258. David & Eisenberg in their study, infra, n. 38, concluded that the case for rigid insistence on single-member districting has not been proved. They would prefer a system of small multi-member districts in metropolitan areas to either the larger multi-member district or the single-member district, thereby minimizing the acknowledged shortcomings of each. More generally, still in suspense is definitive judgment about the long-range impact of voting systems and malapportionment on legislative output. Sokolow, After Reapportionment: Numbers or Policies?, 19 W.Pol.Q.Supp. 21 (1966); T. Dye, Politics, Economics, and the Public 260—277 (1966); D. Lockard, The Politics of State and Local Government 290—293 (2d ed. 1969).
34
Interestingly enough, in Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964), challenge was to a single-member district plan with districts allegedly drawn on racial lines and designed to limit Negroes to voting for their own candidates in safe Negro districts. We rejected the challenge for failure of proof, but noted in passing that 'some of these voters * * * would prefer a more even distribution of minority groups among the four congressional districts, but others, like the intervenors in this case, would argue strenuously that the kind of districts for which appellants contended would be undesirable and, because based on race or place of origin, would themselves be unconstitutional.' 376 U.S., at 57—58, 84 S.Ct., at 606.
35
Plaintiffs' final arguments in the District Court asserted political as well as racial and economic discrimination in the workings of the Marion County district, in that the 'political minority,' whether Republicans or Democrats, is 'always shut out' when the opposing party wins. Tr. 254. See n. 11, supra.
36
For discussions of voting systems designed to achieve minority representation, see Dixon, infra n. 38, at 516—527; Black, The Theory of Elections in Single-member Constituencies, 15 Can. J. of Economics and Pol.Sci. 158 (1949); Silva, Relation of Representation and the Party System to the Number of Seats Apportioned to a Legislative District, 17 W.Pol.Q. 742, 744 et seq. (1964); S. Bedford, The Faces of Justice (1961); E. Lakeman & J. Lambert, Voting, in Democracies (1959); Blair, Cumulative Voting: An Effective Electoral Device in Illinois Politics, 45 Ill. Studies in the Social Sciences (1960).
37
As of November 1970, 46% of the upper houses and 62% of the lower houses in the States contained some multi-member districts. National Municipal League, Apportionment in the Nineteen Sixties (Rev.Nov.1970). In 1955, it was reported that the figures were 33% and 75%, respectively. Klain, A New Look at the Constituencies: The Need for a Recount and a Reappraisal, 49 Am.Pol.Sci.Rev. 1105 (1955). Though the overall effect of the reapportionment cases on this phenomenon is necessarily somewhat speculative, there is no doubt that some States switched to multi-member districts as a result of those decisions. Prior to the decisions, for example, Vermont's lower house was composed entirely of single-member districts. Id., at 1109. This resulted in the colorful situation of one representative for a town of 33,155 and another for a town of 38 in 1962. National Municipal League, apportionment in the Nineteen Sixties, pt. I(b). Reapportioned and redistricted in light of Reynolds, Vermont's lower house now has 36 multi-member and 36 single-member districts. Buckley v. Hoff, 243 F.Supp. 873 (D.C., Vt. 1965). Reapportionment has also been credited with abolishing Maryland's tradition of single-member districts in its senate. Burdette, Maryland Reapportionment, in Apportionment in the Nineteen Sixties, supra.
38
The relative merits of multi-member and single-member plans have been much debated and the general preference for single-
member districts has not gone unchallenged. For representative treatment of the subject see:
R. Dixon, Democratic Representation: Reapportionment in Law and Politics 461—463, 470—472, 476—490, 503—507 (1968); P. David & R. Eisenberg, State Legislative Redistricting: Major Issues in the Wake of Judicial Decision (1962); Barnett, Unitary-Multiple Election Districts, 39 Am.Pol.Sci.Rev. 65 (1945); Silva, Compared Values of the Singleand the Multi-member Legislative District, 17 W.Pol.Q. 504 (1964); Hamilton, Legislative Constituencies: Single-member Districts, Multi-member Districts, and Floterial Districts, 20 W.Pol.Q. 321 (1967) (includes a discussion of districting in Indiana); Silva, Relation of Representation and the Party System to the Number of Seats Apportioned to a Legislative District, 17 W.Pol.Q. 742 (1964); Lindquist, Socioeconomic Status and Political Participation, 17 W.Pol.Q. 608 (1964); Klain, A New Look at the Constituencies: The Need for a Recount and a Reappraisal, 49 Am.Pol.Sci.Rev. 1105 (1955); Kovach, Some Lessons of Reapportionment, 37 Reporter 26 (Sept. 21, 1967); and M. Collins, M. Dauer, P. David, A. Lacy, & G. Mauer, Evolving Issues and Patterns of State Legislative Redistricting in Large Metropolitan Areas (1966).
Interesting material with respect to the relative merits of single- and multi-member districts may be found in the congressional debates surrounding the passage in 1842 of the statute requiring representatives to be elected in single-member districts. See n. 39, infra. Though the racial considerations present here were, not surprisingly, absent in these pre-Civil War Amendments debates, the concern voiced by congressmen over the submergence of minorities, bloc voting, and party control shows, at least, that the plaintiffs' apprehensions are not entirely new ones. See, e.g., CongGlobe, 27th Cong., 2d Sess., 445—448, 452 453, 463—464.
39
In colonial days, '(m)ultiple districts were the rule, single ones the exception,' and '(f)or nearly a century and a half after the Declaration of Independence the American states elected by far the greater part of their lawmakers in multiple constituencies.' Klain, supra, n. 38, at 1112, 1113. Although a trend toward single-member districts began long ago, multiple districts are still much in evidence. See n. 37, supra. See also David & Eisenberg, supra, p. 38, at 20; Dixon, supra, n. 38, at 504.
In 1842, Congress by statute required single-member districts for
congressional elections. Act of June 25, 1842, § 2, 5 Stat. 491. The substance of the restriction was continued in Rev.Stat. § 23 and in apportionment legislation in this century until 1929. In 1941, Congress enacted a law that required that until a State is redistricted in a manner provided by law after decennial reapportionment of the House, representatives were to be elected from the districts prescribed by the law of the State, and that 'if any of them are elected from the State at large they shall continue to be so elected,' provided that if reapportionment of the House following a census shows that a State is entitled to an increase in the number of representatives, the additional representatives shall be elected at large until the State is redistricted, and if there is a decrease in the number of representatives and the number of districts in the State exceeds the number of representatives newly apportioned, all representatives shall be elected at large. Act of Nov. 15, 1941, 55 Stat. 762, amending § 22(c) of the Act of June 18, 1929, 46 Stat. 27, 2 U.S.C. § 2a(c). In 1967, Congress reinstated the single-member district requirement, 'except that a State which is entitled to more than one Representative and which has in all previous elections elected its Representatives at Large may elect its Representatives at Large to the Ninety-first Congress.' 81 Stat. 581, 2 U.S.C. § 2c, (1964 ed., Supp. V). Hawaii was the only State to take advantage of this exception. It has districted for the 92d Congress. Hawaii Rev.Stat. § 12—32.5 (Supp.1969).
Congress has not purported to exercise Fourteenth Amendment powers to regulate or prohibit multi-member districts in state elections.
40
The court was also impressed by the 1967 Indiana Board of Health Vital Statistics population estimates which showed a senate variance of 36.83% and a house variance of 37.30%. It did not base its order on these interim figures, however. See 307 F.Supp. 1362, 1366.
41
See also Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969), and Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969), in which the Court held that variances of 5.97% and 13.096%, respectively, were impermissible for congressional redistricting.
42
In redistricting the State, the District Court divided some counties into several districts, and defendants attack this as an unwarranted violation of Indiana Const., Art. 4, § 6, which says 'no county, for Senatorial apportionment, shall ever be divided.' Defendants concede that '(t)he error * * * is not the per se violation' of the constitution, but rather that the court drew its plan 'without having meaningfully considered' the dictates of the constitution. Brief for Appellant (Defendant) 49. But the contrary appears to us to be true. The court announced that it 'would strive to preserve the integrity of county and township lines' wherever possible, 307 F.Supp., at 1364, though it ultimately concluded that the 'difficulty of devising * * * compact and contiguous * * * districts within that framework (of mathematical equality) has in large part precluded preservation of county lines.' Id., at 1366. We note that none of the statewide redistricting plans that were submitted for the court's consideration, including those of the house and senate minority leaders and the chairman of the senate majority caucus committee, followed the state constitution in this respect. R. 57—137, 198 228.
43
In any event, the Court was careful to note that 'we do not mean to intimate that more frequent reapportionment would not be constitutionally permissible or practicably desirable.' 377 U.S., at 584, 84 S.Ct., at 1393.
1
2 3 4 5 6 7 8
1960-69
b Avg. Pop.
Residence of as Percentage
Legislators 1960-69 of Marion Senators Elected
Elected (By Average County
Marion County Population Average Pop. 60-
Area) 1960 60 62 64 66 68 68
Washington Twp.
excluding
Tract 220.......... 103,615 13.98 3 1 2 1 3 10
Census Tract 220...... 4,866 0.66 1 0 0 0 0 1
Center Twp. excluding
Ghetto............. 172,876 23.32 0 0 1 0 0 1
Center Twp. Ghetto.. 132,000 17.81 0 0 1 0 0 1
Pike Twp............. 11,031 1.49 0 0 0 0 0 0
Wayne Twp........... 105,961 14.30 0 0 0 0 0 0
Decatur Twp.......... 13,755 1.86 0 0 0 0 0 0
Perry Twp............ 59,778 8.07 1 0 1 0 2 4
Franklin Twp.......... 8,929 1.21 0 0 0 0 0 0
Lawrence Twp......... 49,553 6.69 0 0 1 0 1 2
Warren Twp........... 78,872 10.64 0 0 0 1 1 2
Marion County....... 741,234 (100%) 5 1 6 2 7 21
-----------
..............TABLE CONTINUED
9 10 11 12 13 14 15 16
Senators Representatives
Elected Representatives
as Percent Elected Elected as
of Percent of
1960-68 60- 1960-68
Total 60 62 64 66 68 68 Total
47.52................. 6 2 5 5 5 23 34.33
4.75................... 1 0 2 1 1 5 7.46
4.75................... 0 3 4 1 0 8 11.94
4.75................... 0 1 1 0 2 4 5.97
0...................... 0 0 0 0 1 1 1.49
0...................... 1 2 0 2 2 7 10.45
0...................... 0 0 0 1 1 2 2.99
19.01.................. 0 0 1 1 1 3 4.48
0...................... 0 0 0 0 0 0 0
9.51................... 2 2 0 3 2 9 13.44
9.51................... 1 1 2 1 0 5 7.46
(100%).................. 11111515567 (100%)
1
Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399; Gordon v. Lance, 403 U.S. 1, 91 S.Ct. 1889, 26 L.Ed.2d 273.
2
The Court, though stating that it does 'not quarrel with plaintiffs' mathematics,' nevertheless implies that it may be ignored because 'the position remains a theoretical one * * * and does 'not take into account any political or other factors which might affect the actual voting power of the residents, which might include party affiliation, race, previous voting characteristics or any other factors which go into the entire political voting situation." Ante, at 145, 146. Precisely the same criticism applies, with even greater force, to the 'one man, one vote' opinions of this Court. The only relevant difference between the elementary arithmetic on which the Court relies and the elementary probability theory on which Professor Banzhaf relies is that calculations in the latter field cannot be done on one's fingers.
3
More precisely, the result follows if the second of Professor Banzhaf's assumptions is altered so that the prohability of each voter's selecting candidate A over candidate B is 50.5% rather than 50%.
4
The text assumes that each of the remaining 275,000 voters is equally likely to vote for A or for B.
5
'There is something fascinating about science. One gets such wholesale returns of conjecture out of such a trifling investment of fact.' Mark Twain, Life on the Mississippi 109 (Harper & Row., 1965).
1
Wallace, Legislative Apportionment In Indiana: A Case History, 42 Ind.L.J. 6, 30 (1966).
2
The District Court also found independent of the new districts that there were impermissible population variances in the Indiana apportionment. The ratio between the largest and smallest Senate district was 1.327 to 1. For the House it was 1.279 to 1. Under the plan promulgated by the District Court these were reduced to 1.017 to 1 and 1.020 to 1 respectively.
3
See Tyler & Wells, The New Gerrymander Threat, AFL—CIO American Federationist 1 (Fed.1971).
4
The three-judge court 'emphasized that the black plaintiffs were members of an identifiable interest group whose voting strength had been minimized by the multi-member districting scheme. They were not only unable to elect a legislator who was attuned to their interests, but were also saddled with lawmakers who reflected white suburban ideology and were controlled by political leaders.' Note, Chavis v. Whitcomb: Apportionment, Gerrymandering, and Black Voting Rights, 24 Rutgers L.Rev. 521, 533 (1970).
| 12
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403 U.S. 182
91 S.Ct. 1904
29 L.Ed.2d 399
Samuel J. ABATE, etc., et al., Petitioners,v.Paul F. MUNDT et al.
No. 71.
Argued Nov. 19, 1970.
Decided June 7, 1971.
Syllabus
For more than a century the Rockland County board of supervisors consisted of the supervisors of the county's five towns, resulting in extensive functional interrelationships and intergovernmental coordination between county and towns. Severe malapportionment due to population growth led to courtordered reapportionment. The proposed plan, challenged by petitioners, provides for a county legislature of 18 members chosen from five districts, corresponding with the towns, each district being assigned legislators in the proportion of its population to that of the smallest town. The plan produces a total deviation from equality of 11.9%. The Court of Appeals of New York upheld the plan. Held: In light of the long tradition of overlapping functions and dual personnel in the Rockland County government and the fact that the plan does not contain any built-in bias favoring particular political interests or geographic areas, the plan is not violative of the Equal Protection Clause. Pp. 185—187.
25 N.Y.2d 309, 305 N.Y.S.2d 465, 253 N.E.2d 189, affirmed.
Frank P. Barone, Suffern, N.Y., for petitioner Samuel J. Abate.
Doris F. Ulman, Spring Valley, N.Y., for petitioners June Molof and others.
Paul H. Rivet, New City, N.Y., for petitioners Cornelius T. O'Sullivan and others.
J. Martin Cornell, New City, N.Y., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
In this case, petitioners challenge the constitutionality of a reapportionment plan proposed in response to both federal and state court findings of malapportionment in Rockland County, New York. The Court of Appeals of the State of New York upheld the plan. We affirm.
2
For more than 100 years, Rockland County was governed by a board of supervisors consisting of the supervisors of each of the county's five constituent towns. This county legislature was not separately elected; rather, its members held their county offices by virtue of their election as town supervisors—a pattern that typified New York county government. The result has been a local structure in which overlapping public services are provided by the towns and their county working in close cooperation. For example, in Rockland County the towns adopt their own budgets and submit them to the county which levies taxes. These taxes are based on real property assessments established by the towns but equalized by the county board. Similarly, public services such as waste disposal and snow removal are provided through cooperative efforts among the municipalities. There is no indication that these joint efforts have declined in importance; in fact, respondents strenuously urge that the county's rapidly expanding population has amplified the need for town and county coordination in the future.
3
The county's increased population also produced severe malapportionment—so severe that, in 1966, a federal district court required that the county board submit a reapportionment plan to the Rockland County voters, Lodico v. Board of Supervisors, 256 F.Supp. 440 (SDNY). Pursuant to that order, three different plans were devised and submitted to the electorate; but each was rejected at the polls. The present action was brought in 1968 to compel the board to reapportion. After its initial proposal was rejected by the New York courts, the board submitted the plan that is the subject of this decision.
4
The challenged plan, based on 1969 population figures provides for a county legislature composed of 18 members chosen from five legislative districts. These districts exactly correspond to the county's five constituent towns. Each district is assigned its legislators according to the district's population in relation to the population of the smallest town, Stony Point. Stony Point has a population of 12,114 and is assigned one representative in the county legislature. The number of representatives granted the other districts is determined by dividing the population of each by the population of the smallest town. Fractional results of the computation are rounded to the nearest integer, and this need to round off 'fractional representatives' produces some variations among districts in terms of population per legislator. Under 1969 population figures, the Orangetown district is the most 'underrepresented' (7.1%); while Clarkstown is the most 'overrepresented' (4.8%). Thus, the plan presently produces a total deviation from population equality of 11.9%.1 Petitioners attack these deviations as unconstitutional.2
5
It is well established that electoral apportionment must be based on the general principle of population equality and that this principle applies to state and local elections, Avery v. Midland County, 390 U.S. 474, 481, 88 S.Ct. 1114, 1118, 20 L.Ed.2d 45 (1968). 'Mathematical exactness or precision is hardly a workable constitutional requirement,' Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1389, 1390, 12 L.Ed.2d 506 (1964), but deviations from population equality must be justified by legitimate state considerations, Swann v. Adams, 385 U.S. 440, 444, 87 S.Ct. 569, 572, 17 L.Ed.2d 501 (1967). Because voting rights require highly sensitive safeguards, this Court has carefully scrutinized state interests offered to justify deviations from population equality.
6
In assessing the constitutionality of various apportionment plans, we have observed that viable local governments may need considerable flexibility in municipal arrangements if they are to meet changing societal needs, Sailors v. Board of Education of Kent County, 387 U.S. 105, 110—111, 87 S.Ct. 1549, 1553—1554, 18 L.Ed.2d 650 (1967), and that a desire to preserve the integrity of political subdivisions may justify an apportionment plan which departs from numerical equality. Reynolds v. Sims, supra, 377 U.S., at 578, 84 S.Ct., at 1390. These observations, along with the facts that local legislative bodies frequently have fewer representatives than do their state and national counterparts and that some local legislative districts may have a much smaller population than do congressional and state legislative districts, lend support to the argument that slightly greater percentage deviations may be tolerable for local government apportionment schemes, cf. ibid. Of course, this Court has never suggested that certain geographic areas or political interests are entitled to disproportionate representation. Rather, our statements have reflected the view that the particular circumstances and needs of a local community as a whole may sometimes justify departures from strict equality.
7
Accordingly, we have underscored the danger of apportionment structures that contain a built-in bias tending to favor particular geographic areas or political interests or which necessarily will tend to favor, for example, less populous districts over their more highly populated neighbors, see Hadley v. Junior College District, 397 U.S. 50, 57—58, 90 S.Ct. 791, 795 796, 25 L.Ed.2d 45 (1970). In this case, we have no such indigenous bias; there is no suggestion that the Rockland County plan was designed to favor particular groups. It is true that the existence of any deviations from strict equality means that certain districts are advantaged at that point in time; but, under this plan, changing demographic patterns may shift electoral advantages from one town to another.3
8
The mere absence of a built-in bias is not, of course, justification for a departure from population equality. In this case, however, Rockland County defends its plan by asserting the long history of, and perceived need for close cooperation between the county and its constituent towns. The need for intergovernmental coordination is often greatest at the local level, and we have already commented on the extensive functional interrelationships between Rockland County and its towns. But because almost all governmental entities are interrelated in numerous ways, we would be hesitant to accept this justification by itself. To us, therefore, it is significant that Rockland County has long recognized the advantages of having the same individuals occupy the governing positions of both the county and its towns. For over 100 years, the five town supervisors were the only members of the county board, a system that necessarily fostered extensive interdependence between the towns and their county government. When population shifts required that some towns receive a greater portion of seats on the county legislature, Rockland County responded with a plan that substantially remedies the malapportionment and that, by preserving an exact correspondence between each town and one of the county legislative districts, continues to encourage town supervisors to serve on the county board.
9
We emphasize that our decision is based on the long tradition of overlapping functions and dual personnel in Rockland County government and on the fact that the plan before us does not contain a built-in bias tending to favor particular political interests or geographic areas. And nothing we say today should be taken to imply that even these factors could justify substantially greater deviations from population equality. But we are not prepared to hold that the Rockland County reapportionment plan violates the Constitution, and, therefore, we affirm.
10
Affirmed.
11
Mr. Justice HARLAN concurs in the result for the reasons stated in his separate opinion in Whitcomb v. Chavis, 403 U.S. 124, 165, 91 S.Ct. 1858, 1881, 29 L.Ed.2d 363.
12
Mr. Justice STEWART concurs in the judgment.
13
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS joins dissenting.
14
The Court today reaffirms all of the principles of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and its progeny but refuses, for a combination of reasons unpersuasive to me, to apply those principles to this apportionment scheme. I believe that our recent decisions in Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968); Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969), and Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969), require reversal and I therefore dissent.
15
The Court holds that 'a desire to preserve the integrity of political subdivisions may justify an apportionment plan which departs from numerical equality. Reynolds v. Sims, supra, 377 U.S., at 578, 84 S.Ct., at 1390.' Ante, at 185. The Court's reliance on Reynolds is misplaced. We said there that 'it may be feasible to use political subdivision lines to a greater extent in establishing state legislative districts than in congressional districting.' 377 U.S., at 578, 84 S.Ct., at 1390. But we warned that '(t)o do so would be constitutionally valid, so long as the resulting apportionment was one based substantially on population and the equal-population principle was not diluted in any significant way.' Ibid. (emphasis added). Moreover, the Court did not at that point in time 'deem it expedient * * * to attempt to spell out any precise constitutional tests.' We have done so since.
16
In Kirkpatrick v. Preisler, supra, we explained that because '(t)oleration of even small deviations detracts from' the constitutional command of 'equal representation for equal numbers of people,' only those 'limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown' are permissible. 394 U.S., at 531, 89 S.Ct., at 1229. '(T)he State must justify each variance, no matter how small.' Ibid. On the record presented here it is clear that such a good-faith effort has not been made. Nor can it be said that sufficient justification has been demonstrated for an 11.9% deviation from voting equality.
17
The plan approved here allegedly represents as close to mathematical exactness as is possible without changing existing political boundaries or using weighted or fractional votes. But a plan devised under these constraints is not devised in the good-faith effort that the Constitution requires. In Wells v. Rockefeller, supra, we struck down a similar plan. We held that an attempt to maintain existing county lines was insufficient justification for a 12.1% variance. In explanation we stated that an attempt 'to keep regions with distinct interests intact' was insufficient because to accept such a justification 'would permit groups of districts with defined interest orientations to be over-represented at the expense of districts with different interest orientations.' 394 U.S., at 546, 89 S.Ct., at 1237. That is precisely what we are dealing with here. The attempt to maintain existing town lines has resulted in a variance from equality of 11.9%. I cannot believe that a 0.2% differential is the determining factor in approving this apportionment scheme.
18
The Court explains that it is, rather, a combination of factors that dictates this result, and that among them is the fact that New York has a long history of maintaining the integrity of existing counties. It is not clear to me why such a history, no matter how protracted, should alter the constitutional command to make a good-faith effort to achieve equality of voting power as near to mathematical exactness as is possible.
19
Today's result cannot be excused by asserting that local governments are somehow less important than national and state governments. We have already fully applied the principle of one man, one vote to local polities because 'the States universally leave much policy and decisionmaking to their governmental subdivisions. * * * In a word, institutions of local government have always been a major aspect of our system, and their responsible and responsive operation is today of increasing importance to the quality of life of more and more of our citizens.' Avery v. Midland County, 390 U.S., at 481, 88 S.Ct., at 1118.
20
It is clear to me that none of the factors relied upon by the Court today can, singly or in combination justify this variation. Obviously no other local apportionment scheme can possibly present the same combination of factors relied on by the Court today. In that sense this decision can have little or no precedential value. Nevertheless, I cannot help but regret even this small departure from the basic constitutional concept of one man, one vote.
1
All of the population figures and percentage deviations are:
Number of Percentage**
District Population* Representatives Deviations
Stony Point 12,114 1 0.3
Haverstraw 23,676 2 2.5
Orangetown 52,080 4 -7.1
Clarkstown 57,883 5 4.8
Ramapo 73,051 6 -0.2* 1969 Population data.** (-) refers to "underrepresented."
2
Petitioners also attack the plan's use of multi-member districts. However, they have not shown that these multi-member districts, by themselves, operate to impair the voting strength of particular racial or political elements of the Rockland County voting population, see Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376 (1966).
3
Naturally, we express no opinion on the contention that, in future years, the Rockland County plan may produce substantially greater deviations than presently exist. Such questions can be answered if and when they arise.
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403 U.S. 207
91 S.Ct. 1772
29 L.Ed.2d 418
Stella CONNELL, Appellant,v.James M. HIGGINBOTHAM et al.
No. 79.
Argued Nov. 19, 1970.
Decided June 7, 1971.
Sanford Jay Rosen, Austin, Tex., for appellant.
Stephen Marc Slepin, Tallahassee, Fla., for appellees.
PER CURIAM.
1
This is an appeal from an action commenced in the United States District Court for the Middle District of Florida challenging the constitutionality of §§ 876.05—879.10 of Fla.Stat. (1965), and the various loyalty oaths upon which appellant's employment as a school teacher was conditioned. The three-judge U.S. District Court declared three of the five clauses contained in the oaths to be unconstitutional,* and enjoined the State from conditioning employment on the taking of an oath including the language declared unconstitutional. The appeal is from that portion of the District Court decision, 305 F.Supp. 445, which upheld the remaining two clauses in the oath: I do hereby solemnly swear or affirm (1) 'that I will support the Constitution of the United States and of the State of Florida'; and (2) 'that I do not believe in the overthrow of the Government of the United States or of the State of Florida be force or violence.'
2
On January 16, 1969, appellant made application for a teaching position with the Orange County school system. She was interviewed by the principal of Callahan Elementary School, and on January 27, 1969, appellant was employed as a substitute classroom teacher in the fourth grade of that school. Appellant was dismissed from her teaching position on March 18, 1969, for refusing to sign the loyalty oath required of all Florida public employees, Fla.Stat. § 876.05.
3
The first section of the oath upheld by the District Court, requiring all applicants to pledge to support the Constitution of the United States and of the State of Florida, demands no more of Florida public employees than is required of all state and federal officers. U.S. Const., Art. VI, cl. 3. The validity of this section of the oath would appear settled. See Knight v. Board of Regents, D.C., 269 F.Supp. 339 (1967), aff'd per curiam, 390 U.S. 36, 88 S.Ct. 816, 19 L.Ed.2d 812 (1968); Hosack v. Smiley, D.C., 276 F.Supp. 876 (1967), aff'd per curiam, 390 U.S. 744, 88 S.Ct. 1442, 20 L.Ed.2d 275 (1968); Ohlson v. Phillips, D.C., 304 F.Supp. 1152 (1969), aff'd per curiam, 397 U.S. 317, 90 S.Ct. 1124, 25 L.Ed.2d 337 (1970).
4
The second portion of the oath, approved by the District Court, falls within the ambit of decisions of this Court proscribing summary dismissal from public employment without hearing or inquiry required by due process. Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956). Cf. Nostrand v. Little, 362 U.S. 474, 80 S.Ct. 840, 4 L.Ed.2d 892 (1960); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958). That portion of the oath, therefore, cannot stand.
5
Affirmed in part, and reversed in part.
6
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, concurring in the result.
7
I agree that Florida may require state employees to affirm that they 'will support the Constitution of the United States and of the State of Florida.' Such a forward-looking, promissory oath of constitutional support does not in my view offend the First Amendment's command that the grant or denial of governmental benefits cannot be made to turn on the political viewpoints or affiliations of a would-be beneficiary. I also agree that Florida may not base its employment decisions, as to state teachers or any other hiring category, on an applicant's willingness vel non to affirm 'that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence.'
8
However, in striking down the latter oath, the Court has left the clear implication that its objection runs, not against Florida's determination to exclude those who 'believe in the overthrow,' but only against the State's decision to regard unwillingness to take the oath as conclusive, irrebuttable proof of the proscribed belief. Due process may rightly be invoked to condemn Florida's mechanistic approach to the question of proof. But in my view it simply does not matter what kind of evidence a State can muster to show that a job applicant 'believe(s) in the overthrow.' For state action injurious to an individual cannot be justified on account of the nature of the individual's beliefs, whether he 'believe(s) in the overthrow' or has any other sort of belief. 'If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion * * *.' West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943).
9
I would strike down Florida's 'overthrow' oath plainly and simply on the ground that belief as such cannot be the predicate of governmental action.
10
Mr. Justice STEWART, concurring in part and dissenting in part.
11
The Court upholds as clearly constitutional the first clause of the oath as it comes to us from the three-judge District Court: 'I will support the Constitution of the United States and of the State of Florida * * *.' With this ruling I fully agree.
12
As to the second contested clause of the oath, 'I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence,' I would remand to the District Court to give the parties an opportunity to get from the state courts an authoritative construction of the meaning of the clause. If the clause embraces the teacher's philosophical or political beliefs, I think it is constitutionally infirm. Baird v. State Bar of Arizona, 401 U.S. 1, 9—10, 91 S.Ct. 702, 707—708, 27 L.Ed.2d 639 (concurring opinion); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628; Cantwell v. Connecticut, 310 U.S. 29, 303—304, 60 S.Ct. 900, 903, 84 L.Ed. 1213. If, on the other hand, the clause does no more than test whether the first clause of the oath can be taken 'without mental reservation or purpose of evasion,' I think it is constitutionally valid. Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 163—164, 91 S.Ct. 720, 727, 27 L.Ed.2d 749. The Florida courts should, therefore, be given an opportunity to construe the clause before the federal courts pass on its constitutionality. See Fornaris v. Ridge Tool Co., 400 U.S. 41, 43—44, 91 S.Ct. 156, 157—158, 27 L.Ed.2d 174; Reetz v. Bozanich, 397 U.S. 82, 85—87, 90 S.Ct. 788, 789—790, 25 L.Ed.2d 68; Railroad Comm'n v. Pullman Co., 312 U.S. 496, 498—501, 61 S.Ct. 643, 644—645, 85 L.Ed. 971.
13
The Supreme Court of Florida has explicitly held that the various clauses of the oath are severable. Cramp v. Board of Public Instruction, 137 So.2d 828, 830—831.
*
The clauses declared unconstitutional by the court below required the employee to swear: (a) 'that I am not a member of the Communist Party'; (b) 'that I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party'; and (c) 'that I am not a member of any organization or party which believes in or teaches, directly or indirectly, the overthrow of the Government of the United States or of Florida by force or violence.'
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403 U.S. 1
91 S.Ct. 1889
29 L.Ed.2d 273
A. T. GORDON et al., Petitioners,v.Granville H. LANCE et al.
No. 96.
Argued Jan. 18, 1971.
Decided June 7, 1971.
Syllabus
West Virginia's constitutional and statutory requirement that political subdivisions may not incur bonded indebtedness or increase tax rates beyond those established by the State Constitution without the approval of 60% of the voters in a referendum election does not discriminate against or authorize discrimination against any identifiable class and does not violate the Equal Protection Clause or any other provision of the United States Constitution. Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 and Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647, distinguished. Pp. 4—8.
153 W.Va. 559, 170 S.E.2d 783, reversed.
George M. Scott, Minneapolis, Minn., for petitioners.
Charles C. Wise, Jr., Charleston, W. Va., for respondents.
[Amicus Curiae Information from page 2 intentionally omitted]
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to review a challenge to a 60% vote requirement to incur public debt as violative of the Fourteenth Amendment.
2
The Constitution of West Virginia and certain West Virginia statutes provide that political subdivisions of the State may not incur bonded indebtedness or increase tax rates beyond those established by the Constitution without the approval of 60% of the voters in a referendum election.
3
On April 29, 1968, the Board of Education of Roane County, West Virginia, submitted to the voters of Roane County a proposal calling for the issuance of general obligation bonds in the amount of $1,830,000 for the purpose of constructing new school buildings and improving existing educational facilities. At the same election, by separate ballot, the voters were asked to authorize the Board of Education to levy additional taxes to support current expenditures and capital improvements. Of the total votes cast, 51.55% favored the bond issues and 51.51% favored the tax levy. Having failed to obtain the requisite 60% affirmative vote, the proposals were declared defeated.
4
Following the election, respondents appeared before the Board of Education on behalf of themselves and other persons who had voted in favor of the proposals and demanded that the Board authorize the bonds and the additional taxes. The Board refused.
5
Respondents then brought this action, seeking a declaratory judgment that the 60% requirements were unconstitutional as violative of the Fourteenth Amendment. In their complaint they alleged that the Roane County schools had been basically unimproved since 1946 and fell far below the state average, both in classroom size and facilities. They further alleged that four similar proposals had been previously defeated, although each had received majorities of affirmative votes ranging from 52.51% to 55.84%. The West Virginia trial court dismissed the complaint. On appeal, the West Virginia Supreme Court of Appeals reversed, holding that the state constitutional and statutory 60% requirements violated the Equal Protection Clause of the Fourteenth Amendment. 153 W.Va. 559, 170 S.E.2d 783 (1969). We granted certiorari, 397 U.S. 1020, 90 S.Ct. 1264, 25 L.Ed.2d 530 (1970), and for the reasons set forth below, we reverse.
6
The court below relied heavily on two of our holdings dealing with limitations on the right to vote and dilution of voting power. The first was Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), which held that Georgia's county-unit system violated the Equal Protection Clause, because the votes of primary electors in one county were accorded less weight than the votes of electors in other counties. The second was Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), in which we held impermissible the limitation to 'property taxpayers' of the right to vote in a revenue bond referendum. From these cases the state court concluded that West Virginia's requirement was constitutionally defective, because the votes of these who favored the issuance of the bonds had a proportionately smaller impact on the outcome of the election than the votes of those who opposed issuance of the bonds.
7
We conclude that the West Virginia court's reliance on the Gray and Cipriano cases was misplaced. The defect this Court found in those cases lay in the denial or dilution of voting power because of group characteristics—geographic location and property ownership—that bore no valid relation to the interest of those groups in the subject matter of the election; moreover, the dilution or denial was imposed irrespective of how members of those groups actually voted.1
8
Thus in Gray, supra, 372 U.S., at 381 n. 12, 83 S.Ct., at 809, we hold that the county-unit system would have been defective even if unit votes were allocated strictly in proportion to population. We noted that if a candidate received 60% of the votes cast in a particular county he would receive that county's entire unit vote, the 40% cast for the other candidates being discarded. The defect, however, continued to be geographic discrimination. Votes for the losing candidates were discarded solely because of the county where the votes were cast. Indeed, votes for the winning candidate in a county were likewise devalued, because all marginal votes for him would be discarded and would have no impact on the statewide total.
9
Cipriano was no more than a reassertion of the principle, consistently recognized, that an individual may not be denied access to the ballot because of some extraneous condition, such as race, e.g., Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); wealth, e.g., Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); tax status, e.g., Kramer v. Union Free School Dist., 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); or military status, e.g., Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965).
10
Unlike the restrictions in our previous cases, the West Virginia Constitution singles out no 'discrete and insular minority' for special treatment. The three-fifths requirement applied equally to all bond issues for any purpose, whether for schools, sewers, or highways. We are not, therefore, presented with a case like Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969), in which fair housing legislation alone was subject to an automatic referendum requirement.
11
The class single out in Hunter was clear—'those who would benefit from laws barring racial, religious, or ancestral discriminations,' supra, at 391, 89 S.Ct., at 560. In contrast we can discern no independently identifiable group or category that favors bonded indebtedness over other forms of financing. Consequently to sector of the population may be said to be 'fenced out' from the franchise because of the way they will vote. Cf. Carrington v. Rash, supra, 380 U.S., at 94, 85 S.Ct., at 779.
12
Although West Virginia has not denied any group access to the ballot, it has indeed made it more difficult for some kinds of governmental actions to be taken. Certainly any departure from strict majority rule gives disproportionate power to the minority. But there is nothing in the language of the Constitution, our history, or our cases that requires that a majority always prevail on every issue. On the contrary, while we have recognized that state officials are normally chosen by a vote of the majority of the electorate, we have found no constitutional barrier to the selection of a Governor by a state legislature, after no candidate received a majority of the popular vote. Fortson v. Morris, 385 U.S. 231, 87 S.Ct. 446, 17 L.Ed.2d 330 (1966).
13
The Federal Constitution itself provides that a simple majority vote is insufficient on some issues; the provisions on impeachment and ratification of treaties are but two example. Moreover, the Bill of Rights removes entire areas of legislation from the concept of majoritarian supremacy. The constitutions of many States prohibit or severely limit the power of the legislature to levy new taxes or to create or increase bonded indebtedness,2 thereby insulating entire areas from majority control. Whether these matters of finance and taxation are to be considered as less 'important' than matters of treaties, foreign policy or impeachment of public officers is more properly left to the determination by the States and the people than to the courts operating under the broad mandate of the Fourteenth Amendment. It must be remembered that in voting to issue bonds voters are committing, in part, the credit of infants and of generations yet unborn, and some restriction on such commitment is not an unreasonable demand. That the bond issue may have the desirable objective of providing better education for future generations goes to the wisdom of an indebtedness limitation: it does not alter the basic fact that the balancing of interests is one for the State to resolve.
14
Wisely or not, the people of the State of West Virginia have long since resolved to remove from a simple majority vote the choice on certain decisions as to what indebtedness may be incurred and what taxes their children will bear.
15
We conclude that so long as such provisions do not discriminate against or authorize discrimination against any identifiable class they do not violate the Equal Protection Clause.3 We see no meaningful distinction between such absolute provisions on debt, changeable only by constitutional amendment, and provisions that legislative decisions on the same issues require more than a majority vote in the legislature. On the contrary, these latter provisions may, in practice, be less burdensome than the amendment process.4 Moreover, the same considerations apply when the ultimate power, rather than being delegated to the legislature, remains with the people, by way of a referendum. Indeed, we see no constitutional distinction between the 60% requirement in the present case and a state requirement that a given issue be approved by a majority of all registered voters.5 Cf. Clay v. Thornton, 253 S.C. 209, 169 S.E.2d 617 (1969), appeal dismissed sub nom. Turner v. Clay, 397 U.S. 39, 90 S.Ct. 814, 25 L.Ed.2d 40 (1970).
16
That West Virginia has adopted a rule of decision, applicable to all bond referenda, by which the strong consensus of three-fifths is required before indebtedness is authorized, does not violate the Equal Protection Clause or any other provision of the Constitution.6
17
Reversed.
18
Mr. Justice HARLAN concurs in the result for the reasons stated in his separate opinion in Whitcomb v. Chavis, 403 U.S. 124, 165, 91 S.Ct. 1858, 1881, 29 L.Ed.2d 363.
19
Mr. Justice BRENNAN and Mr. Justice MARSHALL would affirm for the reasons expressed in the opinion of the West Virginia Supreme Court of Appeals, 153 W.Va. 559, 170 S.E.2d 783 (1969).
1
While Cipriano involved a denial of the vote, a percentage reduction of an individual's voting power in proportion to the amount of property he owned would be similarly defective. See Stewart v. Parish School Board, 310 F.Supp. 1172 (ED La.), aff'd, 400 U.S. 884, 91 S.Ct. 136, 27 L.Ed.2d 129 (1970).
2
E.g., Indiana Constitution, Art. 10, § 5; Ohio Constitution, Art. 8, § 3; Texas Constitution, Art. 3, § 49; Wisconsin Constitution, Art. 8, § 4.
3
Compare Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967).
4
Some 14 States require an amendment to be approved by two sessions of the legislature, before submission to the people. West Virginia's Constitution, Art. 14, § 2, provides for approval by two-thirds of a single legislature and a majority of the voters.
5
In practice, the latter requirement would be far more burdensome than a 60% requirement. There were 8,913 registered voters in Roane County in 1968, of whom 5,600 voted in the referendum at issue. If a majority of all eligible voters had been required, approval would have required the affirmative votes of over 79% of those voting. See State of West Virginia, Official Returns of 1970 Primary Election (including the 1968 registration figures).
6
We intimate no view on the constitutionality of a provision requiring unanimity or giving a veto power to a very small group. Nor do we decide whether a State may, consistently with the Constitution, require extraordinary majorities for the election of public officers.
| 12
|
403 U.S. 212
91 S.Ct. 1778
29 L.Ed.2d 423
Robert JOHNSON, Petitioner,v.State of MISSISSIPPI.
No. 5485.
Argued April 21, 1971.
Decided June 7, 1971.
Stephen W. Porter, Washington, D.C., for petitioner.
G. Garland Lyell, Jr., Jackson, Miss., for respondent.
PER CURIAM.
1
Petitioner, a defendant in a criminal proceeding in the Circuit Court of Grenada County, Mississippi, was summarily convicted of criminal contempt by Judge Marshall Perry of that court.
2
The alleged contempt occurred on January 23, 1967. It occurred after Judge Perry directed the bailiffs and deputies to keep all people entering the courtroom from walking between the space reserved for jurors and county officers and the judge, while jurors were being called. A deputy attempted to route petitioner around the area in question whereupon, according to the orders adjudging petitioner in contempt, he said:
3
'What the Hell do you mean go around.
4
'Said Johnson, defendant, then continued to stand and look around over the room, disrupting the court proceedings.'
5
Judge Perry, however, did not take instant action on the alleged contempt but only had petitioner removed from the courtroom. The next day, January 24, he ordered that process issue against petitioner directing him to appear February 1, 1967, an action he later rescinded. On January 27, 1967, petitioner, an active civil rights worker, asked through his attorney that Judge Perry recuse himself, asserting:
6
'a. That Judge Perry is personally prejudiced against the defendant and against the civil rights organizations he represents.
7
'b. That Judge Perry is personally prejudiced against the lawyers' organization defending Mr. Johnson, namely the Lawyers' Committee For Civil Rights Under Law.'
8
The motion was supported by two affidavits of lawyers that Judge Perry, through charges made to grand juries in his courtroom, revealed deep prejudice against civil rights workers and civil rights lawyers.
9
No hearing was ever granted on that motion.
10
When petitioner was removed from the courtroom on January 23, 1967, his lawyer, one Rowe, objected to Judge Perry's action. Judge Perry ordered Rowe arrested and charged with criminal contempt. On January 31, 1967, a federal court in Mississippi issued a temporary restraining order enjoining trial of the contempt charge against Rowe; and we are advised that that charge has never been further prosecuted.
11
On February 1, 1967, petitioner filed a petition for removal of the contempt proceedings in his case to the federal court. On November 14, 1968, that court remanded the case to Judge Perry's court. Thereupon Judge Perry ordered that a $1,000 bond be posted guaranteeing petitioner's appearance on January 27, 1969, to answer the contempt charge.
12
On January 22, 1969, petitioner and others filed suit in the federal court to enjoin trials of either Negroes or women in the Circuit Court of Grenada County until such time as Negroes and women were not systematically excluded from juries. Judge Perry was named as a defendant. The federal court held a hearing on January 24, 1969, and on January 25, 1969, temporarily enjoined Judge Perry from discrimination 'by reason of race, color, or sex' in jury selections.
13
Two days later, January 27, 1969, Judge Perry adjudged petitioner in contempt and sentenced him to four months and set bail at $2,000 pending appeal. He denied petitioner's request for a hearing on the merits and for an opportunity to show why Judge Perry should recuse himself. On appeal the Supreme Court of Mississippi affirmed the contempt but reduced the sentence to one month. 233 So.2d 116. The case is here on a petition for a writ of certiorari which we granted. 400 U.S. 991, 91 S.Ct. 464, 27 L.Ed.2d 438.
14
Instant action may be necessary where the misbehavior is in the presence of the judge and is known to him, and where immediate corrective steps are needed to restore order and maintain the dignity and authority of the court. Cooke v. United States, 267 U.S. 517, 534, 45 S.Ct. 390, 394, 69 L.Ed. 767; Harris v. United States, 382 U.S. 162, 165, 86 S.Ct. 352, 354, 15 L.Ed.2d 240. The contempt power is within the judge's 'arsenal of authority' which we recently described in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353. But there was no instant action here, a week expiring before removal of the case to the federal court was sought.
15
Moreover, from this record we cannot be sure that Judge Perry was personally aware of the contemptuous action when it occurred. The State's version of what happened is described as follows in its motion that petitioner show cause why he should not be punished for contempt:
16
'(T)he Sheriff and Deputy Sheriff, Howard Hayward seized Robert Johnson and immediately carried him before the Circuit Judge, Marshall Perry, and related to the Judge what had transpired.' (Italics added.)
17
As we said in In re Oliver, 333 U.S. 257, 275—276, 68 S.Ct. 499, 509, 92 L.Ed. 682,
18
'If some essential elements of the offense are not personally observed by the judge, so that he must depend upon statements made by others for his knowledge about these essential elements, due process requires * * * that the accused by accorded notice and a fair hearing. * * *'
19
And see In re Savin, 131 U.S. 267, 277, 9 S.Ct. 699, 701, 33 L.Ed. 150.
20
It would, therefore, seem that a fair hearing would entail the opportunity to show that the version of the event related to the judge was inaccurate, misleading, or incomplete.
21
We mention this latter point because our remand will entail a hearing before another judge. In concluding that Judge Perry should have recused himself, we do not rely solely on the affidavits filed by the lawyers reciting intemperate remarks of Judge Perry concerning civil rights litigants. Beyond all that was the fact that Judge Perry immediately prior to the adjudication of contempt was a defendant in one of petitioner's civil rights suits and a losing party at that. From that it is plain that he was so enmeshed in matters involving petitioner as to make it most appropriate for another judge to sit. Trial before 'an unbiased judge' is essential to due process. Bloom v. Illinois, 391 U.S. 194, 205, 88 S.Ct. 1477, 1484, 20 L.Ed.2d 522; Mayberry v. Pennsylvania, 400 U.S. 455, 465, 91 S.Ct. 499, 505, 27 L.Ed.2d 532.
22
We accordingly reverse the judgment below and remand the case for proceedings not inconsistent with this opinion.
23
Reversed and remanded.
| 01
|
403 U.S. 9
91 S.Ct. 1775
29 L.Ed.2d 279
State of UTAH, Plaintiff,v.UNITED STATES.
No. 31, Orig.
Argued April 26, 1971, on Exceptions to Report of Special Master.
Decided June 7, 1971.
Syllabus
In this suit involving conflicting claims between Utah and the United States to the shorelands around the Great Salt Lake the Special Master's report, finding that at the date of Utah's admission to the Union the Lake was navigable and that the lake bed passed to Utah at that time, is supported by adequate evidence and is approved by the Court. The parties are invited to address themselves to the decree submitted with the report with a view to agreeing, if possible, upon the issues that have now been settled.
Peter L. Strauss, Washington, D.C., for defendant.
Dallin W. Jensen, Salt Lake City, Utah, for plaintiff.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This suit was initiated by Utah to resolve a dispute between it and the United States as to shorelands around the Great Salt Lake. Utah's claim to the lands is premised on the navigability of the lake at the date of statehood, viz., January 4, 1896. If indeed the lake were navigable at that time, the claim of Utah would override any claim of the United States, with the possible exception of a claim based on the doctrine of reliction, not now before us.
2
The operation of the 'equal footing' principle has accorded newly admitted State the same property interests in submerged lands as was enjoyed by the Thirteen Original States as successors to the British Crown. Pollard's Lessee v. Hagan, 3 How. 212, 222 223, 228—230, 11 L.Ed. 565. That means that Utah's claim to the original bed of the Great Salt Lake—whether now submerged or exposed—ultimately rests on whether the lake was navigable (Martin v. Waddell, 16 Pet. 367, 410, 416—417, 10 L.Ed. 997) at the time of Utah's admission. Shievely v. Bowlby, 152 U.S. 1, 26—28, 14 S.Ct. 548, 557—558, 38 L.Ed. 331. It was to that issue that we directed the Special Master, Hon. J. Cullen Ganey, to address himself. See Utah v. United States, 394 U.S. 89, 89 S.Ct. 761, 22 L.Ed.2d 99. In the present report the Special Master found that at the time in question the Great Salt Lake was navigable. We approve that finding.
3
The question of navigability is a federal question. The Daniel Ball, 10 Wall. 557, 563, 19 L.Ed. 999. Moreover, the fact that the Great Salt Lake is not part of a navigable interstate or international commercial highway in no way interferes with the principle of public ownership of its bed. United States v. Utah, 283 U.S. 64, 75, 51 S.Ct. 438, 440, 75 L.Ed. 844; United States v. Oregon, 295 U.S. 1, 14, 55 S.Ct. 610, 615, 79 L.Ed. 1267. The test of navigability of waters was stated in The Daniel Ball, supra, at 563:
4
'Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. * * *' While that statement was addressed to the navigability of 'rivers' it applies to all water courses. United States v. Oregon, supra, 295 U.S. at 14, 55 S.Ct., at 615.
5
The United States strongly contests the finding of the Special Master that the Great Salt Lake was navigable. Although the evidence is not extensive, we think it is sufficient to sustain the findings. There were, for example, nine boats used from time to time to haul cattle and sheep from the mainland to one of the islands or from one of the islands to the mainland. The hauling apparently was done by the owners of the livestock, not by a carrier for the purpose of making money. Hence it is suggested that this was not the use of the lake as a navigable highway in the customary sense of the word. That is to say, the business of the boats was ranching and not carrying water-borne freight. We think that is an irrelevant detail. The lake was used as a highway and that is the gist of the federal test.
6
It is suggested that the carriage was also limited in the sense of serving only the few people who performed ranching operations along the shores of the lake. But that again does not detract from the basic finding that the lake served as a highway and it is that feature that distinguishes between navigability and non-navigability.
7
There was, in addition to the boats used by ranchers, one boat used by an outsider who carried sheep to an island for the owners of the sheep. It is said that one sheep boat for hire does not make an artery for commerce; but one sheep boat for hire is in keeping with the theme of actual navigability of the waters of the lake in earlier years.
8
There was, in addition, a boat known as the City of Corinne which was launched in May 1871 for the purpose of carrying passengers and freight; but its life in that capacity apparently lasted less than a year. In 1872 it was converted into an excursion boat which apparently plied the waters of the lake until 1881. There are other boats that hauled sheep to and from an island in the lake and also hauled ore, and salt, and cedar posts. Still another boat was used to carry salt from various salt works around the lake to a railroad connection.
9
The United States says the trade conducted by these various vessels was sporadic and their careers were short. It is true that most of the traffic which we have mentioned took place in the 1880's, while Utah became a State in 1896. Moreover, it is said that the level of the lake had so changed by 1896 that navigation was not practical. The Master's Report effectively refutes that contention. It says that on January 4, 1896, the lake was 30.2 feet deep. He finds that on that date 'the Lake was physically capable of being used in its ordinary condition as a highway for floating and affording passage to water craft in the manner over which trade and travel was or might be conducted in the customary modes of travel on water at that time.' He found that the lake on January 4, 1896, 'could have floated and afforded passage to large boats, barges and similar craft currently in general use on inland navigable bodies of water in the United States.' He found that the areas of the lake that had a depth sufficient for navigation 'were several miles wide, extending substantially through the length and width of the Lake.'
10
Most of the history of actual water transportation, to be sure, took place on the lake in the 1880's, yet the findings of the Master are that the water conditions which obtained on January 4, 1896, still permitted navigation at that time.
11
In sum, it is clear that Utah is entitled to the decree for which it asks. The Special Master has submitted with his report a proposed decree which we attach as an Appendix to this opinion. We invite the parties to address themselves to that decree with the view of agreeing, if possible, upon the issues which have now been settled by this litigation.
12
So ordered.
13
Decree for plaintiff.
14
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
APPENDIX TO OPINION OF THE COURT
IT IS ORDERED, ADJUDGED AND DECREED THAT:
15
1. The United States of America, its departments and agencies, are enjoined, subject to any regulations which the Congress may impose in the interest of navigation or pollution control, from asserting against the State of Utah any claim of right, title and interest:
16
(a) to the bed of the Great Salt Lake lying below the meander line of Great Salt Lake as duly surveyed heretofore or in accordance with Section 1 of the Act of June 3, 1966, 80 Stat. 192, with the exception of any lands within the Bear River Migratory Bird Refuge and the Weber Basin federal reclamation project,
17
(b) to the natural resources and living organisms in or beneath the bed of the Great Salt Lake as delineated in (a) above, and
18
(c) to the natural resources and living organisms either within the waters of the Great Salt Lake, or extracted therefrom, lying below the meander line of the Great Salt Lake, as delineated in (a) above, except brine and minerals in solution in the brine or precipitated or extracted therefrom in whatever federal lands there may be below said meander line, together with the right to prospect for, mine, and remove the same, as set forth in Section 3 of the Act of June 3, 1966, 80 Stat. 192.
19
2. The State of Utah is not required to pay the United States, through the Secretary of the Interior, for the lands, including any minerals, lying below the meander line of the Great Salt Lake, as delineated in 1(a), above, of this decree.
20
3. The prayer of the United States of America in its Answer to the State of Utah's Complaint that this Court 'confirm, declare and establish that the United States is the owner of all right, title and interest in all the lands described in Section 2 of the Act of June 3, 1966, 80 Stat. 192, as amended by the Act of August 23, 1966, 80 Stat. 349, and that the State of Utah is without any right, title or interest in such lands, save for the right to have these lands conveyed to it by the United States, and to pay for them, in accordance with the provisions of the Act of June 3, 1966, as amended,' is denied.
21
Respectfully submitted,
22
J. CULLEN GANEY,
23
Senior Circuit Judge,
24
Special Master.
| 910
|
403 U.S. 29
91 S.Ct. 1811.
29 L.Ed.2d 296
George A. ROSENBLOOM, Petitioner,v.METROMEDIA, INC.
No. 66.
Argued Dec. 7 and 8, 1970.
Decided June 7, 1971.
Syllabus
Respondent's radio station, which broadcast news reports every half hour. broadcast news stories of petitioner's arrest for possession of obscene literature and the police seizure of 'obscene books,' and stories concerning petitioner's lawsuit against certain officials alleging that the magazines he distributed were not obscene and seeking injunctive relief from police interference with his business. These latter stories did not mention petitioner's name, but used the terms 'smut literature racket' and 'girliebook peddlers.' Following petitioner's acquittal of criminal obscenity charges, he filed this diversity action in District Court seeking damages under Pennsylvania's libel law. The jury found for petitioner and awarded $25,000 in general damages; and $725,000 in punitive damages, which was reduced by the court on remittitur to $250,000. The Court of Appeals reversed, holding that the New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, standard applied, and 'the fact that plaintiff was not a public figure cannot be accorded decisive significance.' Held: the judgment is affirmed. Pp. 40—62.
415 F.2d 892, affirmed.
Mr. Justice BRENNAN, joined by THE CHIEF JUSTICE and Mr. Justice BLACKMUN, concluded that the New York Times standard of knowing or reckless falsity applies in a state civil libel action brought by a private individual for a defamatory falsehood uttered in a radio news broadcast about the individual's involvement in an event of public or general interest. Pp. 40—57.
Mr. Justice BLACK concluded that the First Amendment protects the news media from libel judgments even when statements are made with knowledge that they are false. Pp. 57.
Mr. Justice WHITE concluded that, in the absence of actual malice as defined in New York Times, supra, the First Amendment gives the news media a privilege to report and comment upon the official actions of public servants in full detail, without sparing from public view the reputation or privacy of an individual involved in or affected by any official action. Pp. 59 62.
Mr. Ramsey Clark, Washington, D.C., for petitioner.
Mr. Bernard G. Segal, Philadelphia, Pa., for respondent.
Mr. Justice BRENNAN announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE and Mr. Justice BLACKMUN join.
1
In a series of cases beginning with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Court has considered the limitations upon state libel laws imposed by the constitutional guarantees of freedom of speech and of the press. New York Times held that in a civil libel action by a public official against a newspaper those guarantees required clear and convincing proof that a defamatory falsehood alleged as libel was uttered with 'knowledge that it was false or with reckless disregard of whether it was false or not.' Id., at 280, 84 S.Ct., at 726. The same requirement was later held to apply to 'public figures' who sued in libel on the basis of alleged defamatory falsehoods. The several cases considered since New York Times involved actions of 'public officials' or 'public figures,' usually, but not always, against newspapers or magazines.1 Common to all the cases was a defamatory falsehood in the report of an event of 'public or general interest.'2 The instant case presents the question whether the New York Times' knowing-or-reckless-falsity standard applies in a state civil libel action brought not by a 'public official' or a 'public figure' but by a private individual for a defamatory falsehood uttered in a news broadcast by a radio station about the individual's involvement in an event of public or general interest.3 The District Court for the Eastern District of Pennsylvania held that the New York Times standard did not apply and that Pennsylvania law determined respondent's liability in this diversity case, 289 F.Supp. 737 (1968). The Court of Appeals for the Third Circuit held that the New York Times standard did apply and reversed the judgment for damages awarded to petitioner by the jury. 415 F.2d 892 (1969). We granted certiorari, 397 U.S. 904, 90 S.Ct. 917, 25 L.Ed.2d 85 (1970). We agree with the Court of Appeals and affirm that court's judgment.
2
* In 1963, petitioner was a distributor of nudist magazines in the Philadelphia metropolitan area. During the fall of that year, in response to citizen complaints, the Special Investigations Squad of the Philadelphia Police Department initiated a series of enforcement actions under the city's obscenity laws. The police, under the command of Captain Ferguson, purchased various magazines from more than 20 newsstands throughout the city. Based upon Captain Ferguson's determination that the magazines were obscene,4 police on October 1, 1963, arrested most of the newsstand operators5 on charges of selling obscene material. While the police were making an arrest at one newsstand, petitioner arrived to deliver some of his nudist magazines and was immediately arrested along with the newsboy.6 Three days later, on October 4, the police obtained a warrant to search petitioner's home and the rented barn he used as a warehouse, and seized the inventory of magazines and books found at these locations. Upon learning of the seizures, petitioner, who had been released on bail after his first arrest, surrendered to the police and was arrested for a second time.
3
Following the second arrest, Captain Ferguson telephoned respondent's radio station WIP and another local radio station, a wire service, and a local newspaper to inform them of the raid on petitioner's home and of his arrest. WIP broadcast news reports every half hour to the Philadelphia metropolitan area. These news programs ran either five or ten minutes and generally contained from six to twenty different items that averaged about thirty seconds each. WIP's 6 p.m. broadcast on October 4, 1963, included the following item:
4
'City Cracks Down on Smut Merchants
5
'The Special Investigations Squad raided the home of George Rosenbloom in the 1800 block of Vesta Street this afternoon. Police confiscated 1,000 allegedly obscene books at Rosenbloom's home and arrested him on charges of possession of obscene literature. The Special Investigations Squad also raided a barn in the 20 Hundred block of Welsh Road near Bustleton Avenue and confiscated 3,000 obscene books. Capt. Ferguson says he believes they have hit the supply of a main distributor of obscene material in Philadelphia.' This report was rebroadcast in substantially the same form at 6:30 p.m., but at 8 p.m. when the item was broadcast for the third time, WIP corrected the third sentence to read 'reportedly obscene.' News of petitioner's arrest was broadcast five more times in the following twelve hours, but each report described the seized books as 'allegedly' or 'reportedly' obscene. From October 5 to October 21, WIP broadcast no further reports relating to petitioner.
6
On October 16 petitioner brought an action in Federal District Court against various city and police officials and against several local news media.7 The suit alleged that the magazines petitioner distributed were not obscene and sought injunctive relief prohibiting further police interference with his business as well as further publicity of the earlier arrests. The second series of allegedly defamatory broadcasts related to WIP's news reports of the lawsuit. There were ten broadcasts on October 21, two on October 25, and one on November 1. None mentioned petitioner by name. The first at 6:30 a.m. on October 21 was pretty much like those that followed:
7
'Federal District Judge Lord, will hear arguments today from two publishers and a distributor all seeking an injunction against Philadelphia Police Commissioner Howard Leary * * * District Attorney James C. Crumlish * * * a local television station and a newspaper * * * ordering them to lay off the smut literature racket.
8
'The girlie-book peddlers say the police crackdown and continued reference to their borderline literature as smut or filth is hurting their business. Judge Lord refused to issue a temporary injunction when he was first approached. Today he'll decide the issue. It will set a precedent * * * and if the injunction is not granted * * * it could signal an even more intense effort to rid the city of pornography.'
9
On October 27, petitioner went to WIP's studios after hearing from a friend that the station had broadcast news about his lawsuit. Using a lobby telephone to talk with a part-time newscaster, petitioner inquired what stories WIP had broadcast about him. The newscaster asked him to be more specific about dates and times. Petitioner then asked for the noon news broadcast on october 21, 1963, which the newscaster read to him over the phone; it was similar to the above 6:30 a.m. broadcast. According to petitioner, the ensuing interchange was brief. Petitioner told the newscaster that his magazines were 'found to be completely legal and legitimate by the United States Supreme Court.' When the newscaster replied the district attorney had said the magazines were obscene, petitioner countered that he had a public statement of the district attorney declaring the magazines legal. At that point, petitioner testified, 'the telephone conversation was terminated * * *. He just hung up.' Petitioner apparently made no request for a retraction or correction, and none was forthcoming. WIP's final report on petitioner's lawsuit—the only one after petitioner's unsatisfactory conversation at the station—occurred on November 1 after the station had checked the story with the judge involved.8
II
10
In May 1964 a jury acquitted petitioner in state court of the criminal obscenity charges under instructions of the trial judge that, as a matter of law, the nudist magazines distributed by petitioner were not obscene. Following his acquittal, petitioner filed this diversity action in District Court seeking damages under Pennsylvania's libel law. Petitioner alleged that WIP's unqualified characterization of the books seized as 'obscene' in the 6 and 6:30 p.m. broadcasts of October 4, describing his arrest, constituted libel per se and was proved false by petitioner's subsequent acquittal. In addition, he alleged that the broadcasts in the second series describing his court suit for injunctive relief were also false and defamatory in that WIP characterized petitioner and his business associates as 'smut distributors' and 'girlie-book peddlers' and, further, falsely characterized the suit as an attempt to force the defendants 'to lay off the smut literature racket.'
11
At the trial WIP's defenses were truth and privilege. WIP's news director testified that his eight-man staff of reporters prepared their own newscasts and broadcast their material themselves, and that material for the news programs usually came either from the wire services or from telephone tips. None of the writers or broadcasters involved in preparing the broadcasts in this case testified. The news director's recollection was that the primary source of information for the first series of broadcasts about petitioner's arrest was Captain Ferguson, but that, to the director's knowledge, the station did not have any further verification. Captain Ferguson testified that he had informed WIP and other media of the police action and that WIP had accurately broadcast what he told the station. The evidence regarding WIP's investigation of petitioner's lawsuit in the second series of broadcasts was even more sparse. The news director testified that he was 'sure we would check with the District Attorney's office also and with the Police Department,' but 'it would be difficult for me to specifically state what additional corroboration we had.' In general, he testified that WIP's half-hour deadlines required it to rely on wire-service copy and oral reports from previously reliable sources subject to the general policy that 'we will contact as many sources as we possible can on any kind of a story.'
III
12
Pennsylvania's libel law tracks almost precisely the Restatement (First) of Torts provisions on the subject. Pennsylvania holds actionable any unprivileged 'malicious'9 publication of matter which tends to harm a person's reputation and expose him to public hatred, contempt, or ridicule. Schnabel v. Meredith, 378 Pa. 609. 107 A.2d 860 (1954); Restatement of Torts §§ 558, 559 (1938). Pennsylvania law recognizes truth as a complete defense to a libel action. Schonek v. WJAC, Inc., 436 Pa. 78, 84, 258 A.2d 504, 507 (1969); Restatement of Torts § 582. It recognizes an absolute immunity for defamatory statements made by high state officials, even if published with an improper motive, actual malice, or knowing falsity. Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958); Restatement of Torts § 591, and it recognizes a conditional privilege for news media to report judicial, administrative, or legislative proceedings if the account is fair and accurate, and not published solely for the purpose of causing harm to the person defamed, even though the official information is false or inaccurate. Sciandra v. Lynett, 409 Pa. 595, 600—601, 187 A.2d 586, 588—589 (1963); Restatement of Torts § 611. The conditional privilege of the news media may be defeated, however, by "want of reasonable care and diligence to ascertain the truth, before giving currency to an untrue communication.' The failure to employ such 'reasonable care and diligence' can destroy a privilege which otherwise would protect the utterer of the communication.' Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 179, 191 A.2d 662, 668 (1963). Pennsylvania has also enacted verbatim the Restatement's provisions on burden of proof, which place the burden of proof for the affirmative defenses of truth and privilege upon the defendant.10
13
At the close of the evidence, the District Court denied respondent's motion for a directed verdict and charged the jury, in conformity with Pennsylvania law, that four findings were necessary to return a verdict for petitioner: (1) that one or more of the broadcasts were defamatory; (2) that a reasonable listener would conclude that the defamatory statement referred to petitioner; (3) that WIP had forfeited its privilege to report official proceedings fairly and accurately, either because it intended to injure the plaintiff personally or because it exercised the privilege unreasonably and without reasonable care; and (4) that the reporting was false. The jury was instructed that petitioner had the burden of proof on the first three issues, but that respondent had the burden of proving that the reporting was true. The jury was further instructed that 'as a matter of law' petitioner was not entitled to actual damages claimed for loss of business 'not because it wouldn't ordinarily be but because there has been evidence that this same subject matter was the subject' of broadcasts over other television and radio stations and of newspaper reports, 'so if there was any business lost * * * we have no proof * * * that (it) resulted directly from the broadcasts by WIP * * *.' App. 331a. On the question of punitive damages, the judge gave the following instruction:
14
'(I)f you find that this publication arose from a bad motive or malice toward the plaintiff, or if you find that it was published with reckless indifference to the truth, if you find that it was not true, you would be entitled to award punitive damages, and punitive damages are awarded as a deterrent from future conduct of the same sort.
15
'They really are awarded only for outrageous conduct, as I have said, with a bad motive or with reckless disregard of the interests of others, and before you would award punitive damages you must find that these broadcasts were published with a bad motive or with reckless disregard of the rights of others, or reckless indifference to the rights of others * * *.'
16
The jury returned a verdict for petitioner and awarded $25,000 in general damages, and $725,000 in punitive damages. The District Court reduced the punitive damages award to $250,000 on remittitur, but denied respondent's motion for judgment n.o.v. In reversing, the Court of Appeals emphasized that the broadcasts concerned matters of public interest and that they involved 'hot news' prepared under deadline pressure. The Court of Appeals concluded that 'the fact that plaintiff was not a public figure cannot be accorded decisive importance if the recognized important guarantees of the First Amendment are to be adequately implemented.' 415 F.2d, at 896. For that reason, the court held that the New York Times standard applied and, further, directed that judgment be entered for respondent, holding that, as a matter of law, petitioner's evidence did not meet that standard.
IV
17
Petitioner concedes that the police campaign to enforce the obscenity laws was an issue of public interest, and, therefore, that the constitutional guarantees for freedom of speech and press imposed limits upon Pennsylvania's power to apply its libel laws to compel respondent to compensate him in damages for the alleged defamatory falsehoods broadcast about his involvement. As noted, the narrow question he raises is whether, because he is not a 'public official' or a 'public figure' but a private individual, those limits required that he prove that the falsehoods resulted from a failure of respondent to exercise reasonable care, or required that he prove that the falsehoods were broadcast with knowledge of their falsity or with reckless disregard of whether they were false or not. That question must be answered against the background of the functions of the constitutional guarantees for freedom of expression. Rosenblatt v. Baer, 383 U.S. 75, at 84—85, n. 10, 86 S.Ct. 669, at 675, 15 L.Ed.2d 597 (1966).
18
Self-governance in the United States presupposes far more than knowledge and debate about the strictly official activities of various levels of government. The commitment of the country to the institution of private property, protected by the Due Process and Just Compensation Clauses in the Constitution, places in private hands vast areas of economic and social power that vitally affect the nature and quality of life in the Nation. Our efforts to live and work together in a free society not completely dominated by governmental regulation necessarily encompass far more than politics in a narrow sense. 'The guarantees for speech and press are not the preserve of political expression or comment upon public affairs.' Time, Inc. v. Hill, 385 U.S. 374, 388, 87 S.Ct. 534, 542, 17 L.Ed.2d 456 (1967). '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, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940).
19
Although the limitations upon civil libel actions, first held in New York Times to be required by the First Amendment, were applied in that case in the context of defamatory falsehoods about the official conduct of a public official, later decisions have disclosed the artificiality, in terms of the public's interest, of a simple distinction between 'public' and 'private' individuals or institutions:
20
'Increasingly in this country, the distinctions between governmental and private sectors are blurred. * * * In many situations, policy determinations which traditionally were channeled through formal political institutions are now originated and implemented through a complex array of boards, committees, commissions, corporations, and associations, some only loosely connected with the Government. This blending of positions and power has also occurred in the case of individuals so that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions. * * *
21
'* * * Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of 'public officials." Curtis Publishing Co. v. Butts, 388 U.S. 130, 163—164, 87 S.Ct. 1975, 1996, 18 L.Ed.2d 1094 (1967) (Warren, C.J., concurring in the result).
22
Moreover, the constitutional protection was not intended to be limited to matters bearing broadly on issues of responsible government. '(T)he Founders * * * felt that a free press would advance 'truth, science, morality, and arts in general' as well as responsible government.' Id., at 147, 87 S.Ct., at 1987 (opinion of Harlan, J.). Comments in other cases reiterate this judgment that the First Amendment extends to myriad matters of public interest. In Time, Inc. v. Hill, supra, we had 'no doubt that the * * * opening of a new play linked to an actual incident, is a matter of public interest,' 385 U.S., at 388, 87 S.Ct., at 542, which was entitled to constitutional protection. Butts held that an alleged 'fix' of a college football game was a public issue. Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), a companion case to Butts, established that the public had a similar interest in the events and personalities involved in federal efforts to enforce a court decree ordering the enrollment of a Negro student in the University of Mississippi. Thus, these cases underscore the vitality, as well as the scope, of the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' New York Times Co. v. Sullivan, 376 U.S., at 270—271, 84 S.Ct., at 721 (emphasis added).
23
If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not 'voluntarily' choose to become involved. The public's primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant's prior anonymity or notoriety.11 The present case illustrates the point. The community has a vital interest in the proper enforcement of its criminal laws, particularly in an area such as obscenity where a number of highly important values are potentially in conflict: the public has an interest both in seeing that the criminal law is adequately enforced and in assuring that the law is not used unconstitutionally to suppress free expression. Whether the person involved is a famous large-scale magazine distributor or a 'private' businessman running a corner newsstand has no relevance in ascertaining whether the public has an interest in the issue. We honor the commitment to robust debate on public issues, which is embodied in the First Amendment, by extending constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.12
24
Our Brother WHITE agrees that the protection afforded by the First Amendment depends upon whether the issue involved in the publication is an issue of public or general concern. He would, however, confine our holding to the situation raised by the facts in this case, that is, limit it to issues involving 'official actions of public servants.' In our view that might be misleading. It is clear that there has emerged from our cases decided since New York Times the concept that the First Amendment's impact upon state libel laws derives not so much from whether the plaintiff is a 'public official,' 'public figure,' or 'private individual,' as it derives from the question whether the allegedly defamatory publication concerns a matter of public or general interest. See T. Emerson, The System of Freedom of Expression 531—532, 540 (1970). In that circumstance we think the time has come forthrightly to announce that the determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an issue of public or general concern, albeit leaving the delineation of the reach of that term to future cases. As our Brother WHITE observes, that is not a problem in this case, since police arrest of a person for distributing allegedly obscene magazines clearly constitutes an issue of public or general interest.13
V
25
We turn then to the question to be decided. Petitioner's argument that the Constitution should be held to require that the private individual prove only that the publisher failed to exercise 'reasonable care' in publishing defamatory falsehoods proceeds along two lines. First, he argues that the private individual, unlike the public figure, does not have access to the media to counter the defamatory material and that the private individual, unlike the public figure, has not assumed the risk of defamation by thrusting himself into the public arena. Second, petitioner focuses on the important values served by the law of defamation in preventing and redressing attacks upon reputation.
26
We have recognized the force of petitioner's arguments, Time, Inc. v. Hill, supra, 385 U.S., at 391, 87 S.Ct., at 543—544, and we adhere to the caution expressed in that case against 'blind application' of the New York Times standard. Id., at 390, 87 S.Ct., at 543. Analysis of the particular factors involved, however, convinces us that petitioner's arguments cannot be reconcided with the purposes of the First Amendment, with our cases, and with the traditional doctrines of libel law itself. Drawing a distinction between 'public' and 'private' figures makes no sense in terms of the First Amendment guarantees.14 The New York Times standard was applied to libel of a public official or public figure to give effect to the Amendment's function to encourage ventilation of public issues, not because the public official has any less interest in protecting his reputation than an individual in private life. While the argument that public figures need less protection because they can command media attention to counter criticism may be true for some very prominent people, even then it is the rare case where the denial overtakes the original charge. Denials, retractions, and corrections are not 'hot' news, and rarely receive the prominence of the original story. When the public official or public figure is a minor functionary, or has left the position that put him in the public eye, see Rosenblatt v. Baer, supra, the argument loses all of its force. In the vast majority of libels involving public officials or public figures, the ability to respond through the media will depend on the same complex factor on which the ability of a private individual depends: the unpredictable event of the media's continuing interest in the story. Thus the unproved, and highly improbable, generalization that an as yet undefined class of 'public figures' involved in matters of public concern will be better able to respond through the media than private individuals also involved in such matters seems too insubstantial a reed on which to rest a constitutional distinction. Furthermore, in First Amendment terms, the cure seems far worse than the disease. If the States fear that private citizens will not be able to respond adequately to publicity involving them, the solution lies in the direction of ensuring their ability to respond, rather than in stifling public discussion of matters of public concern.15
27
Further reflection over the years since New York Times was decided persuades us that the view of the 'public official' or 'public figure' as assuming the risk of defamation by voluntarily thrusting himself into the public eye bears little relationship either to the values protected by the First Amendment or to the nature of our society. We have recognized that '(e)xposure of the self to others in varying degrees is a concomitant of life in a civilized community.' Time, Inc. v. Hill, supra, 385 U.S., at 388, 87 S.Ct., at 542. Voluntarily or not, we are all 'public' men to some degree. Conversely, some aspects of the lives of even the most public men fall outside the area of matters of public or general concern. See n. 12, supra; Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).16 Thus, the idea that certain 'public' figures have voluntarily exposed their entire lives to public inspection, while private individuals have kept theirs carefully shrouded from public view is, at best, a legal fiction. In any event, such a distinction could easily produce the paradoxical result of dampening discussion of issues of public or general concern because they happen to involve private citizens while extending constitutional encouragement to discussion of aspects of the lives of 'public figures' that are not in the area of public or general concern.
28
General references to the values protected by the law of libel conceal important distinctions. Traditional arguments suggest that libel law protects two separate interests of the individual: first, his desire to preserve a certain privacy around his personality from unwarranted intrusion, and second, a desire to preserve his public good name and reputation. See Rosenblatt v. Baer, 383 U.S., at 92, 86 S.Ct., at 679 (Stewart, J., concurring). The individual's interest in privacy—in preventing unwarranted intrusion upon the private aspects of his life—is not involved in this case, or even in the class of cases under consideration, since, by hypothesis, the individual is involved in matters of public or general concern.17 In the present case, however, petitioner's business reputation is involved, and thus the relevant interests protected by state libel law are petitioner's public reputation and good name.
29
These are important interests. Consonant with the libel laws of most of the States, however, Pennsylvania's libel law subordinates these interests of the individual in a number of circumstances. Thus, high government officials are immune from liability—absolutely privileged—even if they publish defamatory material from an improper motive, with actual malice and with knowledge of its falsity. Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958). This absolute privilege attaches to judges, attorneys at law in connection with a judicial proceeding, parties and witnesses to judicial proceedings, Congressmen and state legislators, and high national and state executive officials. Restatement of Torts §§ 585—592. Moreover, a conditional privilege allows newspapers to report the false defamatory material originally published under the absolute privileges listed above, if done accurately. Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586 (1963).
30
Even without the presence of a specific constitutional command, therefore, Pennsylvania libel law recognizes that society's interest in protecting individual reputation often yields to other important social goals. In this case, the vital needs of freedom of the press and freedom of speech persuade us that allowing private citizens to obtain damage judgments on the basis of a jury determination that a publisher probably failed to use reasonable care would not provide adequate 'breathing space' for these great freedoms. Reasonable care is an 'elusive standard' that 'would place on the press the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.' Time, Inc. v. Hill, 385 U.S., at 389, 87 S.Ct., at 543. Fear of guessing wrong must inevitably cause self-censorship and thus create the danger that the legitimate utterance will be deterred. Cf. Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958).
31
Moreover, we ordinarily decide civil litigation by the preponderance of the evidence. Indeed, the judge instructed the jury to decide the present case by that standard. In the normal civil suit where this standard is employed, 'we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor.' In re Winship, 397 U.S. 358, 371, 90 S.Ct. 1068, 1076, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). In libel cases, however, we view an erroneous verdict for the plaintiff as most serious. Not only does it mulct the defendant for an innocent misstatement—the three-quarter-million-dollar jury verdict in this case could rest on such an error—but the possibility of such error, even beyond the vagueness of the negligence standard itself, would create a strong impetus toward self-censorship, which the First Amendment cannot tolerate. These dangers for freedom of speech and press led us to reject the reasonable-man standard of liability as 'simply inconsistent' with our national commitment under the First Amendment when sought to be applied to the conduct of a political campaign. Monitor Patriot Co. v. Roy, 401 U.S. 265, 276, 91 S.Ct. 621, 627, 28 L.Ed.2d 35 (1971). The same considerations lead us to reject that standard here.
32
We are aware that the press has, on occasion, grossly abused the freedom it is given by the Constitution. All must deplore such excesses. In an ideal world, the responsibility of the press would match the freedom and public trust given it. But from the earliest days of our history, this free society, dependent as it is for its survival upon a vigorous free press, has tolerated some abuse. In 1799, James Madison made the point in quoting (and adopting) John Marshall's answer to Talleyrand's complaints about American Newspapers, American State Papers, 2 Foreign Relations 196 (U.S. Cong. 1832):
33
"Among those principles deemed sacred in America, among those sacred rights considered as forming the bulwark of their liberty, which the Government contemplates with awful reverence and would approach only with the most cautious circumspection, there is no one of which the importance is more deeply impressed on the public mind than the liberty of the press. That this liberty is often carried to excess; that it has sometimes degenerated into licentiousness, is seen and lamented, but the remedy has not yet been discovered. Perhaps it is an evil inseparable from the good with which it is allied; perhaps it is a shoot which cannot be stripped from the stalk without wounding vitally the plant from which it is torn. However desirable those measures might be which might correct without enslaving the press, they have never yet been devised in America." 6 Writings of James Madison, 1790—1802, p. 336 (G. Hunt ed. 1906) (emphasis in original).
34
This Court has recognized this imperative: '(T)o insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones.' St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262 (1968). We thus hold that a libel action, as here, by a private individual against a licensed radio station for a defamatory falsehood in a newscast relating to his involvement in an event of public or general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not.18 Calculated falsehood, of course, falls outside 'the fruitful exercise of the right of free speech.' Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964).
35
Our Brothers HARLAN and MARSHALL reject the knowing-or-reckless-falsehood standard in favor of a test that would require, at least, that the person defamed establish that the publisher negligently failed to ascertain the truth of his story; they would also limit any recovery to 'actual' damages. For the reasons we have stated the negligence standard gives insufficient breathing space to First Amendment values. Limiting recovery to actual damages has the same defects. In the first instance, that standard, too, leaves the First Amendment insufficient elbow room within which to function. It is not simply the possibility of a judgment for damages that results in self-censorship. The very possibility of having to engage in litigation, an expensive and protracted process, is threat enough to cause discussion and debate to 'steer far wider of the unlawful zone' thereby keeping protected discussion from public cognizance. Speiser v. Randall, 357 U.S., at 526, 78 S.Ct., at 1342. Cf. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 334—339, 91 S.Ct. 1434, 1445—1448, 28 L.Ed.2d 788 (1971). Too, a small newspaper suffers equally from a substantial damage award, whether the label of the award be 'actual' or 'punitive.'
36
The real thrust of Brothers HARLAN's and MARSHALL's position, however, is their assertion that their proposal will not 'constitutionalize' the factfinding process. But this clearly is not the way their test would work in practice. Their approach means only that factfinding will shift from an inquiry into whether the defamatory statements were knowingly or recklessly uttered to the inquiry whether they were negligently uttered, and if so, to an inquiry whether plaintiff suffered 'actual' damages. This latter inquiry will involve judges even more deeply in factfinding. Would the mere announcement by a state legislature that embarrassment and pain and suffering are measurable actual losses mean that such damages may be awarded in libel actions? No matter how the problem is approached, this Court would ultimately have to fashion constitutional definitions of 'negligence' and of 'actual damages.'
37
Aside from these particularized considerations, we have repeatedly recognized that courts may not avoid an excursion into factfinding in this area simply because it is time consuming or difficult. We stated in Pennekamp v. Florida, 328 U.S. 331, 335, 66 S.Ct. 1029, 1031, 90 L.Ed. 1295 (1946), that:
38
'The Constitution has imposed upon this Court final authority to determine the meaning and application of those words of that instrument which require interpretation to resolve judicial issues. With that responsibility, we are compelled to examine for ourselves the statements in issue and the circumstances under which they were made to see whether or not they * * * are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.' (Footnote omitted.)
39
Clearly, then, this Court has an 'obligation to test challenged judgments against the guarantees of the First and Fourteenth Amendments,' and in doing so 'this Court cannot avoid making an independent constitutional judgment on the facts of the case.' Jacobellis v. Ohio, 378 U.S. 184, 190, 84 S.Ct. 1676, 1679, 12 L.Ed.2d 793 (1964). The simple fact is that First Amendment questions of 'constitutional fact' compel this Court's de novo review. See Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963); Blackburn v. Alabama, 361 U.S. 199, 205 n. 5, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960).
VI
40
Petitioner argues that the instructions on punitive damages either cured or rendered harmless the instructions permitting an award of general damages based on a finding of failure of WIP to exercise reasonable care. We have doubts of the merits of the premise,19 but even assuming that instructions were given satisfying the standard of knowing or reckless falsity, the evidence was insufficient to sustain an award for the petitioner under that standard. In these cases our 'duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied.' New York Times Co. v. Sullivan, 376 U.S., at 285, 84 S.Ct., at 728. Our independent analysis of the record leads us to agree with the Court of Appeals that none of the proofs, considered either singly or cumulatively, satisfies the constitutional standard with the convincing clarity necessary to raise a jury question whether the defamatory falsehoods were broadcast with knowledge that they were false or with reckless disregard of whether they were false or not.
41
The evidence most strongly supporting petitioner is that concerning his visit to WIP's studio where a part-time newscaster hung up the telephone when petitioner disputed the newscaster's statement that the District Attorney had characterized petitioner's magazines as obscene. This contact occurred, however, after all but one of the second series of broadcasts had been aired. The incident has no probative value insofar as it bears on petitioner's case as to the first series of broadcasts. That portion of petitioner's case was based upon the omission from the first two broadcasts at 6 and 6:30 p.m. on October 4 of the word 'alleged' preceding a characterization of the magazines distributed by petitioner. But that omission was corrected with the 8 p.m. broadcast and was not repeated in the five broadcasts that followed. And we agree with the analysis of the Court of Appeals that led that court, and leads us, to conclude that the episode failed to provide evidence satisfying the New York Times standard insofar as it bore on petitioner's case based upon the broadcasts on and after October 21 concerning petitioner's lawsuit:
42
'Only one broadcast took place after this conversation. It is attacked on the ground that it contains an inaccurate statement concerning plaintiff's injunction action in that it stated that the district attorney considered plaintiff's publications to be smut and immoral literature. The transcript of the testimony shows that plaintiff's own attorney, when questioning defendant's representative concerning the allegedly defamatory portion of the last broadcast, said that he was not questioning its 'accuracy'. Furthermore, his examination of the same witness brought out that defendant's representative confirmed the story with the judge involved before the broadcast was made. We think that the episode described failed to provide evidence of actual malice with the requisite convincing clarity to create a jury issue under federal standards.' 415 F.2d at 897.
43
Petitioner argues finally that WIP's failure to communicate with him to learn his side of the case and to obtain a copy of the magazine for examination, sufficed to support a verdict under the New York Times standard. But our 'cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.' St. Amant v. Thompson, 390 U.S., at 731, 88 S.Ct., at 1325. Respondent here relied on information supplied by police officials. Following petitioner's complaint about the accuracy of the broadcasts, WIP checked its last report with the judge who presided in the case. While we may assume that the District Court correctly held to be defamatory respondent's characterizations of petitioner's business as 'the smut literature racket,' and of those engaged in it as 'girlie-book peddlers,' there is no evidence in the record to support a conclusion that respondent 'in fact entertained serious doubts as to the truth' of its reports.
44
Affirmed.
45
Mr. Justice DOUGLAS took no part in the consideration or decision of this case.
46
Mr. Justice BLACK, concurring in the judgment.
47
I concur in the judgment of the Court for the reasons stated in my concurring opinion in New York Times Co. v. Sullivan, 376 U.S. 254, 293, 84 S.Ct. 710, 733, 11 L.Ed.2d 686 (1964), in my concurring and dissenting opinion in Curtis Publishing Co. v. Butts, 388 U.S. 130, 170, 87 S.Ct. 1975, 1999, 18 L.Ed.2d 1094 (1967), and in Mr. Justice Douglas' concurring opinion in Garrison v. Louisiana, 379 U.S. 64, 80, 85 S.Ct. 209, 218—219, 13 L.Ed.2d 125 (1964). I agree of course that First Amendment protection extends to 'all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.' Ante, at 44. However, in my view, the First Amendment does not permit the recovery of libel judgments against the news media even when statements are broadcast with knowledge they are false. As I stated in Curtis Publishing Co. v. Butts, supra, '(I)t is time for this Court to abandon New York Times Co. v. Sullivan and adopt the rule to the effect that the First Amendment was intended to leave the press free from the harassment of libel judgments.' Id., at 172, 87 S.Ct., at 2000.
48
Mr. Justice WHITE, concurring in the judgment.
49
* Under existing law the First Amendment is deemed to permit recoveries for damaging falsehoods published about public officials or public figures only if the defamation is knowingly or recklessly false. But until today the First Amendment has not been thought to prevent citizens who are neither public officials nor public figures from recovering damages for defamation upon proving publication of a false statement injurious to their reputation. There has been no necessity to show deliberate falsehood, recklessness, or even negligence.
50
The Court has now decided that the First Amendment requires further restrictions on state defamation laws. Mr. Justice BRENNAN and two other members of the Court would require proof of knowing or reckless misrepresentation of the facts whenever the publication concerns a subject of legitimate public interest, even though the target is a 'private' citizen. Only residual areas would remain in which a lower degree of proof would obtain.
51
Three other members of the Court also agree that private reputation has enjoyed too much protection and the media too little. But in the interest of protecting reputation, they would not roll back state laws so far. They would interpret the First Amendment as proscribing liability without fault and would equate non-negligent falsehood with faultless conduct. The burden of the damaging lie would be shifted from the media to the private citizen unless the latter could prove negligence or some higher degree of fault. They would also drastically limit the authority of the States to award compensatory and punitive damages for injury to reputation.
52
Mr. Justice BLACK, consistently with the views that he and Mr. Justice DOUGLAS have long held, finds no room in the First Amendment for any defamation recovery whatsoever.
53
Given this spectrum of proposed restrictions on state defamation laws and assuming that Mr. Justice BLACK and Mr. Justice DOUGLAS will continue in future cases to support the severest of the restrictions, it would seem that at least five members of the Court would support each of the following rules:
54
For public officers and public figures to recover for damage to their reputations for libelous falsehoods, they must prove either knowing or reckless disregard of the truth. All other plaintiffs must prove at least negligent falsehood, but if the publication about them was in an area of legitimate public interest, then they too must prove deliberate or reckless error. In all actions for libel or slander, actual damages must be proved, and awards of punitive damages will be strictly limited.
II
55
For myself, I cannot join any of the opinions filed in this case. Each of them decides broader constitutional issues and displaces more state libel law than is necessary for the decision in this case. As I have said, Mr. Justice BRENNAN would extend the privilege enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), to publications upon any 'subject of public or general interest.' See ante, at 43. He would thereby extend the constitutional protection to false and damaging, but non-malicious, publications about such matters as the health and environmental hazards of widely used manufactured products, the mental and emotional stability of executives of business establishments, and the racial and religious prejudices of many groups and individuals. All of these are, of course, subjects of real concern, and arguments for placing them within the scope of New York Times are by no means frivolous.
56
For Mr. Justice MARSHALL and Mr. Justice HARLAN, Mr. Justice BRENNAN's opinion is both too severe and too limited. They would make more sweeping incursions into state tort law but purportedly with less destructive weapons. They would permit suit by some plaintiffs barred under Mr. Justice BRENNAN's opinion, but would require all plaintiffs to prove at least negligence before any recovery would be allowed.
57
I prefer at this juncture not to proceed on such a broad front. I am quite sure that New York Times Co. v. Sullivan was the wiser course, but I am unaware that state libel laws with respect to private citizens have proved a hazard to the existence or operations of the communications industry in this country. Some members of the Court seem haunted by fears of self-censorship by the press and of damage judgments that will threaten its financial health. But technology has immeasurably increased the power of the press to do both good and evil. Vast communication combines have been built into profitable ventures. My interest is not in protecting the treasuries of communicators but in implementing the First Amendment by insuring that effective communication which is essential to the continued functioning of our free society. I am not aware that self-censorship has caused the press to tread too gingerly in reporting 'news' concerning private citizens and private affairs or that the reputation of private citizens has received inordinate protection from falsehood. I am not convinced that we must fashion a constitutional rule protecting a whole range of damaging falsehoods and so shift the burden from those who publish to those who are injured.
58
I say this with considerable deference since all my Brethren have contrary views. But I would not nullify a major part of state libel law until we have given the matter the most thorough consideration and can articulate some solid First Amendment grounds based on experience and our present condition. As it is, today's experiment rests almost entirely on theoretical grounds and represents a purely intellectual derivation from what are thought to be important principles of tort law as viewed in the light of the primacy of the written and spoken word.
59
This case lends itself to more limited adjudication. New York Times Co. v. Sullivan itself made clear that discussion of the official actions of public servants such as the police is constitutionally privileged. 'The right of free public discussion of the stewardship of public officials' is, in the language of that case, 'a fundamental principle of the American form of government.' 376 U.S., at 275, 84 S.Ct., at 723. Discussion of the conduct of public officials cannot, however, be subjected to artificial limitations designed to protect others involved in an episode with officials from unfavorable publicity. Such limitations would deprive the public of full information about the official action that took place. In the present case, for example, the public would learn nothing if publication only of the fact that the police made an arrest were permitted; it is also necessary that the grounds for the arrest and, in many circumstances, the identity of the person arrested be stated. In short, it is rarely informative for a newspaper or broadcaster to state merely that officials acted unless he also states the reasons for their action and the persons whom their action affected.
60
Nor can New York Times be read as permitting publications that invade the privacy or injure the reputations of officials, but forbidding those that invade the privacy or injure the reputations of private citizens against whom official action is directed. New York Times gives the broadcasting media and the press the right not only to censure and criticize officials but also to praise them and the concomitant right to censure and criticize their adversaries. To extend constitutional protection to criticism only of officials would be to authorize precisely that sort of thought control that the First Amendment forbids government to exercise.
61
I would accordingly hold that in defamation actions, absent actual malice as defined in New York Times Co. v. Sullivan, the First Amendment gives the press and the broadcast media a privilege to report and comment upon the official actions of public servants in full detail, with no requirement that the reputation or the privacy of an individual involved in or affected by the official action be spared from public view. Since respondent Metromedia did nothing more in the instant case, I join in holding its broadcasts privileged. I would not, however, adjudicate cases not now before the Court.
62
Mr. Justice HARLAN, dissenting.
63
The very facts of this case demonstrate that uncritical acceptance of the Pennsylvania libel law here involved would be inconsistent with those important First and Fourteenth Amendment values we first treated with in an analogous context in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). However, as the plurality opinion implicitly recognizes, only an undiscriminating assessment of those values would lead us to extend the New York Times rule in full force to all purely private libels. My Brother BRENNAN's opinion would resolve the dilemma by distinguishing those private libels that arise out of events found to be of 'public or general concern' from those that do not, and subjecting the former to full-scale application of the New York Times rule.
64
For the reasons set forth in Part I of by Brother MARSHALL's dissent, I cannot agree to such a solution. As he so well demonstrates, the principal failing of the plurality opinion is its inadequate appreciation of the limitations imposed by the legal process in accommondating the tension between state libel laws and the federal constitutional protection given to freedom of speech and press.
65
Once the evident need to balance the values underlying each is perceived, it might seem, purely as an abstract matter, that the most utilitarian approach would be to scrutinize carefully every jury verdict in every libel case, in order to ascertain whether the final judgment leaves fully protected whatever First Amendment values1 transcend the legitimate state interest in protecting the particular plaintiff who prevailed. This seems to be what is done in the plurality opinion. But we did not embrace this technique in New York Times, supra. Instead, as my Brother MARSHALL observes, we there announced a rule of general application, not ordinarily dependent for its implementation upon a case-by-case examination of trial court verdicts. See also my dissent in Time, Inc. v. Pape, 401 U.S. 279, 293, 91 S.Ct. 633, 641, 28 L.Ed.2d 45 (1971). Nor do I perceive any developments in the seven years since we decided New York Times, supra, that suggest our original method should now be abandoned. At least where we can discern generally applicable rules that should balance with fair precision the competing interests at stake, such rules should be preferred to the plurality's approach both in order to preserve a measure of order and predictability in the law that must govern the daily conduct of affairs and to avoid subjecting the press to judicial second-guessing of the newsworthiness of each item they print. Consequently, I fully concur in Part I of Mr. Justice MARSHALL's dissent.
66
Further, I largely agree with the alternative proposals of that dissent. I, too, think that, when dealing with private libel, the States should be free to define for themselves the applicable standard of care so long as they do not impose liability without fault; that a showing of actual damage should be a requisite to recovery for libel; and that it is impermissible, given the substantial constitutional values involved, to fail to confine the amount of jury verdicts in such cases within any ascertainable limits. However, my reasons for so concluding are somewhat different than his, and I therefore reach a different result than he does with respect to the tolerable limits of punitive damages.
67
* I think we all agree on certain core propositions. First, as a general matter, the States have a perfectly legitimate interest, exercised in a variety of ways, in redressing and preventing careless conduct, no matter who is responsible for it, that inflicts actual, measurable injury upon individual citizens. Secondly, there is no identifiable value worthy of constitutional protection in the publication of falsehoods. Third, although libel law provides that truth is a complete defense, that principle, standing alone, is insufficient to satisfy the constitutional interest in freedom of speech and press. For we have recognized that it is inevitable that there will be 'some error in the situation presented in free debate,' Time, Inc. v. Hill, 385 U.S. 374, 406, 87 S.Ct. 534, 551, 17 L.Ed.2d 456 (1967) (opinion of this writer), a process that needs 'breathing space,' NAA CP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963), to flourish, and that 'putting to the pre-existing prejudices of a jury the determination of what is 'true' may effectively institute a system of censorship.' Time, Inc. v. Hill, supra, at 406, 87 S.Ct., at 551.
68
Moreover, any system that punishes certain speech is likely to induce self-censorship by those who would otherwise exercise their constitutional freedom. Given the constitutionally protected interest in unfettered speech, it requires an identifiable, countervailing state interest, consistent with First Amendment values, to justify a regulatory scheme that produces such results. And, because the presence of such values dictates closer scrutiny of this aspect of state tort law than the Fourteenth Amendment would otherwise command, it may well be that certain rules, impervious to constitutional attack when applied to ordinarly human conduct, may have to be altered or abandoned where used to regulate speech. Finally, as determined in New York Times, the constitutional interest in tolerance of falsehood as well as the need to adjust competing societal interests, prohibits, at a minimum, the imposition of liability without fault.
69
The precise standard of care necessary to achieve these goals is, however, a matter of dispute as is the range of penalties a State may prescribe for a breach of that standard. In analyzing these problems it is necessary to begin with a general analytical framework that defines those competing interests that must be reconciled. My Brother MARSHALL's opinion, I think, dwells too lightly upon the nature of the legitimate countervailing interests promoted by the State's libel law and, as a result, overstates the case against punitive damages. Because we deal with a set of legal rules that treat truth as a complete defense it strikes, I think, somewhat wide of the mark to treat the State's interest as one of protecting reputations from 'unjustified invasion.' Post, at 78. By hypothesis, the respondent here was free to reveal any true facts about petitioner's 'obscure private life.'2
70
Given the defense of truth, it is my judgment that, in order to assure that it promotes purposes consistent with First Amendment values, the legitimate function of libel law must be understood as that of compensating individuals for actual, measurable harm caused by the conduct of others. This can best be demonstrated by postulating a law that subjects publishers to jury verdicts for falsehoods that have done the plaintiff no harm. In my view, such a rule can only serve a purpose antithetical to those of the First Amendment. It penalizes speech, not to redress or avoid the infliction of harm, but only to deter the press from publishing material regarding private behavior that turns out to be false simply because of its falsity. This the First Amendment will not tolerate. Where the State cannot point to any tangible danger, even knowingly erroneous publication is entitled to constitutional protection because of the interest in avoiding an inquiry into the mere truth or falsity of speech. Moreover, such a scheme would impose a burden on speaking not generally placed upon constitutionally unprotected conduct—the payment of private fines for conduct which, although not conformed to established limits of care, causes no harm in fact.
71
Conversely, I think that where the purpose and effect of the law are to redress actual and measurable injury to private individuals that was reasonably foreseeable as a result of the publication, there is no necessary conflict with the values of freedom of speech. Just as an automobile negligently driven can cost a person his physical and mental well-being and the fruits of his labor, so can a printing press negligently set. While the First Amendment protects the press from the imposition of special liabilities upon it, '(t)o exempt a publisher, because of the nature of his calling, from an imposition generally exacted from other members of the community, would be to extend a protection not required by the constitutional guarantee.' Curtis Publishing Co. v. Butts, 388 U.S. 130, 160, 87 S.Ct. 1975, 1994, 18 L.Ed.2d 1094 (1967) (opinion of this writer). A business 'is not immune from regulation because it is an agency of the press. The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.' Associated Press v. NLRB, 301 U.S. 103, 132—133, 57 S.Ct. 650, 656, 81 L.Ed. 953 (1937). That the damage has been inflicted by words rather than other instrumentalities cannot insulate it from liability. States may legitimately be required to use finer regulatory tools where dealing with 'speech,' but they are not wholly disabled from exacting compensation for its measurable adverse consequences. If this is not so, it is difficult to understand why governments may, for example, proscribe 'misleading' advertising practices or specify what is 'true' in the dissemination of consumer credit advertisements.
72
Nor does this interest in compensating victims of harmful conduct somehow disappear when the damages inflicted are great. So long as the effect of the law of libel is simply to make publishers pay for the harm they cause, and the standard of care required is appropriately adjusted to take account of the special countervailing interests in an open exchange of ideas, the fact that this may involve the payment of substantial sums cannot plausibly be said to raise serious First Amendment problems. If a newspaper refused to pay its bills because to do so would put it out of business, would the First Amendment dictate that this be treated as a partial or complete defense? If an automobile carrying a newsman to the scene of a history-making event ran over a pedestrian, would the size of the verdict, if based upon generally applicable tort law principles, have to be assessed against the probability that it would deter broadcasters from news gathering before it could pass muster under the First Amendment? However, without foreclosing the possibility that other limiting principles may be surfaced by subsequent experience, I do think that since we are dealing, by hypothesis, with infliction of harm through the exercise of freedom of speech and the press to which the Constitution gives explicit protection, recoverable damages must be limited to those consequences of the publication which are reasonably foreseeable. The usual tort rule seems to be that once some foreseeable injury has been inflicted, the negligent defendant must compensate for all damages he proximately caused in fact, no matter how peculiar were the circumstances of the particular plaintiff involved. W. Prosser, The Law of Torts § 50 (3d ed. 1964). However, our cases establish, I think, that, unless he has knowledge to the contrary, a speaker is entitled to presume that he is addressing an audience that is not especially susceptible to distress at the specter of open, uninhibited, robust speech. Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284. See also Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957). Thus, I think the speaker should be free from a duty to compensate for actual harm inflicted by his falsehoods where the defamation would not have caused such harm to a person of average sensibilities unless, of course, the speaker knew that his statements were made concerning an unusually sensitive person. In short, I think the First Amendment does protect generally against the possibility of self-censorship in order to avoid unwitting affronts to the frail and the queasy.
II
73
Of course, it does not follow that so long as libel law performs the same compensatory function as civil law generally it is necessarily legitimate in all its various applications. The presence of First Amendment values means that the State can be compelled to utilize finer, more discriminating instruments of regulation where necessary to give more careful protection to these countervailing interests. New York Times, supra, and Curtis Publishing Co., supra, established that where the injured party is a 'public figure' or a 'public official,' the interest in freedom of speech dictates that the States forgo their interest in compensating for actual harm, even upon a basis generally applicable to all members of society, unless the plaintiff can show that the injurious publication was false and was made 'with 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.' New York Times, supra, 376 U.S., at 279, 84 S.Ct., at 726. Tacitly recognizing that it would unduly sacrifice the operative legitimate state interests to extend this rule to all cases where the injured party is simply a private individual, the plurality opinion would nevertheless apply it where the publication concerned such a person's 'involvement in an event of public or general concern.' Ante, at 52. I would not overrule New York Times or Curtis Publishing Co. and I do agree, as indicated above, that making liability turn on simple falsity in the purely private libel area is not constitutionally permissible. But I would not construe the Federal Constitution to require that the States adhere to a standard other than that of reasonable care where the plaintiff is an ordinary citizen.
74
My principal concern with the plurality's view, of course, is that voiced by my Brother MARSHALL. However, even if this objection were not tenable, unlike the plurality, I do think there is a difference, relevant to the interests here involved, between the public and the private plaintiff, as our cases have defined these categories, and that maintaining a constitutional distinction between them is at least as likely to protect true First Amendment concerns as one that eradicates such a line and substitutes for it a distinction between matters we think are of true social significance and those we think are not.
75
To begin, it does no violence, in my judgment, to the value of freedom of speech and press to impose a duty of reasonable care upon those who would exercise these freedoms. I do not think it can be gainsaid that the States have a substantial interest in encouraging speakers to carefully seek the truth before they communicate, as well as in compensating persons actually harmed by false descriptions of their personal behavior. Additionally, the burden of acting reasonably in taking action that may produce adverse consequences for others is one generally placed upon all in our society. Thus, history itself belies the argument that a speaker must somehow be freed of the ordinary constraints of acting with reasonable care in order to contribute to the public good while, for example, doctors, accountants, and architects have constantly performed within such bounds.
76
This does not mean that I do not agree with the rule of New York Times, supra, but only that I deem it inapplicable here. That rule was not, I think, born solely of a desire to free speech that would otherwise have been stifled by overly restrictive rules, but also rested upon a determination that the countervailing state interests, described above, were not fully applicable where the subject of the falsehood was a public official or a public figure. For me, it does seem quite clear that the public person has a greater likelihood of securing access to channels of communication sufficient to rebut falsehoods concerning him than do private individuals in this country who do not toil in the public spotlight. Similarly, our willingness to assume that public personalities are more impervious to criticism, and may be held to have run the risk of publicly circulated falsehoods concerning them, does not rest solely upon an empirical assertion of fact, but also upon a belief that, in our political system, the individual speaker is entitled to act upon such an assumption if our institutions are to be held up, as they should be, to constant scrutiny. And, at least as to the 'public official,' it seems to be universally the case that he is entitled to an absolute immunity for what he may utter in response to the charges of others. Where such factors are present the need to provide monetary compensation for defamation appears a good deal more attenuated. Finally, in light of the plurality opinion's somewhat extravagant delineation of the public interest involved in the dissemination of information about nonpublic persons, it bears emphasizing that a primary rationale for extending the New York Times rule to public figures was the desire to reflect, in the constitutional balance, the fact that 'in this country, the distinctions between governmental and private sectors are blurred,' Curtis Publishing Co., supra, 388 U.S., at 163, 87 S.Ct., at 1996 (opinion of Warren, C.J.), and to treat constitutional values as specially implicated where important, albeit nonofficial, policy and behavior were the subjects of discussion. At the very least, this tends to diminish the force of any contention that libelous depictions of non-public persons are often likely to involve matters of abiding public significance.
77
I cannot agree that the First Amendment gives special protection to the press from '(t)he very possibility of having to engage in litigation,' ante, at 52 (opinion of BRENNAN, J.). Were this assertion tenable, I do not see why the States could ever enforce their libel laws. Cf. my Brother BLACK's opinion, ante, at 57. Further, it would certainly cast very grave doubts upon the constitutionality of so-called 'right-of-reply statutes' advocated by the plurality, ante, at 47, n. 15, and ultimately treat the application of any general law to a publisher or broadcaster as an important First Amendment issue. The notion that such an interest, in the context of a purely private libel, is a significant independent constitutional value is an unfortunate consequence of the plurality's single-minded devotion to the task of preventing self-censorship, regardless of the purposes for which such restraint is induced or the evils its exercise tends to avoid.
78
It is, then, my judgment that the reasonable care standard adequately serves those First Amendment values that must inform the definition of actionable libel and that those special considerations that made even this standard an insufficiently precise technique when applied to plaintiffs who are 'public officials' or 'public figures' do not obtain where the litigant is a purely private individual.
III
79
There remains the problem of punitive damages.3 No doubt my Brother MARSHALL is correct in asserting that the specter of being forced to pay out substantial punitive damage awards is likely to induce self-censorship. This would probably also be the case where the harm actually caused is likely to be great. But, as I indicated above, this fact in itself would not justify construing the First Amendment to impose an arbitrary limitation on the amount of actual damages recoverable. Thus, as my Brother MARSHALL would apparently agree—since he, too, proposes no limitation on actual damages—one cannot jump from the proposition that fear of substantial punitive damage awards may be an important factor in inducing self-censorship directly to the result that punitive damages cannot be assessed in all private libel cases. A more particularized inquiry into the nature of the competing interests involved is necessary in order to ascertain whether awarding punitive damages must inevitably, in private libel cases, serve only interests that are incompatible with the First Amendment.
80
At a minimum, even in the purely private libel area, I think the First Amendment should be construed to limit the imposition of punitive damages to those situations where actual malice is proved. This is the typical standard employed in assessing anyone's liability for punitive damages where the underlying aim of the law is to compensate for harm actually caused, see, e.g., 3 L. Frumer et al., Personal Injury § 2.02 (1965); H. Oleck, Damages to Persons and Property § 30 (1955), and no conceivable state interest could justify imposing a harsher standard on the exercise of those freedoms that are given explicit protection by the First Amendment.
81
The question then arises whether further limitations on this general state power must be imposed in order to serve the particularized goals of the First Amendment. The most compelling rationale for providing punitive damages where actual malice is shown is that such damages assure that deterrent force is added to the jury's verdict. If the speaker's conduct was quite likely to produce substantial harm, but fortuitously did not, simple assessment of actual damages will not fully reflect the social interest in deterring that conduct generally. Further, even if the harm done was great the defendant may have unusually substantial resources that make the award of actual damages a trivial inconvenience of no actual deterrent value. And even where neither of these factors obtains, the State always retains an interest in punishing more severely conduct that, although it causes the same effect, is more morally blameworthy. For example, consider the distinction between manslaughter and first-degree murder.
82
I find it impossible to say, at least without further judicial experience in this area, that the First Amendment interest in avoiding self-censorship will always outweigh the state interest in vindicating these policies. It seems that a legislative choice is permissible which, for example, seeks to induce, through a reasonable monetary assessment, repression of false material, published with actual malice, that was demonstrably harmful and reasonably thought capable of causing substantial harm, but, in fact, was not so fully injurious to the individual attacked. Similarly, the State surely has a legitimate interest in seeking to assure that its system of compensating victims of negligent behavior also operates upon all as an inducement to avoidance of such conduct. And, these are burdens that are placed on all members of society, thus permitting the press to escape them only if its interest is somehow different in this regard.
83
However, from the standpoint of the individual plaintiff such damage awards are windfalls. They are, in essence, private fines levied for purposes that may be wholly unrelated to the circumstances of the actual litigant. That fact alone is not, I think, enough to condemn them. The State may, as it often does, use the vehicle of a private lawsuit to serve broader public purposes. It is noteworthy that my Brother MARSHALL does not rest his objection to punitive damages upon these grounds. He fears, instead, the self-censorship that may flow from the unbridled discretion of juries to set the amount of such damages. I agree that where these amounts bear no relationship to the actual harm caused, they then serve essentially as springboards to jury assessment, without reference to the primary legitimating compensatory function of the system, of an infinitely wide range of penalties wholly unpredictable in amount at the time of the publication and that this must be a substantial factor in inducing self-censorship. Further, I find it difficult to fathom why it may be necessary, in order to achieve its justifiable deterrence goals, for the States to permit punitive damages that bear no discernible relationship to the actual harm caused by the publication at issue. A rational determination of the injury a publication might potentially have inflicted should typically proceed from the harm done in fact. And where the compensatory scheme seeks to achieve deterrence as a subsidiary by-product, the desired deterrence, if not precisely measured by actual damages, should be informed by that touchstone if deterrence of falsehood is not to replace compensation for harm as the paramount goal. Finally, while our legal system does often mete out harsher punishment for more culpable acts, it typically begins with a gradation of offenses defined in terms of effects. Compare, for example, larceny with murder. It is not surprising, then, that most States apparently require that punitive damages in most private civil actions bear some reasonable relation to the actual damages awarded, Oleck, at § 275, Pennsylvania included, Weider v. Hoffman, 238 F.Supp. 437, 444—447 (MD Pa.1965).
84
However, where the amount of punitive damages awarded bears a reasonable and purposeful relationship to the actual harm done, I cannot agree that the Constitution must be read to prohibit such an award. Indeed, as I understand it, my Brother MARSHALL's objection to my position4 is not that the interest in freedom of speech dictates eliminating such judgments, but that this result is compelled by the need to avoid involving courts in an 'ad hoc balancing' of 'the content of the speech and the surrounding circumstances,' post, at 86, 85, much like that undertaken today in Part VI of the plurality opinion, the same technique criticized in my dissent in Time, Inc. v. Pape, supra. I find this argument unpersuasive. First, I do not see why my proposed rule would necessarily require frequent judicial reweighing of the facts underlying each jury verdict. A carefully and properly instructed jury should ordinarily be able to arrive at damage awards that are self-validating. It is others, not I, who have placed upon the federal courts the general duty of reweighing jury verdicts regarding the degree of fault demonstrated in libel actions. Further, to the extent that supervision of jury verdicts would be required it would entail a different process from that undertaken where judges redetermine the degree of fault. The defendant's resources, the actual harm suffered by the plaintiff, and the publication's potential for actual harm are all susceptible of more or less objective measurement. And the overriding principle that deterrence is not to be made a substitute for compensation should serve as a useful mechanism for adjusting the equation. Finally, even if some marginal 'ad hoc balancing' becomes necessary, I should think it the duty of this Court at least to attempt to implement such a process before preempting, for itself, all state power in this regard.5
85
In sum, given the fact that it seems to reflect the majority rule, that most of our jurisprudence proceeds upon the premise that legislative purposes can be achieved by fitting the punishment to the crime, and since we deal here with a precise constitutional interest that may legitimately require the States to resort to more discriminating regulation within a more circumscribed area of permissible concern, I would hold unconstitutional, in a private libel case, jury authority to award punitive damages which is unconfined by the requirement that these awards bear a reasonable and purposeful relationship to the actual harm done. Conversely, where the jury authority has been exercised within such constraints, and the plaintiff has proved that the speaker acted out of express malice, given the present state of judicial experience, I think it would be an unwarranted intrusion into the legitimate legislative processes of the States and an impermissibly broad construction of the First Amendment to nullify that state action.
86
Because the Court of Appeals adjudicated this case upon principles wholly unlike those suggested here, I would vacate the judgment below and remand the case for further proceedings consistent with the views expressed herein.
87
Mr. Justice MARSHALL, with whom Mr. Justice STEWART joins, dissenting.
88
Here, unlike the other cases involving the New York Times1 doctrine, we are dealing with an individual who held no public office, who had not taken part in any public controversy, and who lived an obscure private life.2 George Rosenbloom, before the events and reports of the events involved here, was just one of the millions of Americans who live their lives in obscurity.
89
The protection of the reputation of such anonymous persons 'from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty.' Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 679, 15 L.Ed.2d 597 (1966) (Stewart, J., concurring). But the concept of a citizenry informed by a free and unfettered press is also basic to our system of ordered liberty. Here these two essential and fundamental values conflict.
90
* The plurality has attempted to resolve the conflict by creating a conditional constitutional privilege for defamation published in connection with an event that is found to be of 'public or general concern.' The condition for the privilege is that the defamation must not be published 'with knowledge that it was false or with reckless disregard of whether it was false or not.' I believe that this approach offers inadequate protection for both of the basic values that are at stake.
91
In order for particular defamation to come within the privilege there must be a determination that the event was of legitimate public interest. That determination will have to be made by courts generally and, in the last analysis, by this Court in particular. Courts, including this one, are not annointed with any extraordinary prescience. But, assuming that under the rule announced by Mr. Justice BRENNAN for the plurality, courts are not simply to take a poll to determine whether a substantial portion of the population is interested or concerned in a subject, courts will be required to somehow pass on the legitimacy of interest in a particular event or subject; what information is relevant to self-government. See Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). The danger such a doctrine portends for freedom of the press seems apparent.
92
The plurality's doctrine also threatens society's interest in protecting private individuals from being thrust into the public eye by the distorting light of defamation. This danger exists since all human events are arguably within the area of 'public or general concern.' My Brother BRENNAN does not try to provide guidelines or standards by which courts are to decide the scope of public concern. He does, however, indicate that areas exist that are not the proper focus of public concern, and cites Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). But it is apparent that in an era of a dramatic threat of over-population and one in which previously accepted standards of conduct are widely heralded as outdated, even the intimate and personal concerns with which the Court dealt in that case cannot be said to be outside the area of 'public or general concern.' The threats and inadequacies of using the plurality's conditional privilege to resolve the conflict between the two basic values involved here have been illustrated by the experience courts have had in trying to deal with the right of privacy. See Cohen, A New Niche for the Fault Principle: A Forthcoming Newsworthiness Privilege in Libel Cases?, 18 U.C.L.A.L.Rev. 371, 379—381 (1970); Kalven, Privacy in Tort Law—Were Warren and Brandeis Wrong?, 31 Law & Contemp.Prob. 326, 336 (1966). The authors of the most famous of all law review articles recommended that no protection be given to privacy interests when the publication dealt with a 'matter which is of public or general interest.' Warren & Brandeis, The Right to Privacy, 4 Harv. L.Rev. 193, 214 (1890). Yet cases dealing with this caveat raise serious questions whether it has substantially destroyed the right of privacy as Warren and Brandeis envisioned it.3 For example, the publication of a picture of the body of plaintiff's daughter immediately after her death in an automobile accident was held to be protected. Kelley v. Post Publishing Co., 327 Mass. 275, 98 N.E.2d 286 (1951). And the publication of the details of the somewhat peculiar behavior of a former child prodigy, who had a passion for obscurity, was found to involve a matter of public concern. Sidis v. F-R Pub. Corp. 113 F.2d 806 (CA2 1940).
93
In New York Times the Court chose to balance the competing interests by seeming to announce a generally applicable rule. Here it is apparent that the general rule announced cannot have general applicability. The plurality's conditional privilege approach, when coupled with constitutionalizing of the factfinding process,4 see Part VI of Mr. Justice BRENNAN's opinion, results in the adoption of an ad hoc balancing of the two interests involved. The Court is required to weigh the nuances of each particular circumstances on its scale of values regarding the relative importance of society's interest in protecting individuals from defamation against the importance of a free press. This scale may arguably be a more finely tuned instrument in a particular case. But whatever precision the ad hoc method supplies is achieved at a substantial cost in predictability and certainty. Moreover, such an approach will require this Court to engage in a constant and continuing supervision of defamation litigation throughout the country. See Time, Inc. v. Pape, 401 U.S. 279, 293, 91 S.Ct. 633, 641, 28 L.Ed.2d 45 (1971) (Harlan, J., dissenting); Curtis Publishing Co. v. Butts, 388 U.S. 130, 171, 87 S.Ct. 1975, 1999—2000, 18 L.Ed.2d 1094 (1967) (opinion of Black, J.).
94
Undoubtedly, ad hoc balancing may be appropriate in some circumstances that involve First Amendment problems. See, e.g., Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). But in view of the shortcomings of my Brother BRENNAN's test, defamation of a private individual by the mass media is not one of the occasions for unfettered ad hoc balancing. A generally applicable resolution is available that promises to provide an adequate balance between the interest in protecting individuals from defamation and the equally basic interest in protecting freedom of the press.
II
95
As the plurality recognizes here and as was recognized as the basic premise of the New York Times principle, the threat that defamation law presents for the values encompassed in the concept of freedom of the press is that of self- censorship.5 Our notions of liberty require a free and vigorous press that presents what it believes to be information of interest or importance; not timorous, afraid of an error that leaves it open to liability for hundreds of thousands of dollars. The size of the potential judgment that may be rendered against the press must be the most significant factor in producing self-censorship—a judgment like the one rendered against Metromedia would be fatal to many smaller publishers.6
96
The judgments that may be entered in defamation cases are unlike those that may be entered in most litigation since the bulk of the award is given to punish the defendant or to compensate for presumed damages. Here the jury awarded Mr. Rosenbloom $725,000 in punitive damages.7 This huge sum was given not to compensate him for any injury but to punish Metromedia. The concept of punitive or exemplary damages was first articulated in Huckle v. Money, 2 Wils. 205, 95 Eng.Rep. 768 (K.B. 1763)—one of the general warrant cases. There Lord Camden found that the power to award such damages was inherent in the jury's exercise of uncontrolled discretion in the awarding of damages. See 1 T. Sedgwick, Damages §§ 347—350 (9th ed. 1912). Today these damages are rationalized as a way to punish the wrongdoer and to admonish others not to err. See Morris, Punitive Damages in Tort Cases, 44 Harv.L.Rev. 1172 (1931). Thus they serve the same function as criminal penalties and are in effect private fines. Unlike criminal penalties, however, punitive damages are not awarded within discernible limits but can be awarded in almost any amount. Since there is not even an attempt to offset any palpable loss and since these damages are the direct product of the ancient theory of unlimited jury discretion, the only limit placed on the jury in awarding punitive damages is that the damages not be 'excessive,' and in some jurisdictions, that they bear some relationship to the amount of compensatory damages awarded.8 See H. Oleck, Damages to Persons and Property § 275, pp. 557—560 (1955). The manner in which unlimited discretion may be exercised is plainly unpredictable. And fear of the extensive awards that may be given under the doctrine must necessarily produce the impingement on freedom of the press recognized in New York Times.
97
In addition to the huge awards that may be given under the label of punitive or exemplary damages, other doctrines in the law of defamation allow substantial damages without even an offer of evidence that there was actually injury. See Montgomery v. Dennison, 363 Pa. 255, 69 A.2d 520 (1949); Restatement of Torts § 621 (1938). These doctrines create a legal presumption that substantial injuries 'normally flow' from defamation. There is no requirement that there be even an offer of proof that there was in fact financial loss, physical or emotional suffering, or that the plaintiff's standing in the community was diminished. The effect is to give the jury essentially unlimited discretion and thus to give much the same power it exercises under the labels of punitive or exemplary damages. The impingement upon free speech is the same no matter what label is attached.
98
The unlimited discretion exercised by juries in awarding punitive and presumed damages compounds the problem of self-censorship that necessarily results from the awarding of huge judgments. This discretion allows juries to penalize heavily the unorthodox and the unpopular and exact little from others. Such free wheeling discretion presents obvious and basic threats to society's interest in freedom of the press. And the utility of the discretion in fostering society's interest in protecting individuals from defamation is at best vague and uncertain. These awards are not to compensate victims; they are only windfalls. Certainly, the large judgments that can be awarded admonish the particular defendant affected as well as other potential transgressors not to publish defamation. The degree of admonition the amount of the judgment in relation to the defamer's means—is not, however, tied to any concept of what is necessary to deter future conduct nor is there even any way to determine that the jury has considered the culpability of the conduct involved in the particular case. Thus the essence of the discretion is unpredictability and uncertainty.
99
The threats to society's interest in freedom of the press that are involved in punitive and presumed damages can largely be eliminated by restricting the award of damages to proved, actual injuries. The jury's wide-ranging discretion will largely be eliminated since the award will be based on essentially objective, discernible factors. And the self-censhorship that results from the uncertainty created by the discretion as well as the self-censorship resulting from the fear of large judgments themselves would be reduced. At the same time, soceity's interest in protecting individuals from defamation will still be fostered. The victims of the defamation will be compensated for their real injuries. They will not be, however, assuaged far beyond their wounds. And, there will be a substantial although imprecise and imperfect admonition to avoid future defamation by imposing the requirement that there be compensation for actual damages.
100
My Brother HARLAN argues that it is unnecessary to go so far. Although he recognizes the dangers involved in failing 'to confine the amount of jury verdicts * * * within any ascertainable limits,' Mr. Justice HARLAN suggests that on a finding of actual malice punitive damages may be awarded if they 'bear a reasonable and purposeful relationship to the actual harm done.' My Brother HARLAN envisions jurors being instructed9 to consider the deterrent function of punitive damages and to try to gear the punitive damages awarded in some undetermined way to actual injury. Apparently, the jury under the supervision of the court would weigh the content of the speech and the surrounding circumstances—inter alia, the position of the plaintiff, the wealth of the defendant, and the nature of the instrument of publication—on the scale of their values and determine what amount is necessary in light of the various interests involved. Since there would be no objective standard by which to measure the jury's decision there would be no predetermined limit of jury discretion and all of the threats to freedom of the press involved in such discretion would remain. The chant of some new incantation will, of course, provide clear authority for a court to substitute its values for the jury's and remake the decision. If this is what my Brother HARLAN envisions, he is merely moving the ad hoc balancing from the question of fault to the question of damages.
101
I believe that the appropriate resolution of the clash of societal values here is to restrict damages to actual losses. See Hill, The Bill of Rights and the Supervisory Power, 69 Col.L.Rev. 181, 191 n. 62 (1969). Of course, damages can be awarded for more than direct pecuniary loss but they must be related to some proved harm. See Wright, Defamation, Privacy, and the Public's Right to Know: A National Problem and a New Approach, 46 Tex.L.Rev. 630, 648 (1968). If awards are so limited in cases involving private individuals—persons first brought to public attention by the defamation that is the subject of the lawsuit—it will be unnecessary to rely, as both the plurality and to some extent Mr. Justice HARLAN do, on somewhat clusive concepts10 of the degree of fault, and unnecessary, for constitutional purposes, to engage in ad hoc balancing of the competing interests involved.11 States would be essentially free to continue the evolution of the common law of defamation and to articulate whatever fault standard best suits the State's need.12
102
The only constitutional caveat should be that absolute or strict liability, like uncontrolled damages and private fines, cannot be used.13 The effect of imposing liability without fault is to place 'the printed, written or spoken word in the same class with the use of explosives or the keeping of dangerous animals.' W. Prosser, The Law of Torts § 108, p. 792 (3d ed. 1964). Clearly, this is inconsistent with the concepts of freedom of the press.
103
Thus in this case I would reverse the judgment of the Court of Appeals for the Third Circuit and remand the case for a determination of whether Mr. Rosenbloom can show any actual loss.
1
See, e.g., Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (retired Army general against a wire service); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (former football coach against pub-
lisher of magazine); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967) (court clerk against newspaper); Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970) (state representative and real estate developer against publisher of newspaper); Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 91 S.Ct. 628, 28 L.Ed.2d 57 (1971) (defeated candidate for tax assessor against publisher of newspaper); Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971) (candidate for United States Senate against publisher of newspaper); Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971) (police official against publisher of magazine). However, Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), involved an action against a newspaper columnist by a former county recreation area supervisor; St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), involved an action of a deputy sheriff against a defeated candidate for the United States Senate; and Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), involved an action by an official of an employer against a labor union.
Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), held that the New York Times standard measured also the constitutional restriction upon state power to impose criminal sanctions for criticism of the official conduct of public officials. The Times standard of proof has also been required to support the dismissal of a public school teacher based on false statements made by the teacher in discussing issues of public importance. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The same test was applied to suits for invasion of privacy based on false statements where, again, a matter of public interest was involved. Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967). The opinion in that case expressly reserved the question presented here whether the test applied in a libel action brought by a private individual. Id., at 391, 87 S.Ct. at 543—544.
2
This term is from Warren & Brandeis, The Rights to Privacy, 4 Harv.L.Rev. 193, 214 (1890). Our discussion of matters of 'public or general interest' appears in Part IV, infra, of this opinion.
3
Petitioner does not question that the First Amendment guarantees of freedom of speech and freedom of the press apply to respondent's newscasts.
4
At trial, Captain Ferguson testified that his definition of obscenity was 'anytime the private parts is showing of the female or the private parts is shown of males.'
5
Several more newsstand operators were arrested between October 1 and October 4.
6
The record neither confirms nor refutes petitioner's contention that his arrest was fortuitous. Nor does the record reflect whether or not petitioner's magazines were the subject either of the original citizens' complaints or of the initial police purchases.
7
The complaint named as defendants the publishers of two newspapers, a television station, the city of Philadelphia, and the district attorney, but not respondent WIP. The plaintiffs were petitioner, the partnership of himself and his wife which carried on the business, and the publisher of the nudist magazines that he distributed.
8
The text of the final broadcast read as follows:
'U.S. District Judge John Lord told WIP News just before airtime that it may be another week before he will be able to render a decision as to whether he has jurisdiction in the case of two publishers and a distributor who wish to restrain the D.A.'s office, the police chief, a TV station and the Bulletin for either making alleged raids of their publications, considered smut and immoral literature by the defendants named, or publicizing that they are in that category. Judge Lord then will be a position to rule on injunction proceedings asked by the publishers and distributor claiming the loss of business in their operations.'
9
The reference here, of course, is to common-law 'malice,' not to the constitutional standard of New York Times Co. v. Sullivan, supra. See n. 18, infra.
10
Pa.Stat.Ann., Tit. 12, § 1584a (Supp.1971) provides:
'(1) In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:
'(a) The defamatory character of the communication;
'(b) Its publication by the defendant;
'(c) Its application to the plaintiff;
'(d) The recipient's understanding of its defamatory meaning;
'(e) The recipient's understanding of it as intended to be applied to the plaintiff;
'(f) Special harm resulting to the plaintiff from its publication;
'(g) Abuse of a conditionally privileged occasion.
'(2) In an action for defamation, the defendant has the burden of proving, when the issue is properly raised:
'(a) The truth of the defamatory communication;
'(b) The privileged character of the occasion on which it was published;
'(c) The character of the subject matter of defamatory comment as of public concern.'
See Restatement of Torts § 613.
11
For example, the public's interest in the provocative speech that was made during the tense episode on the campus of the University of Mississippi would certainly have been the same in Associated Press v. Walker, n. 1, supra, if the speaker had been an anonymous student and not a well-known retired Army general. Walker also illustrates another anomaly of focusing analysis on the public 'figure' or public 'official' status of the individual involved. General Walker's fame stemmed from events completely unconnected with the episode in Mississippi. It seems particularly unsatisfactory to determine the extent of First Amendment protection on the basis of factors completely unrelated to the newsworthy events being reported. See also Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970).
12
We are not to be understood as implying that no area of a person's activities falls outside the area of public or general interest. We expressly leave open the question of what constitutional standard of proof, if any, controls the enforcement of state libel laws for defamatory falsehoods published or broadcast by news media about a person's activities not within the area of public or general interest.
We also intimate no view on the extent of constitutional protection, if any, for purely commercial communications made in the course of business. See Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). Compare Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951), with Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943). But see New York Times Co. v. Sullivan, 376 U.S., at 265—266, 84 S.Ct., at 718; Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966).
13
Our Brother WHITE states in his opinion: '(T)he First Amendment gives * * * the privilege to report * * * the official actions of public servants in full detail, with no requirement that * * * the privacy of an individual involved in * * * the official action be spared from public view.' Post, at 62. This seems very broad. It implies a privilege to report, for example, such confidential records as those of juvenile court proceedings.
14
See United Medical Laboratories, Inc. v. Columbia Broadcasting System, Inc., 404 F.2d 706 (CA9 1968), cert. denied, 394 U.S. 921, 89 S.Ct. 1197, 22 L.Ed.2d 454 (1969); Time, Inc. v. McLaney, 406 F.2d 565 (CA5), cert. denied, 365 U.S. 922, 89 S.Ct. 1776, 23 L.Ed.2d 239 (1969); Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 861 n. 4, and cases cited therein (CA5 1970). See generally Cohen, A New Niche for the Fault Principle: A Forthcoming Newsworthiness Privilege in Libel Cases?, 18 U.C.L.A.L.Rev. 371 (1970); Kalven, The Reasonable Man and the First Amendment: Hill, Butts, and Walker, 1967 Sup.Ct.Rev. 267; Note, Public Official and Actual Malice Standards: The Evolution of New York Times Co. v. Sullivan, 56 Iowa L.Rev. 393, 398—400 (1970); Note, The Scope of First Amendment Protection for Good-faith Defamatory Error, 75 Yale L.J. 642 (1966).
15
Some States have adopted retraction statutes or right-of-reply statutes. See Donnelly, The Right of Reply: An Alternative to an Action for Libel, 34 Va.L.Rev. 867 (1948); Note, Vindication of the Reputation of a Public Official, 80 Harv.L.Rev. 1730 (1967). Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969).
One writer, in arguing that the First Amendment itself should be read to guarantee a right of access to the media not limited to a right to respond to defamatory falsehoods, has suggested several ways the law might encourage public discussion. Barron, Access to the Press—A New First Anemdment Right, 80 Harv.L.Rev. 1641 1666 1678 (1967). It is important to recognize that the private individual often desires press exposure either for himself, his ideas, or his causes. Constitutional adjudication must take into account the individual's interest in access to the press as well as the individual's interest in preserving his reputation, even though libel actions by their nature encourage a narrow view of the individual's interest since they focus only on situations where the individual has been harmed by undesired press attention. A constitutional rule that deters the press from covering the ideas or activities of the private individual thus conceives the individual's interest too narrowly.
16
This is not the less true because the area of public concern in the cases of candidates for public office and of elected public officials is broad. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971).
17
Our Brothers HARLAN and MARSHALL would not limit the application of the First Amendment to private libels involving issues of general or public interest. They would hold that the Amendment covers all private libels at least where state law permits the defense of truth. The Court has not yet had occasion to consider the impact of the First Amendment on the application of state libel laws to libels where no issue of general or public interest is involved. See n. 1, supra. However, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), recognized a constitutional right to privacy and at least one commentator has discussed the relation of that right to the First Amendment. Emerson, supra, at 544—562. Since all agree that this case involves an issue of public or general interest, we have no occasion to discuss that relationship. See n. 12, supra. We do not, however, share the doubts of our Brothers HARLAN and MARSHALL that courts would be unable to identify interests in privacy and dignity. The task may be difficult but not more so than other tasks in this field.
18
At oral argument petitioner argued that 'the little man can't show actual malice. How can George Rosenbloom show that there was actual malice in Metromedia? They never heard of him before.' Tr. of Oral Arg., Dec. 8, 1970, p. 39. But ill will toward the plaintiff, or bad motives, are not elements of the New York Times standard. That standard requires only that the plaintiff prove knowing or reckless falsity. That burden, and no more, is the plaintiff's whether 'public official,' 'public figure,' or 'little man.' It may be that jury instructions that are couched only in terms of knowing or reckless falsity, and omit reference to 'actual malice,' would further a proper application of the New York Times standard to the evidence.
19
The instructions authorized an award of punitive damages upon a finding that a falsehood 'arose from a bad motive or * * * that it was published with reckless indifference to the truth * * * punitive damages are awarded as a deterrent from future conduct of the same sort.' App. 333a. The summation of petitioner's counsel conceded that respondent harbored no ill-will toward petitioner, but, following the suggestion of the instructions that punitive damages are "smart' money,' App. 313a, argued that they should be assessed because '(respondent) must be careful the way they impart news information and you can punish them if they weren't because you could say that was malicious.' Ibid. This was an obvious invitation based on the instructions to award punitive damages for carelessness. Thus the jury was allowed, and even encouraged, to find malice and award punitive damages merely on the basis of negligence and bad motive.
1
Of course, for me, this case presents a Fourteenth, not a purely First, Amendment issue, for the question is one of the constitutionality of the applicable Pennsylvania libel laws. However, I have found it convenient, in the course of this opinion, occasionally to speak directly of the First Amendment as a shorthand phrase for identifying those constitutional values of freedom of expression guaranteed to individuals by the Due Process Clause of the Fourteenth Amendment.
2
I would expressly reserve, for a case properly presenting it, the issue whether the New York Times rule should have any effect on 'privacy' litigation. The problem is briefly touched upon in Time, Inc. v. Hill, 385 U.S. 374, 404—405, 87 S.Ct. 534, 550—551, 17 L.Ed.2d 456 (1967) (Harlan, J., concurring and dissenting).
3
The conclusions I reach in Part III of this opinion are somewhat different from those I embraced four Terms age in Curtis Publishing Co., supra, 388 U.S., at 159—161, 87 S.Ct., at 1993 1995. Where matters are in flux, however, it is more important to re-think past conclusions than to adhere to them without question and the problem under consideration remains in a state of evolution, as is attested to by all the opinions filed today. Reflection has convinced me that my earlier opinion painted with somewhat too broad a brush and that a more precise balancing of the conflicting interests involved is called for in this delicate area.
4
Of course, I do not envision that, consistently with my views, the States could only exact some predetermined multiple of the actual damages found. I should think a jury could simply be instructed, along the lines set out in my opinion, on the legitimate uses of the punitive damage award and the necessity for relating any such judgment to the harm actually done.
5
The plurality opinion states that the 'real thrust' of my position is that it 'will not 'constitutionalize' the factfinding process.' Ante, at 53. In fact, I have attempted to demonstrate throughout this opinion that I believe the positions of my Brothers BRENNAN, BLACK, and MARSHALL all, in varying degrees, overstate the extent to which libel law is incompatible with the constitutional guarantee of freedom of expression, and have pointed out that I think my views have merit 'even if (the objection noted in my Brother MARSHALL's opinion) were not tenable.' Supra, at 69. Moreover, the assertion that an inquiry into whether actual damages were suffered 'will involve judges even more deeply in factfinding,' ante, at 53, than ascertaining whether 'the defendant in fact entertained serious doubts as to the truth of his publication,' ante, at 56, or whether the publication involved 'an event of public or general concern,' ante, at 52, seems to me to carry its own refutation. The former focuses on measurable, objective fact; the latter upon subjective, personal belief. Finally, I cannot see why juries may not typically be entrusted responsibility to determine whether a publisher was negligent, a function they perform in judging the harmful conduct of most other members of society; or why it should be materially more difficult for judges to oversee such decisions where a speaker, rather than any other actor, is a defendant.
1
New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
2
See, e.g., Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967); Greenbelt Cooperative Pub. Assn. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970); Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966).
3
For cases in which the courts have protected the privacy of persons involved in dramatic public events see Man v. Rio Grande Oil, Inc., 28 F.Supp. 845 (ND Cal.1939), and Melvin v. Reid, 112 Cal.App. 285, 297 P. 91 (1931).
4
See Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971).
5
New York Times Co. v. Sullivan, 376 U.S., at 279, 84 S.Ct., at 725—726.
6
The jury awarded Mr. Rosenbloom $25,000 in general damages and $725,000 in punitive damages. The District Court reduced the punitive damages to $250,000 on remittitur.
7
See n. 6, supra.
8
Most jurisdictions in this country recognize the concept of punitive or exemplary damages. Four States—Illinois, Massachusetts, Nebraska, and Washington—apparently do not recognize the doctrine. In Louisiana and Indiana the doctrine has limited applicability. See H. Oleck, Damages to Persons and Property § 269, p. 541 (1955).
9
'(A) jury instruction is not abracadabra. It is not a magical incantation, the slightest deviation from which will break the spell. Only its poorer examples are formalistic codes recited by a trial judge to please appellate masters. At its best, it is simple, rugged communication from a trial judge to a jury of ordinary people, entitled to be appraised in terms of its net effect.' Time, Inc. v. Hill, 385 U.S. 374, 418, 87 S.Ct. 534, 557, 17 L.Ed.2d 456 (1967) (Fortas, J., dissenting).
10
See n. 9, supra.
11
Of course, reliance on limiting awards to compensation for actual loss will require some review of the facts of particular cases. But that review will be limited to essentially objectively determinable issues; the contents of the publication will not have to be considered.
12
Leaving States free to impose liability when defamation is found to be the result of negligent conduct, should make it somewhat more likely that a private person will have a meaningful forum in which to vindicate his reputation. If the standard of care is higher, it would seem that publishers will be more likely to assert the defense of truth than simply contend that they did not breach the standard.
13
Strict liability for defamation was first clearly established in Jones v. E. Hulton & Co., (1909) 2 K.B. 444 (aff'd, (1910) A.C. 20. See Smith, Jones v. Hulton: Three Conflicting Judicial Views As to a Question of Defamation, 60 U.Pa.L.Rev. 365, and 461 (1912). The standard has been applied in many jurisdictions in this country. See, e.g., Upton v. Times-Democrat Publishing Co., 104 La. 141, 28 So. 970 (1900); Laudati v. Stea, 44 R.I. 303, 117 A. 422 (1922); Taylor v. Hearst, 107 Cal. 262, 40 P. 392 (1895). See also Restatement of Torts § 582, comment g (1938). Liability without fault has not been applied, however, in Pennsylvania. See Summit Hotel Co. v. National Broadcasting Co., 336 Pa. 182, 8 A.2d 302 (1939), Pa.Stat.Ann., Tit. 12, § 1583 (1953).
| 23
|
403 U.S. 274
91 S.Ct. 1909
29 L.Ed.2d 473
AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, etc., et al., Petitioners,v.Wilson P. LOCKRIDGE.
No. 76.
Argued Dec. 15, 1970.
Decided June 14, 1971.
Rehearing Denied Oct. 12, 1971.
See 92 S.Ct. 24.
Syllabus
Respondent, who had been discharged from employment on the ground that he had forfeited his good standing membership in petitioner Union by dues arrearage and was therefore subject to termination under the union security clause in the applicable collective-bargaining agreement, brought suit in the state court against the Union and the employer (which was later dropped as a party). The two-count complaint charged (1) that the Union in suspending respondent from membership, which resulted in his loss of employment, acted wrongfully and deprived respondent of the employment with his employer that accrued to him and would accrue to him by reason of his employment, seniority, and experience, and (2) that by the suspension in violation of the Union's constitution and general laws (which constituted a contract between respondent as a union member and the Union) the the Union had breached its contract with respondent. The trial court, rejecting the Union's contention that the complaint charged the commission of an unfair labor practice within the exclusive jurisdiction of the National Labor Relations Board (NLRB), held that it had jurisdiction under International Ass'n of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018, concluded that there had been a breach of contract, for which it awarded money damages for lost wages, and ordered respondent restored to union membership. The Idaho Supreme Court, which also ordered respondent's seniority rights restored, affirmed by a divided vote, concluded that, although the Union's conduct 'did most certainly' violate §§ 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act and 'probably caused the employer to violate § 8(a)(3),' the state courts had jurisdiction because the complaint charged a breach of contract rather than an unfair labor practice; state courts in interpreting contract terms deal with different conduct than would the NLRB in deciding whether a union is discriminating against a member; and Gonzales, supra, constitutes an exception that permits state courts to exercise jurisdiction in a case like this. Held: 1. Respondent's complaint that the Union had wrongfully interfered with his employment relation involved a matter that was arguably protected by § 7 or prohibited by § 8 of the National Labor Relations Act and thus was within the exclusive jurisdiction of the NLRB. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775. Pp. 285—291.
2. The reasons relied on for the assumption of state court jurisdiction in this case do not suffice to overcome the factors on which the pre-emption doctrine of Garmon was predicated, viz., the congressional purpose for effectuating a comprehensive national labor policy to be administered by an expert central agency rather than by a federalized judicial system; the necessity for carrying out that labor policy without specific congressional direction or judicial resolution on a case-by-case basis; and the avoidance of different treatment of the judicial power to deal with conduct that the Act protects from that which the Act prohibits. Pp. 285—297.
(a) Since pre-emption is designed to shield the system from conflicting regulation of conduct, the formal description of that conduct (here the characterization that a breach of contract was involved) is immaterial. Pp. 291-292.
(b) Since the conduct here was arguably protected by § 7 or prohibited by § 8 of the Act, the substantial interests sought to be protected by the pre-emption doctrine are directly involved, and the fact that the Union may have misconstrued its own rules in this case would not be treated by the NLRB as a defense to a claimed violation of § 8(b)(2). Pp. 292—293.
(c) The Gonzales case 'was focused on purely internal union matters' and the state courts only had to consider the union's constitution and bylaws, whereas respondent's case turned on the construction of the applicable union security clause, as to which federal concern is pervasive and its regulation complex. Pp. 293 297.
3. Respondent's contention that his action is excepted from the Garmon principle as being a suit for the enforcement of a collective-bargaining agreement is without merit since respondent specifically dropped the employer as a defendant, as is his alternative contention that his suit is essentially one to redress the Union's breach of its duty of fair representation, for to sustain such a claim respondent would have to prove 'arbitrary or bad faith conduct on the part of the union,' whereas the Idaho Supreme Court found only that the Union had misinterpreted the contract. Pp. 298—301.
93 Idaho 294, 460 P.2d 719, reversed.
Isaac N. Groner, Washington, D.C., for petitioners.
John L. Kilcullen, Washington, D.C., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), established the general principle that the National Labor Relations Act pre-empts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the Act. That decision represents the watershed in this Court's continuing effort to mark the extent to which the maintenance of a general federal law of labor relations combined with a centralized administrative agency to implement its provisions necessarily supplants the operation of the more traditional legal processes in this field. We granted certiorari in this case, 397 U.S. 1006, 90 S.Ct. 1232, 25 L.Ed.2d 419 (1970), because the divided decision of the Idaho Supreme Court demonstrated the need for this Court to provide a fuller explication of the premises upon which Garmon rests and to consider the extent to which that decision must be taken to have modified or superseded this Court's earlier efforts to treat with the knotty pre-emption problem.
2
* Respondent, Wilson P. Lockridge, has obtained in the Idaho courts a judgment for $32,678.56 against petitioners, Northwest Division 1055 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America and its parent international association,1 on the grounds that, in procuring Lockridge's discharge from employment, pursuant to a valid union security clause in the applicable collective-bargaining agreement, the Union breached a contractual obligation embodied in the Union's constitution and bylaws.
3
From May 1943 until November 2, 1959, Lockridge was a member of petitioner Union and employed within the State of Idaho as a bus driver for Western Greyhound Lines, or its predecessor. At the time of Lockridge's dismissal from the Union, § 3(a) of the collective-bargaining agreement in effect between the Union and Greyhound provided:
4
'All present employees covered by this contract shall become members of the ASSOCIATION (Union) not later than thirty (30) days following its effective date and shall remain members as a condition precedent to continued employment. This section shall apply to newly hired employees thirty (30) days from the date of their employment with the COMPANY.' App. 88.
5
In addition, § 91 of the Union's Constitution and General Laws provided, in pertinent part, that:
6
'All dues * * * of the members of this Association are due and payable on the first day of each month for that month * * *. They must be paid by the fifteenth of the month in order to continue the member in good standing. * * * A member in arrears for his dues * * * after the fifteenth day of the month is not in good standing * * * and where a member allows his arrearage * * * to run into the second month before paying the same, he shall be debarred from benefits for one month after payment. Where a member allows his arrearage * * * to run over the last day of the second month without payment, he does thereby suspend himself from membership in this Association * * *. Where agreements with employing companies provide that members must be in continuous good financial standing, the member in arrears one month may be suspended from membership and removed from employment, in compliance with the terms of the agreement.' App. 91—92.
7
Prior to September 1959, Lockridge's dues had been deducted from his paycheck by Greyhound, pursuant to a checkoff arrangement. During that year, however, Lockridge and a few other employees were released at their request from the checkoff, and thereby became obligated to pay their dues directly to the Union's office in Portland, Oregon. On November 2, 1959, C. A. Bankhead, the treasurer and financial secretary of the union local, suspended Lockridge from membership on the sole ground that since respondent had not yet paid his October dues he was therefore in arrears contrary to § 91. Bankhead simultaneously notified Greyhound of this determination and requested that Lockridge be removed from employment. Greyhound promptly complied. Lockridge's wife received notice of the suspension from membership in early November, while her husband was on vacation, and on November 10, 1959, tendered Bankhead a check to cover respondent's dues for October and November, which Bankhead refused to accept.
8
This chain of events, combined with the disparity between the above-quoted terms of the collective-bargaining agreement and the union constitution and general laws generated this lawsuit. Lockridge has contended, and the Idaho courts have so held, that because he was less than two months behind in his payment of dues, respondent had not yet 'suspended himself from membership' within the meaning of the Union's rules, but instead had merely ceased to be a 'member in good standing.' And, because the collective-bargaining agreement required only that employees 'remain members,' those courts held that neither that agreement nor the final sentence of § 91 justified the Union's action in procuring Lockridge's discharge. Therefore, the Idaho courts have held, Lockridge's dismissal violated a promise, implied in law, that the Union would not seek termination of his employment unless he was sufficiently derelict in his dues payments to subject him to loss of his job under the terms of the applicable collective-bargaining agreement.
9
Although the trial court made no formal findings of fact on this score,2 it appears like that the Union procured Lockridge's dismissal in the mistaken belief that the applicable union security agreement with Greyhound did, in fact, require employees to remain members in good standing and that the Union insisted on what it thought was a technically valid position because it was piqued by Lockridge's obtaining his release from the checkoff. The trial court did find specifically that 'almost without exception' it had been the past practice of this local division of the Union merely to suspend delinquent members from service, rather than to strip them of membership, and to put them back to work without loss of seniority when their dues were paid.
10
Lockridge initially made some efforts, with Bankhead's assistance, to obtain reinstatement in the Union but these proved unsuccessful. No charges were filed before the National Labor Relations Board.3 Instead, Lockridge filed suit in September 1960 in the Idaho State District Court against the Union and Greyhound, which was later dropped as a party. That court, on the Union's motion, dismissed the complaint in April 1961 on the grounds that it charged the Union with the commission of an unfair labor practice and consequently fell within the exclusive jurisdiction of the NLRB. A year later, the Idaho Supreme Court reversed, holding that the state courts had jurisdiction under this Court's decision in International Association of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958), and remanded for trial on the merits. Lockridge v. Amalgamated Assn. of St., El. Ry. & M.C. Emp., 84 Idaho 201, 369 P.2d 1006 (1962).
11
In 1965 Lockridge filed a second amended complaint which has since served as the basis for this lawsuit. Its first count alleged that
12
'in suspending plaintiff from membership in the (Union) which resulted in plaintiff's loss of employment, the (Union) * * * acted wantonly, wilfully and wrongfully and without just cause, and * * * deprived plaintiff of his * * * employment with Greyhound Corporation that accrued to him and would accrue to him be reason of his employment, seniority and experience, and plaintiff has been harassed and subject to mental anguish * * *.' App. 46—47.
13
Count Two, sounding squarely in contract, alleged that
14
'in wrongfully suspending plaintiff from membership in the (Union), which resulted in plaintiff's discharge from employment with the Greyhound Corporation, the (Union) * * * acted wrongfully, wantonly, wilfully and maliciously and without just cause and violated the constitution and general laws of the (Union) which constituted a contract between the plaintiff as a member thereof and the (Union), and as a result of said breach of contract plaintiff has been deprived of his * * * employment with * * * Greyhound Corporation * * * and plaintiff has been embarrassed and subjected to mental anguish * * *.' App. 48.
15
The complaint sought damages in the amount of $212,000 'and such other and further relief as to the court may appear meet and equitable in the premises.' Ibid.
16
After trial, the Idaho District Court found the facts as stated above and held that they did, indeed, amount to a breach of contract. The court felt itself bound by the prior determination of the Idaho Supreme Court to consider that it might properly exercise jurisdiction over the controversy and to 'decide (the) case on the theories of' International Ass'n of Machinists v. Gonzales, supra. Consequently, the trial judge concluded that Lockridge was entitled to a decree restoring him to membership in the Union, 'although plaintiff has never sought such remedy.' Lockridge was also awarded $32,678.56 as compensation for wages actually lost due to his dismissal from Greyhound's employ, but his requests for future damages arising from continued loss of employment, compensation for loss of seniority or fringe benefits, and punitive damages were all denied. On appeal the Idaho Supreme Court affirmed, over one dissenting vote, except that it also ordered restoration of respondent's seniority rights. 93 Idaho 294, 460 P.2d 719 (1969). Having granted certiorari for the reasons stated at the outset of this opinion, we now reverse.
II
A.
17
On the surface, this might appear to be a routine and simple case. Section 8(b)(2) of the National Labor Relations Act, as amended, 61 Stat. 141, 29 U.S.C. § 158(b)(2), makes it an unfair labor practice for a union
18
'to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) * * * or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.'
19
Section 8(b)(1)(A), 29 U.S.C. § 158(b)(1)(A), makes it an unfair labor practice for a union 'to restrain or coerce * * * employees in the exercise of the rights guaranteed in section 7,' which includes the right not only 'to form, join, or assist labor organizations' but also 'the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).' 61 Stat. 140, 29 U.S.C. § 157. Section 8(a)(3) makes it an unfair labor practice for an employer
20
'by discrimination in regard to hire or tenure of employment * * * to encourage or discourage membership in any labor organization: Provided, That nothing in this Act * * * shall preclude and employer from making an agreement with a labor organization * * * to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later * * *: Provided further, That no employer shall justify and discrimination against an employee for nonmembership in a labor organization * * * if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership * * *.' 29 U.S.C.A. § 158(a)(3).
21
Further, in San Diego Building Trades Council v. Garmon, 359 U.S. at 245, 79 S.Ct., at 780, we held that the National Labor Relations Act pre-empts the jurisdiction of state and federal courts to regulate conduct 'arguably subject to § 7 or § 8 of the Act.' On their face, the above-quoted provisions of the Act at least arguably either permit or forbid the union conduct dealt with by the judgment below. For the evident thrust of this aspect of the federal statutory scheme is to permit the enforcement of union security clauses, by dismissal from employment, only for failure to pay dues. Whatever other sanctions may be employed to exact compliance with those internal union rules unrelated to dues payment, the Act seems generally to exclude dismissal from employment. See Radio Officers' Union, etc. v. NLRB, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455 (1954). Indeed, in the course of rejecting petitioner's pre-emption argument, the Idaho Supreme Court stated that, in its opinion, the Union 'did most certainly violate 8(b)(1)(A), did most certainly violate 8(b) (2) * * * and probably caused the employer to violate 8(a)(3).' 93 Idaho, at 299, 460 P.2d, at 724. Thus, given the broad pre-emption principle enunciated in Garmon, the want of state court power to resolve Lockridge's complaint might well seem to follow as a matter of course.
22
The Idaho Supreme Court, however, concluded that it nevertheless possessed jurisdiction in these circumstances. That determination, as we understand it, rested upon three separate propositions, all of which are urged here by respondent. The first is that the Union's conduct was not only an unfair labor practice, but a breach of its contract with Lockridge as well. 'Pre-emption is not established simply by showing that the same facts will sustain two different legal wrongs.' 93 Idaho, at 300, 460 P.2d, at 725. In other words Garmon, the state court and respondent assert, states a principle applicable only where the state law invoked is designed specifically to regulate labor relations; it has no force where the State applies its general common law of contracts to resolve disputes between a union and its members. Secondly, it is urged that the facts that might be shown to vindicate Lockridge's claim in the Idaho state courts differ from those relevant to proceedings governed by the National Labor Relations Act. It is said that the conduct regulated by the Act is union and employer discrimination; general contract law takes into account only the correctness of competing interpretations of the language embodied in agreements. 93 Idaho, at 303—304, 460 P.2d, at 728—729. Finally, there recurs throughout the state court opinion, and the arguments of respondent here, the theme that the facts of the instant case render it virtually indistinguishable from International Association of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958), where this Court upheld that exercise of state court jurisdiction in an opinion written only one Term prior to Garmon, by the author of Garmon and which was approvingly cited in the Garmon opinion itself.
23
We do not believe that any of these arguments suffice to overcome the plain purport of Garmon as applied to the facts of this case. However, we have determined to treat these considerations at some length because of the understandable confusion, perhaps in a measure attributable to the previous opinions of this Court, they reflect over the jurisprudential bases upon which the Garmon doctrine rests.
B
24
The constitutional principles of pre-emption, in whatever particular field of law they operate, are designed with a common end in view: to avoid conflicting regulation of conduct by various official bodies which might have some authority over the subject matter. A full understanding of the particular pre-emption rule set forth in Garmon especially requires, we think, appreciation of the precise nature and extent of the potential for injurious conflict that would inhere in a system unaffected by such a doctrine, and also the setting in which the general problem of accommodating conflicting claims of competence to resolve disputes touching upon labor relations has been presented to this Court.
25
The course of events that eventuated in the enactment of a comprehensive national labor law, entrusted for its administration and development to a centralized, expert agency, as well as the very fact of that enactment itself, reveals that a primary factor in this development was the perceived incapacity of common-law courts and state legislatures, acting alone, to provide an informed and coherent basis for stabilizing labor relations conflict and for equitably and delicately structuring the balance of power among competing forces so as to further the common good.4 The principle of pre-emption that informs our general national labor law was born of this Court's efforts, without the aid of explicit congressional guidance, to delimit state and federal judicial authority over labor disputes in order to preclude, so far as reasonably possible, conflict between the exertion of judicial and administrative power in the attainment of the multifaceted policies underlying the federal scheme.
26
As it appears to us, nothing could serve more fully to defeat the congressional goals underlying the Act than to subject, without limitation, the relationships it seeks to creat to the concurrent jurisdiction of state and federal courts free to apply the general local law. Nor would an approach suffice that sought merely to avoid disparity in the content of proscriptive behavioral rules. As the Court observed in Garner v. Teamsters, Chauffeurs and Helpers Local Union, 346 U.S. 485, 490—491, 74 S.Ct. 161, 165—166, 98 L.Ed. 228 (1953), Congress in establishing overriding federal supervision of labor law
27
'did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision * * *. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. * * * A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.'
28
Conflict in technique can be fully as disruptive to the system Congress erected as conflict in overt policy. As the passage from Garner indicates, in matters of dispute concerning labor relations a simple recitation of the formally prescribed rights and duties of the parties constitutes an inadequate description of the actual process for settlement Congress has provided. The technique of administration and the range and nature of those remedies that are and are not available is a fundamental part and parcel of the operative legal system established by the National Labor Relations Act. 'Administration is more than a means of regulation; administration is regulation. We have been concerned with conflict in its broadest sense; conflict with a complex and interrelated federal scheme of law, remedy, and administration.' Garmon, 359 U.S., at 243, 79 S.Ct., at 778.
29
The rationale for pre-emption, then, rests in large measure upon our determination that when it set down a federal labor policy Congress plainly meant to do more than simply to alter the then-prevailing substantive law. It sought as well to restructure fundamentally the processes for effectuating that policy, deliberately placing the responsibility for applying and developing this comprehensive legal system in the hands of an expert administrative body rather than the federalized judicial system.5 Thus, that a local court, while adjudicating a labor dispute also within the jurisdiction of the NLRB, may purport to apply legal rules identical to those prescribed in the federal Act or may eschew the authority to define or apply principles specifically developed to regulate labor relations does not mean that all relevant potential for debilitating conflict is absent.
30
A second factor that has played an important role in our shaping of the pre-emption doctrine has been the necessity to act without specific congressional direction. The precise extent to which state law must be displaced to achieve those unifying ends sought by the national legislature has never been determined by the Congress. This has, quite frankly, left the Court with few available options. We cannot declare pre-empted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers, and unions; obviously, much of this is left to the States. Nor can we proceed on a case-by-case basis to determine whether each particular final judicial pronouncement does, or might reasonably be thought to, conflict in some relevant manner with federal labor policy. This Court is ill-equipped to play such a role and the federal system dictates that this problem be solved with a rule capable of relatively easy application, so that lower courts may largely police themselves in this regard. Equally important, such a principle would fail to take account of the fact, as discussed above, that simple congruity of legal rules does not, in this area, prove the absence of untenable conflict. Further, it is surely not possible for this Court to treat the National Labor Relations Act section by section, committing enforcement of some of its provisions wholly to the NLRB and others to the concurrent domain of local law. Nothing in the language or underlying purposes of the Act suggests any basis for such distinctions. Finally, treating differently judicial power to deal with conduct protected by the Act from that prohibited by it would likewise be unsatisfactory.6 Both areas equally involve conduct whose legality is governed by federal law, the application of which Congress committed to the Board, not courts.
31
This is not to say, however, that these inherent limitations on this Court's ability to state a workable rule that comports reasonably with apparent congressional objectives are necessarily self-evident. In fact, varying approaches were taken by the Court in initially grappling with this pre-emption problem. Thus, for example, some early cases suggested the true distinction lay between judicial application of general common law, which was permissible, as opposed to state rules specifically designed to regulate labor relations, which were pre-empted. See, e.g., International Union, United Automobile, etc., Workers v. Russell, 356 U.S. 634, 645, 78 S.Ct. 932, 939, 2 L.Ed.2d 1030 (1958). Others made pre-emption turn on whether the States purported to apply a remedy not provided for by the federal scheme, e.g., Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 479 480, 75 S.Ct. 480, 487—488, 99 L.Ed. 546 (1955), while in still others the Court undertook a thorough scrutiny of the federal Act to ascertain whether the state courts had, in fact, arrived at conclusions inconsistent with its provisions, e.g., International Union, United Automobile Workers v. Wisconsin Employment Relations Bd., 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651 (1949). For the reasons outlined above none of these approaches proved satisfactory, however, and each was ultimately abandoned. It was, in short, experience—not pure logic—which initially taught that each of these methods sacrificed important federal interests in a uniform law of labor relations centrally administered by an expert agency without yielding anything in return by way of predictability of ease of judicial application.
32
The failure of alternative analyses and the interplay of the foregoing policy considerations, then, led this Court to hold in Garmon, 359 U.S., at 244, 79 S.Ct., at 779:
33
'When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law.'
C
34
Upon these premises, we think that Garmon rather clearly dictates reversal of the judgment below. None of the propositions asserted to support that judgment can withstand an application, in light of those factors that compelled its promulgation, of the Garmon rule.
35
Assuredly the proposition that Lockridge's complaint was not subject to the exclusive jurisdiction of the NLRB because it charged a breach of contract rather than an unfair labor practice is not tenable. Pre-emption, as shown above, is designed to shield the system from conflicting regulation of conduct. It is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus of concern. Indeed, the notion that a relevant distinction exists for such purposes between particularized and generalized labor law was explicitly rejected in Garmon itself. 359 U.S., at 244, 79 S.Ct., at 779.
36
The second argument, closely related to the first, is that the state courts, in resolving this controversy, did deal with different conduct, i.e., interpretation of contractual terms, than would the NLRB which would be required to decide whether the Union discriminated against Lockridge. At bottom, of course, the Union's action in procuring Lockridge's dismissal from employment is the conduct which Idaho courts have sought to regulate. Thus, this second point demonstrates at best that Idaho defines differently what sorts of such union conduct may permissibly be proscribed. This is to say either that the regulatory schemes, state the federal, conflict (in which case pre-emption is clearly called for) or that Idaho is dealing with conduct to which the federal Act does not speak. If the latter assertion was intended, it is not accurate. As pointed out in Part II—A, supra, the relevant portions of the Act operate to prohibit a union from causing or attempting to cause an employer to discriminate against an employee because his membership in the union has been terminated 'on some ground other than' his failure to pay those dues requisite to membership. This has led the Board routinely and frequently to inquire into the proper construction of union regulations in order to ascertain whether the union properly found an employee to have been derelict in his dues-paying responsibilities, where his discharge was procured on the asserted grounds of nonmembership in the union. See e.g., NLRB v. Allied Independent Union, 238 F.2d 120 (CA7 1956); NLRB v. Leece-Neville Co., 330 F.2d 242 (CA6 1964); Communications Workers v. NLRB, 215 F.2d 835 (CA2 1954); NLRB v. Spector Freight System, Inc., 273 F.2d 272 (CA8 1960). See generally 3 CCH Lab.L.Rep. 4525 (Labor Relations). That a union may in good faith have misconstrued its own rules has not been treated by the Board as a defense to a claimed violation of § 8(b)(2). In the Board's view, it is the fact of misapplication by a union of its rules, not the motivation for that discrimination, that constitutes an unfair labor practice. See, in addition to the authorities cited above, International Union of Electrical, Radio & Machine Workers v. NLRB, 113 U.S.App.D.C. 342, 347, 307 F.2d 679, 684 (1962), and Local 357, International Brotherhood of Teamsters v. NLRB, 365 U.S. 667, 681, 81 S.Ct. 835, 842, 6 L.Ed.2d 11 (1961) (concurring opinion).
37
From the foregoing, then, it would seem that this case indeed represents one of the clearest instances where the Garmon principle, properly understood, should operate to oust state court jurisdiction. There being no doubt that the conduct here involved was arguably protected by § 7 or prohibited by § 8 of the Act, the full range of very substantial interests the pre-emption doctrine seeks to protect is directly implicated here.
38
However, a final strand of analysis underlies the opinion of the Idaho Supreme Court, and the position of respondent, in this case. Our decision in International Association of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958), it is argued, fully survived the subsequent reorientation of pre-emption doctrine effected by the Garmon decision, providing, in effect, an express exception for the exercise of judicial jurisdiction in cases such as this.
39
The fact situation in Gonzales does resemble in some relevant regards that of the instant case. There the California courts had entertained a complaint by an individual union member claiming he had been expelled from his union in violation of rights conferred upon him by the union's constitution and bylaws, which allegedly constituted a contract between him and his union. Gonzales prevailed on his breach-of-contract theory and was awarded damages for wages lost due to the revocation of membership as well as a decree providing for his reinstatement in the union. This Court confirmed the California courts' power to award the monetary damages, the only aspect of the action below challenged in this Court. The primary rationale for the result reached was that California should be competent to 'fill out,' 356 U.S., at 620, 78 S.Ct., at 925, the reinstatement remedy by utilizing 'the comprehensive relief of equity,' id., at 621, 78 S.Ct., at 925, which the Board did not fully possess. Secondarily, it was said that the lawsuit 'did not purport to remedy or regulate union conduct on the ground that it was designed to bring about employer discrimination against an employee, the evil the Board is concerned to strike at as an unfair labor practice under § 8(b)(2).' Id., at 622, 78 S.Ct., at 926.
40
Although it was decided only one Term subsequent to Gonzales, Garmon clearly did not fully embrace the technique of the prior case. It was precisely the realization that disparities in remedies and administration could produce substantial conflict, in the practical sense of the term, between the relevant state and federal regulatory schemes and that this Court could not effectively and responsibly superintend on a case-by-case basis the exertion of state power over matters arguably governed by the National Labor Relations Act that impelled the somewhat broader formulation of the pre-emption doctrine in Garmon. It seems evident that the full-blown rationale of Gonzales could not survive the rule of Garmon. Nevertheless, Garmon, did not cast doubt upon the result reached in Gonzales, but cited it approvingly as an example of the fact that state court jurisdiction is not preempted 'where the activity regulated was a merely peripheral concern of the * * * Act.' 359 U.S., at 243, 79 S.Ct., at 779.
41
Against this background, we attempted to define more precisely the reach of Gonzales within the more comprehensive framework Garmon provided in the companion cases of Local 100 of United Ass'n of Journeymen and Apprentices v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638 (1963), and Local No. 207, International Ass'n of Bridge, Structural and Ornamental Iron Workers v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646 (1963).
42
Borden had sued his union in state courts, alleging that the union had arbitrarily refused to refer him to a particular job which he had lined up. He recovered damages, based on lost wages, on the grounds that this conduct constituted both tortious interference with his right to contract for employment and a breach of promise, implicit in his membership arrangement with the union, not to discriminate unfairly against any member or deny him the right to work. Perko had obtained a large money judgment in the Ohio courts on proof that the union had conspired, without cause, to deprive him of employment as a foreman by demanding his discharge from one such position he had held and representing to others that his foreman's rights had been suspended. We held both Perko's and Borden's judgments inconsistent with the Garmon rule essentially for the same reasons we have concluded that Lockridge could not, consistently with the Garmon decision, maintain his lawsuit in the state courts. We further held there was no necessity to 'consider the present vitality of (the Gonzales) rationale in the light of more recent decisions,' because in those cases, unlike Gonzales, 'the crux of the action(s) * * * concerned alleged interference with the plaintiff's existing or prospective employment relations and was not directed to internal union matters.' Because no specific claim for restoration of membership rights had been advanced, 'there was no permissible state remedy to which the award of consequential damages for loss of earnings might be subordinated.' Perko, 373 U.S., at 705, 83 S.Ct., at 1431. See also Borden, 373 U.S., at 697, 83 S.Ct., at 1427.
43
In sum, what distinguished Gonzales from Borden and Perko was that the former lawsuit 'was focused on purely internal union matters,' Borden, supra, at 697, 83 S.Ct., at 1427, a subject the National Labor Relations Act leaves principally to other processes of law. The possibility that, in defining the scope of the union's duty to Gonzales the state courts would directly and consciously implicate principles of federal law was at best tangential and remote. In the instant case, however, this possibility was real and immediate. To assess the legality of his union's conduct toward Gonzales the California courts needed only to focus upon the union's constitution and by-laws. Here, however, Lockridge's entire case turned upon the construction of the applicable union security clause, a matter as to which, as shown above, federal concern is pervasive and its regulation complex. The reasons for Gonzales' deprivation of union membership had nothing to do with matters of employment, while Lockridge's cause of action and claim for damages were based solely upon the procurement of his discharge from employment. It cannot plausibly be argued, in any meaningful sense, that Lockridge's lawsuit 'was focused on purely internal union matters.' Although nothing said in Garmon necessarily suggests that States cannot regulate the general conditions which unions may impose on their membership, it surely makes crystal clear that Gonzales does not stand for the proposition that resolution of any union-member conflict is within state competence so long as one of the remedies provided is restoration of union membership. This much was settled by Borden and Perko, and it is only upon such an unwarrantably broad interpretation of Gonzales that the judgment below could be sustained.
III
44
The pre-emption doctrine we apply today is, like any other purposefully administered legal principle, not without exception. Those same considerations that underlie Garmon have led this Court to permit the exercise of judicial power over conduct arguably protected or prohibited by the Act where Congress has affirmatively indicated that such power should exist. Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); Local 20, Teamsters, Chauffeurs and Helpers Union v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964), where this Court cannot, in spite of the force of the policies Garmon seeks to promote, conscientiously presume that Congress meant to intrude so deeply into areas traditionally left to local law, e.g., Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966); International Union, United Automobile Workers, etc., v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958),7 and where the particular rule of law sought to be invoked before another tribunal is so structured and administered that, in virtually all instances, it is safe to presume that judicial supervision will not disserve the interests promoted by the federal labor statutes, Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).8
45
In his brief before this Court, respondent has argued for the first time since this lawsuit was started that two of these exceptions to the Garmon principle independently justify the Idaho courts' exercise of jurisdiction over this controversy. First, Lockridge contends that his action, properly viewed, is one to enforce a collective-bargaining agreement. Alternatively, he asserts the suit, in essence, was one to redress petitioner's breach of its duty of fair representation. As will be seen, these contentions are somewhat intertwined.
46
In § 301 of the Taft-Hartley Act, 61 Stat. 156, Congress authorized federal courts to exercise jurisdiction over suits brought to enforce collective-bargaining agreements. We have held that such actions are judicially cognizable, even where the conduct alleged was arguably protected or prohibited by the National Labor Relations Act because the history of the enactment of § 301 reveals that 'Congress deliberately chose to leave the enforcement of collective agreements 'to the usual processes of the law." Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 513, 82 S.Ct. 519, 526, 7 L.Ed.2d 483 (1962). It is firmly established, further, that state courts retain concurrent jurisdiction to adjudicate such claims, Charles Dowd Box Co., supra, and that individual employees have standing to protect rights conferred upon them by such agreements, Smith v. Evening News, supra; Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964).
47
Our cases also clearly establish that individual union members may sue their employers under § 301 for breach of a promise embedded in the collective-bargaining agreement that was intended to confer a benefit upon the individual. Smith v. Evening News, supra. Plainly, however, this is not such a lawsuit. Lockridge specifically dropped Greyhound as a named party from his initial complaint and has never reasserted a right to redress from his former employer.
48
This Court has further held in Humphrey v. Moore, supra, that § 301 will support, regardless of otherwise applicable pre-emption considerations, a suit in the state courts by a union member against his union that seeks to redress union interference with rights conferred on individual employees by the employer's promises in the collective-bargaining agreement, where it is proved that such interference constituted a breach of the duty of fair representation. Indeed, in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), we held that an action seeking damages for injury inflicted by a breach of a union's duty of fair representation was judicially cognizable in any event, that is, even if the conduct complained of was arguably protected or prohibited by the National Labor Relations Act and whether or not the lawsuit was bottomed on a collective agreement. Perhaps Count One of Lockridge's second amended complaint could be construed to assert either or both of these theories of recovery. However, it is unnecessary to pass upon the extent to which Garmon would be inapplicable if it were shown that in these circumstances petitioner not only breached its contractual obligations to respondent, but did so in a manner that constituted a breach of the duty of fair representation. For such a claim to be made out, Lockridge must have proved 'arbitrary or bad-faith conduct on the part of the Union.' Vaca v. Sipes, supra, at 193, 87 S.Ct., at 918. There must be 'substantial evidence of fraud, deceitful action or dishonest conduct.' Humphrey v. Moore, supra, 375 U.S., at 348, 84 S.Ct., at 371. Whether these requisite elements have been proved is a matter of federal law. Quite obviously, they were not even asserted to be relevant in the proceedings below. As the Idaho Supreme Court stated in affirming the verdict for Lockridge, '(t)his was a misinterpretation of a contract. Whatever the underlying motive for expulsion might have been, this case has been submitted and tried on the interpretation of the contract, not on a theory of discrimination.' 93 Idaho, at 303—304, 460 P.2d, at 728—729. Thus, the trial judge's conclusion of law in sustaining Lockridge's claim specifically incorporates the assumption that the Union's 'acts * * * were predicated solely upon the ground that (Lockridge) had failed to tender periodic dues in conformance with the requirements of the union Constitution and employment contract as they interpreted (it) * * *.' App. 66. Further, the trial court excluded as irrelevant petitioner's proffer of evidence designed to show that the Union's interpretation of the contract was reasonably based upon its understanding of prior collective-bargaining agreements negotiated with Greyhound. Tr. Trial, at 259—260.
49
Nor can it be fairly argued that our resolution of respondent's final contentions entails simply attaching variegated labels to matters of equal substance. We have exempted § 301 suits from the Garmon principle because of the evident congressional determination that courts should be free to interpret and enforce collective-bargaining agreements even where that process may involve condemning or permitting conduct arguably subject to the protection or prohibition of the National Labor Relations Act. The legislative determination that courts are fully competent to resolve labor relations disputes through focusing on the terms of a collective-bargaining agreement cannot be said to sweep within it the same conclusion with regard to the terms of union-employee contracts that are said to be implied in law. That is why the principle of Smith v. Evening News is applicable only to those disputes that are governed by the terms of the collective-bargaining agreement itself.
50
Similarly, this Court's refusal to limit judicial competence to rectify a breach of the duty of fair representation rests upon our judgment that such actions cannot, in the vast majority of situations where they occur, give rise to actual conflict with the operative realities of federal labor policy. The duty of fair representation was judicially evolved, without the participation of the NLRB, to enforce fully the important principle that no individual union member may suffer invidious, hostile treatment at the hands of the majority of his coworkers. Where such union conduct is proved it is clear, beyond doubt, that the conduct could not be otherwise regulated by the substantive federal law. And the fact that the doctrine was originally developed and applied by courts, after passage of the Act, and carries with it the need to adduce substantial evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives ensures that the risk of conflict with the general congressional policy favoring expert, centralized administration, and remedial action is tolerably slight. Vaca v. Sipes, supra, 386 U.S., at 180 181, 87 S.Ct., at 911—912. So viewed, the duty of fair representation, properly defined, operates to limit the scope of Garmon where the sheer logic of the preemption principle might otherwise cause it to be extended to a point where its operation might be unjust. Vaca v. Sipes, supra, at 182—183, 87 S.Ct., at 912—913. If, however, the congressional policies Garmon seeks to promote are not to be swallowed up, the very distinction, embedded within the instant lawsuit itself, between honest, mistaken conduct, on the one hand, and deliberate and severely hostile and irrational treatment, on the other, needs strictly to be maintained.
IV
51
Finally, we deem it appropriate to discuss briefly two other considerations underlying the conclusion we have reached in this case. First, our decision must not be taken as expressing any views on the substantive claims of the two parties to this controversy. Indeed, our judgment is, quite simply, that it is not the task of federal or state courts to make such determinations. Secondly, in our explication of the reasons for the Garmon rule, and the various exceptions to it, we noted that, although largely of judicial making, the labor relations preemption doctrine finds its basic justification in the presumed intent of Congress. While we do not assert that the Garmon doctrine is without imperfection, we do think that it is founded on reasoned principle and that until it is altered by congressional action or by judicial insights that are born of further experience with it, a heavy burden rests upon those who would, at this late date, ask this Court to abandon Garmon and set out again in quest of a system more nearly perfect. A fair regard for considerations of stare decisis and the coordinate role of the Congress in defining the extent to which federal legislation pre-empts state law strongly support our conclusion that the basic tenets of Garmon should not be disturbed.9
52
For the reasons stated above, the judgment below is reversed.
53
Reversed.
54
Mr. Justice DOUGLAS, dissenting.
55
I would affirm this judgment on the basis of International Ass'n of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018, rather than overrule it. I would not extend San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, so as to make Lockridge, the employee, seek his relief in faraway Washington, D.C., from the National Labor Relations Board.
56
When we hold that a grievance is 'arguably' within the jurisdiction of the National Labor Relations Board and remit the individual employee to the Board for remedial relief, we impose a great hardship on him, especially where he is a lone individual not financed out of a lush treasury. I would allow respondent recourse to litigation in his home town tribunal and not require him to resort to an elusive remedy in distant and remote Washington, D.C., which takes money to reach.
57
He has six months within which to file an unfair labor practice charge with the Regional Director and serve it upon the other party. If he does not file within six months, the claim is barred. 29 U.S.C. § 160(b). The charge must be in writing and contain either a declaration that the contents are true to the best of his knowledge, or else a notarization. 29 CFR § 101.2. When the charge is received, it is filed, docketed, and given a number (29 CFR § 101.4) and assigned to a member of the field staff for investigation. 29 CFR § 101.4.
58
Following the investigation, the Regional Director makes his decision. 'If investigation reveals that there has been no violation of the National Labor Relations Act or the evidence is insufficient to substantiate the charge, the regional director recommends withdrawal of the charge by the person who filed.' 29 CFR § 101.5. If the complaining party does not withdraw the charge, the Regional Director dismisses it. 29 CFR § 101.6. Following dismissal, the complainant has 10 days to appeal the decision to the General Counsel who reviews the decision. Ibid. If the General Counsel holds against the complaining party and refuses to issue an unfair labor practice complaint, the decision is apparently unreviewable. A. Cox & D. Bok, Labor Law 138 (7th ed. 1969); General Drivers, Chauffeurs and Helpers, Local 886 v. NLRB, 10 Cir., 179 F.2d 492.
59
From the viewpoint of an aggrieved employee, there is not a trace of equity in this long-drawn, expensive remedy. If he musters the resources to exhaust the administrative remedy, the chances are that he too will be exhausted. If the General Counsel issues a complaint, then he stands in line for some time waiting for the Board's decision.1 If the General Counsel refuses to act, then the employee is absolutely without remedy. For as Garmon states:
60
'(T)he Board may also fail to determine the status of the disputed conduct by declining to assert jurisdiction, or by refusal of the General Counsel to file a charge, or by adopting some other disposition which does not define the nature of the activity with unclouded legal significance. This was the basic problem underlying our decision in Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 609, 1 L.Ed.2d 601. In that case we held that the failure of the National Labor Relations Board to assume jurisdiction did not leave the States free to regulate activities they would otherwise be precluded from regulating. It follows that the failure of the Board to define the legal significance under the Act of a particular activity does not give the States the power to act.' 359 U.S., at 245—246, 79 S.Ct., at 780.
61
From this it follows that if the General Counsel refuses to act, no one may act and the employee is barred from relief in either state or federal court.2 See Day v. Northwest Division 1055, 238 Or. 624, 389 P.2d 42, cert. denied, 379 U.S. 878, 85 S.Ct. 145, 13 L.Ed.2d 86.
62
When we tell a sole individual that his case is 'arguably' within the jurisdiction of the Board, we in practical effect deny him any remedy. I repeat what I said before, 'When the basic dispute is between a union and an employer, any hiatus that might exist in the jurisdictional balance that has been struck can be filled by resort to economic power. But when the union member has a dispute with his union, he has no power on which to rely.' Local 100 of United Association of Journeymen and Apprentices v. Borden, 373 U.S. 690, 700, 83 S.Ct. 1423, 1429, 10 L.Ed.2d 638 (dissenting).
63
Garmon involved a union-employer dispute. It should not be extended to the individual employee who seeks a remedy for his grievance against his union.
64
The complaint in this state court suit sought damages from the union for its action in causing the employer to discharge him pursuant to the union-security clause in the collective-bargaining agreement. It also asked for 'such other and further relief as to the court may appear meet and equitable in the premises.'
65
It appears that the collective agreement only required Lockridge to be a member of the union as a condition of employment, not a member in good standing. Lockridge, it appears, was one month delinquent in payment of dues but was still a member.
66
The case for relief by Lockridge in a state court is as strong as, if not stronger than, the case of Gonzales. Lockridge, who was refused employment because of the union's representations to the employer, had never been expelled from the union. On the other hand, Gonzales had been expelled from the union because he brought assault and battery charges against a representative of the union. He sued for restoration of membership and for damages. The state court found that the union had breached its contract with the employee and ordered him reinstated and awarded him damages. 356 U.S., at 618, 78 S.Ct., at 924. We sustained the state court, saying that 'the subject matter of the litigation * * * was the breach of a contract governing the relations' between the employee and the union and that the 'suit did not purport to remedy or regulate union conduct on the ground that it was designed to bring about employer discrimination against an employee, the evil the Board is concerned to strike at as an unfair labor practice under § 8(b)(2).' Id., at 621-622, 78 S.Ct., at 926. We held that in those circumstances the state court had power to order the employee reinstated to membership and was not deprived of jurisdiction to 'fill out' his remedy by awarding damages. Id., at 620—621, 78 S.Ct., at 925.
67
Whether in the present case the discharge of Lockridge was 'arguably' an unfair labor practice within the meaning of Garmon is irrelevant. The reason is that the Board would not have the power to supply the total remedy which Lockridge seeks even if the employer had committed an unfair labor practice. True, the Board has authority to award back pay3 but it has no authority to award damages beyond back pay. Moreover, under Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173, the union is in a fiduciary relation to its members. As we stated in Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842:
68
'Under this doctrine, the exclusive agent's statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.'
69
We emphasized in the Sipes case that the Garmon rule was 'not applicable to cases involving alleged breaches of the union's duty of fair representation.' Id., at 181, 87 S.Ct., at 912. We held that in this type of case Congress did not intend 'to oust the courts of their traditional jurisdiction to curb arbitrary conduct by the individual employee's statutory representative.' Id., at 183, 87 S.Ct., at 913.
70
As demonstrated by Mr. Justice WHITE in his dissent in this case, the exceptions to the pre-emption rule are so many and so important that they make amazing the Court's 'uncritical resort to it.' The wrongs suffered by Lockridge stemmed from the union's breach of its contract. Rather than overrule Gonzales, we should reaffirm what we said there:
71
'(T)he protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law, and indeed the assertion of any such power has been expressly denied. The proviso to § 8(b)(1) of the Act states that 'this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein * * *.' 61 Stat. 141, 29 U.S.C. § 158(b)(1). The present controversy is precisely one that gives legal efficacy under state law to the rules prescribed by a labor organization for 'retention of membership therein.' Thus, to preclude a state court from exerting its traditional jurisdiction to determine and enforce the rights of union membership would in many cases leave an unjustly ousted member without remedy for the restoration of his important union rights. Such a drastic result, on the remote possibility of some entanglement with the Board's enforcement of the national policy, would require a more compelling indication of congressional will than can be found in the interstices of the Taft-Hartley Act.' 356 U.S., at 620, 78 S.Ct., at 925.
72
Where the quarrel between the employee and the union is over a particular job, his remedy is before the Board. Local 100 of United Ass'n of Journeymen and Apprentices v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638; Local No. 207, International Ass'n of Bridge, Structural and Ornamental Iron Workers v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646. But where the union contract is breached by expulsion of the employee, as alleged in Gonzales, or where he is wrongfully treated as no longer being a member of the union (which is the present case) the suit lies in the state court for damages, for declaratory or other relief that he still is a member, and for such other remedies as may be appropriate.
73
While I joined the dissent in Gonzales, experience under Garmon convinces me that we should not apply its rule to the grievances of individual employees against a union. I would affirm the judgment below.
74
Mr. Justice WHITE, with whom THE CHIEF JUSTICE joins, dissenting.
75
Like Mr. Justice DOUGLAS, I would neither overrule nor eviscerate International Assn. of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958). In light of present statutory law and congressional intention gleaned therefrom, state courts should not be foreclosed from extending relief for union deprivation of members' state law rights under the union constitution and bylaws. Even if I agreed that the doctrine of San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), properly pre-empts such union member actions based on state law where the challenged conduct is arguably an unfair labor practice, I could not join the opinion of the Court since it unqualifiedly applies the same doctrine where the conduct of the union is only arguably protected under the federal law.
76
The Garmon doctrine, which is today reaffirmed and extended, has as its touchstone the presumed congressional goal of a uniform national labor policy; to this end, the Court has believed, the administration of that policy must insofar as is possible be in the hands of a single, centralized agency. In many ways I have no quarrel with this view. Many would agree that as a general matter some degree of uniformity is preferable to the conflicting voices of 50 States, particularly in view of the structure of industrial and commercial activities in this country. Congress determined as much when it enacted the National Labor Relations Act (NLRA).
77
But it is time to recognize that Congress has not federalized the entire law of labor relations, even labor-management relations, and that within the area occupied by federal law neither Congress, this Court, nor the National Labor Relations Board itself has, in the name of uniformity, insisted that the agency always be the exclusive expositor of federal policy in the first instance. To put the matter in proper perspective it will be helpful to set down some of the important contexts in which federal law is implemented by the courts or other institutions without the prior intervention of the Board, as well as those in which state rather than federal law is permitted to operate. Part I, following, undertakes this task. Against that background, Part II deals with union member actions against their union, and Part III considers the Garmon doctrine in those situations where the conduct complained of is arguably protected by federal law.
78
* It is well established that the Board has jurisdiction over unfair labor practices even though they might also be arguable violations of the collective-bargaining agreement and subject to arbitration under the terms of the contract. See 29 U.S.C. § 160(a); Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 272, 84 S.Ct. 401, 409, 11 L.Ed.2d 320 (1964); NLRB v. Strong, 393 U.S. 357, 360—361, 89 S.Ct. 541, 544—545, 21 L.Ed.2d 546 (1969); NLRB v. Acme Industrial Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967). But as a policy matter the Board will not overturn arbitration awards based on behavior that is also an alleged unfair labor practice if the arbitration proceedings comply with certain procedures, among which is that the arbitrator must have given consideration to the alleged unfair labor practice. Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955); International Harvester Co., 138 N.L.R.B. 923 (1962), enforced sub nom. Ramsey v. NLRB, 327 F.2d 784 (CA7 1964). The Board has said:
79
'If complete effectuation of the Federal policy is to be achieved, we firmly believe that the Board, which is entrusted with the administration of one of the many facets of national labor policy, should give hospitable acceptance to the arbitral process as 'part and parcel of the collective bargaining process itself,' and voluntarily withhold its undoubted authority to adjudicate alleged unfair labor practice charges involving the same subject matter, unless it clearly appears that the arbitration proceedings were tainted by fraud, collusion, unfairness, or serious procedural irregularities or that the award was clearly repugnant to the purposes and policies of the Act.' International Harvester Co., supra, at 927 (citations omitted).
80
See also Carey v. Westinghouse Elec. Corp., supra, 375 U.S., at 270—272, 84 S.Ct., at 408—409; Raley's Inc., 143 N.L.R.B. 256 (1963).
81
Thus, not only does Board policy allow arbitrators to pass on conduct which is also an alleged unfair labor practice, but the Board will not consider an unfair labor practice charge unless the arbitrator has passed on it.1 And even then, the Board has made quite clear that its standard of review is far from de novo; it will let stand an arbitrator's award not 'clearly repugnant' to the Act. See, e.g., Virginia-Carolina Freight Lines, 155 N.L.R.B. 447 (1965), where the Board refused to uphold an arbitrator's award allowing discharge of an employee for 'disloyalty' where the 'disloyalty' consisted of seeking assistance from the Board. The Board's standard of review for arbitration awards seems to be even narrower than the substantial-evidence test, for the Board has not purported to overturn awards simply on the evidence before the arbitrator. The standards chosen by the Board operate entirely separately from the substantial-evidence test. See § 10(e), Administrative Procedure Act, 5 U.S.C. § 706 (1970 ed.). In fact, in International Harvester itself, the Board agreed to accept the arbitrator's award 'since it plainly appears to us that the award is not palpably wrong.' To require a wider scope of evidentiary review, said the Board, 'would mean substituting the Board's judgment for that of the arbitrator, thereby defeating the purposes of the Act and the common goal of national labor policy of encouraging the final adjustment of disputes, 'as part and parcel of the collective bargaining process." 138 N.L.R.B., at 929.
82
Congress, no less than the Board, has indicated its approval and endorsement of the arbitral process even though this may result in controversies being adjudicated by forums other than the Board. Section 203(d) of the Labor Management Relations Act (LMRA), 1947, 61 Stat. 154, 29 U.S.C. § 173(d), declares:
83
'Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.'
84
See United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 566—568, 80 S.Ct. 1343, 1345—1347, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960). See also § 10(k) of NLRA, 29 U.S.C. § 160(k). Indeed, § 301(a) of the LMRA, 29 U.S.C. § 185(a), may be considered the birthplace of much of modern arbitration law. As the Court said in Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 455, 77 S.Ct. 912, 917, 1 L.Ed.2d 972 (1957): '(Section 301) expresses a federal policy that federal courts should enforce these (arbitration) agreements on behalf of or against labor organizations and that industrial peace can be best obtained only in that way.' Finally, this Court itself has expressed the view, in construing federal law pursuant to § 301(a), that the policy of encouraging arbitration was sufficient to overcome considerations favoring pre-emption. In the Court's words, 'Arbitral awards construing a seniority provision * * * or awards concerning unfair labor practices, may later end up in conflict with Board rulings. * * * Yet, as we held in Smith v. Evening News Assn. (371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962)), the possibility of conflict is no barrier to resort to a tribunal other than the Board.' Carey v. Westinghouse Electric Corp., 375 U.S., at 272, 84 S.Ct., at 409.
85
The cumulative effect of all of this is that the jurisdiction of one forum—in this case, arbitration—is not displaced simply because the Board also has jurisdiction to act. The policy of pre-emption and, to some extent, of uniformity itself is subordinated to the greater policy of encouraging arbitration of grievances.
86
Deference to the arbitral forum is not the only instance where arguable or conceded unfair labor practices are excepted from the pre-emption doctrine. In Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962), the employee brought suit under § 301(a) of the LMRA, 29 U.S.C. § 185(a), to enforce the collective-bargaining contract, alleging that the employer discriminated against certain employees because of their union affiliation. The conduct, if proved, would not only have been a violation of the contract but would concededly have been an unfair labor practice as well. The Court expressly rejected the Garmon doctrine in the context of such suits, holding that, while Board jurisdiction over unfair labor practices was not displaced when the conduct also allegedly violated the terms of the contract, neither was the jurisdiction exclusive. This result was consistent with the expressed intent of Congress that enforcement of collective-bargaining agreements be 'left to the usual processes of the law,' rather than to the Board. Charles Dowd Box Co., Inc. v. Courtney, 368 U.S. 502, 511, 82 S.Ct. 519, 524, 7 L.Ed.2d 483 (1962). See also Local 174, Teamsters, Chauffeurs, etc. v. Lucas Flour Co., 369 U.S. 95, 101 n. 9, 82 S.Ct. 571, 575, 7 L.Ed.2d 593 (1962); Sovern, Section 301 and the Primary Jurisdiction of the NLRB, 76 Harv.L.Rev. 529 (1963).
87
These cases, like those dealing with arbitration, indicate a willingness to subordinate the Garmon doctrine when other, more pressing problems are at hand. Here, the policy to be served was that collective-bargaining agreements be enforced by the judiciary, notwithstanding concurrent Board jurisdiction to regulate that activity which was also an unfair labor practice. To be sure, the Court has required that, in the interests of uniform development of the law, state courts must apply federal law. Lucas Flour, supra, at 102—104, 82 S.Ct., at 576—577. But the Court was no less aware in Smith than it had been nine years earlier in Garner v. Teamsters, Chauffeurs and Helpers Local Union No. 776, 346 U.S. 485, 490—491, 74 S.Ct. 161, 166, 98 L.Ed. 228 (1953), that: 'A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.' The point is simply that the perceived interest in judicial adjudication of contractual disputes was more important than the interests of uniformity that would be promoted by pre-emption.
88
In Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), this Court refused to apply the pre-emption doctrine to suits charging a breach of the union's duty of fair representation, even though the Board had held that such a breach was also an unfair labor practice. Miranda Fuel Co., 140 N.L.R.B. 181 (1962). Though one reason for this result was that the duty of unfair representation had been for the most part developed by the judiciary rather than the Board, the other reason was concern over the possibility of denying a hearing to an employee who felt his individual interests had been unfairly subordinated by the union. The Court expressed fear that, were preemption the rule, 'the individual employee injured by arbitrary or discriminatory union conduct could no longer be assured of impartial review of his complaint, since the Board's General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint.' 386 U.S., at 182, 87 S.Ct., at 912.
89
Congress has expressly given a federal cause of action for damages to parties injured by secondary union activity under § 8(b)(4), which may be enforced by suits brought in either state or federal court. 29 U.S.C. § 187(b). The union's activity giving rise to liability is of necessity an unfair labor practice, but Congress elected to have the question adjudicated in court, even though the activity might be the subject of a parallel and possibly inconsistent determination by the Board. See Local 20 Teamsters, Chauffeurs and Helpers Union v. Morton, 377 U.S. 252, 256, 84 S.Ct. 1253, 1256, 12 L.Ed.2d 280 (1964). Of course federal law governs such cases, at least where the union activity is not violent; and presumably the decisions of the NLRB on secondary activity would be consulted for guidance. But the Congress chose not to have the Board hear such suits, even though the Board is probably far more familiar than the courts with the variety of problems posed by secondary activity.
90
The phenomenon of the no-man's land and the conclusions that can be drawn on pre-emption are also instructive, for they cast substantial doubt not only on the intent of Congress but on the very foundations of Garmon itself. In Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601 (1957), the Court held that States were powerless to intervene in labor disputes where the NLRB possessed jurisdiction, even though the Board had refused to assert its jurisdiction because of the 'predominantly local' character of the company's operations. The Court conceded that this would likely produce 'a vast no-man's-land, subject to regulation by no agency or court,' id., at 10, 77 S.Ct., at 603, but insisted this was the intent of the Congress and that Congress could change the situation if it desired. Congress did change the situation soon thereafter, providing that the States may assert jurisdiction over any dispute where the Board declines to do so because of the insubstantial effect on interstate commerce. § 14(c) of NLRA, as amended, 73 Stat. 541, 29 U.S.C. § 164(c). The purpose of this section was to fill the chasm created by Guss. See, e.g., 105 Cong.Rec. 6430 (Sen. Goldwater). The situation was roundly condemned by legislators, who called it variously 'a no man's land, in which there are grievous wrongs and no remedy under American jurisprudence as of this time,' id., at 6413 (Sen. McClellan), and 'a stench in the nostrils of justice.' Id., at 6544 (Sen. Ervin). In short, the reaction to Guss indicates that this Court was quite wrong in determining that the no-man's land was justified in the name of congressional intent to achieve uniformity in law and administration.
91
Of some interest is the fact that Garmon was based upon, and expanded to a significant degree, the rationale of Guss:
92
'It follows (from Guss) that the failure of the Board to define the legal significance under the Act of a particular activity does not give the States the power to act. In the absence of the Board's clear determination that an activity is neither protected nor prohibited or of compelling precedent applied to essentially undisputed facts, it is not for this Court to decide whether such activities are subject to state jurisdiction. The withdrawal of this narrow area from possible state activity follows from our decisions in Weber and Guss.' 359 U.S., at 246, 79 S.Ct., at 780. (Emphasis added.)
93
Yet five months after the announcement of the Garmon decision, Congress in effect overruled Guss and thus at least counseled caution in applying the Garmon rationale.
94
The provisions of § 14(c), however, do not allow state jurisdiction where the Board refuses to assert jurisdiction for 'policy' reasons, as where the General Counsel refuses to issue a complaint because he is not convinced of the merits of the plaintiff's cause. In such a situation, Garmon precludes state action (or action by federal courts) because the Board's action does not define the activity 'with unclouded legal significance.' 359 U.S., at 246, 79 S.Ct., at 780. In 1965, the Court eased the harsh strictures of Garmon in this area by holding that reasons articulated by the General Counsel for his refusal to issue a complaint would open the way for state action if the explanations 'squarely define the nature of the activity' sought to be subjected to Board consideration. Hanna Mining Co. v. District 2, Marine Engineers Beneficial Assn., 382 U.S. 181, 192, 86 S.Ct. 327, 333, 15 L.Ed.2d 254 (1965).
95
Even though federal law is pervasive in labor-management relations, state law is preserved in some respects. At first blush, it might seem that these matters present no problems of uniformity, for there is no national law being applied. But the simple fact that Congress and this Court have deferred to the States in these areas indicates a subordination of the interest in uniformity to the interests of the States. By making the matter one of state law, Congress has not only authorized multiformity on the subject, but practically guaranteed it. The results, as far as uniformity is concerned, are no different than if the States applied federal law with abandon. For example, the controversial § 14(b) of NLRA, 61 Stat. 151, 29 U.S.C. § 164(b), has authorized States to choose for themselves whether to require or permit union shops. This allows the States to regulate union or agency shop clauses, Algoma Plywood & Veneer Co., v. Wisconsin Employment Relations Board, 336 U.S. 301, 69 S.Ct. 584, 93 L.Ed. 691 (1949); Retail Clerks International Ass'n v. Schermerhorn, 373 U.S. 746, 83 S.Ct. 1461, 10 L.Ed.2d 678; 375 U.S. 96, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963), so that union insistence on a security agreement as part of a collective-bargaining agreement may be prohibited in one State and protected or even encouraged in another. The policy choice made by Congress on this matter necessarily subordinated uniformity in national law to what were perceived to be overriding concerns of the States.
96
Other examples are familiar. In United Construction Workers, etc. v. Laburnum Construction Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (1954), the Court upheld a state court damage award for injuries suffered as a result of the tortious conduct of the union's agent, who threatened violence if the company's employees did not join the union. The Court assumed that the union conduct was an unfair labor practice, seeking as it did to interfere with the employee's § 7 right not to join a labor union. But it noted the inadequacy of the existing Board procedure to provide suitable remedies for those injured as a result of the conduct, and was impressed by the fact that to hold the state courts pre-empted 'will, in effect, grant petitioners immunity from liability for their tortious conduct.' The Court found 'no substantial reason for reaching such a result.' 347 U.S., at 664, 74 S.Ct. 837. Accord, International Union, United Automobile, etc., Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958); Linn v. United Plant Guard Workers, 383 U.S. 53, 61—62, 86 S.Ct. 657, 662—663, 15 L.Ed.2d 582 (1966). Again, it is entirely possible that some States will require a greater showing of violence than others before awarding damages, so that behavior that violently seeks to coerce union membership will be prohibited in one State and allowed in another. But the interest in uniformity is subordinated to the larger interests that persons injured by such violence have preserved to them whatever remedies state law may authorize.
97
To summarize, the 'rule' of uniformity that the Court invokes today is at best a tattered one, and at worst little more than a myth. In the name of national labor policy, parties are encouraged by the Board, by Congress, and by this Court to seek other forums if the unfair labor practice arises in an arbitrable dispute, violates the collective-bargaining agreement, or otherwise qualifies as one of the exceptions mentioned.2
98
Until today, Int'l Assn. of Machinists v. Gonzales, supra, had been thought to stand for the proposition that Garmon did not reach cases 'when the possibility of conflict with federal policy is * * * remote.' 356 U.S., at 621, 78 S.Ct., at 925. But with today's emasculation of Gonzales, there is probably little that remains of it. Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), was ostensibly based in part on this rationale, id., at 59—61, 86 S.Ct., at 661—662, but it was equally bottomed on Laburnum Construction and other cases upholding state power to regulate matters of 'overriding state interest' such as violence or, as in Linn, defamation. I see no reason why this exception has not, for all practical purposes, thus expired. In my view, however, and for the reasons set forth in Part II, Gonzales controls this case.3
II
99
There are two broad, but overlapping, relationships among employers, labor unions, and union members. On the one hand, there is the relationship between employer and employee, generally termed labor-management relations, which involves the union at virtually every step, where the employees have chosen to be represented by one. The other relationship, union-member relations, involves the affairs between the union and the employee as union member.
100
In enacting the NLRA in 1935, 49 Stat. 449, Congress defined and prohibited unfair labor practices by employers. Experience under the Act showed that labor organizations were quite as capable as employers of pernicious behavior, and in 1947 Congress enacted the Labor Management Relations Act, 61 Stat. 136, which, among other things, protected employees and employers against certain unfair labor practices by labor organizations that were defined by the Act. Protection given employees, whether union members or not, was primarily job related. Although unions were forbidden to restrain or coerce employees in the exercise of their § 7 rights, Congress expressly negated any intention to 'impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership * * *.' 29 U.S.C. § 158(b)(1). The unmistakable focus of both the NLRA and the LMRA is on labor-management relations, rather than union-member relations, as such.
101
During the 1950's there came to light various patterns of union abuse of power, and in the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 519. Congress acted to correct these evils by directly addressing itself to some aspects of union-member affairs. The LMRDA provides a 'bill of rights,' which gives union members the right to participate in union affairs, to speak freely, and to be protected from arbitrary discipline. It also imposes certain requirements on unions to disclose their financial affairs, regulates union elections, and safeguards labor organizations against unscrupulous agents or officers. Throughout the Act are provisions for civil or criminal enforcement of the Act in federal courts. See 73 Stat. 523, 525, 529—530, 531, 534, 536, 537, 539. But in a crucial departure from what the Court has held the legislative intention was in regulating labor-management relations, the Congress declared:
102
'Except as explicitly provided to the contrary nothing in this Act shall reduce or limit the responsibilities of any labor organization or any officer * * * or other representative of a labor organization * * * under any other Federal law or under the laws of any State, and, except as explicitly provided to the contrary, nothing in this Act shall take away any right or bar any remedy to which members of a labor organization are entitled under such other Federal law or law of any State.' § 603(a), 73 Stat. 540, 29 U.S.C. § 523(a) (emphasis added).
103
If this were not clarity enough, Congress also provided in Title I, the 'bill of rights':
104
'Nothing contained in this title shall limit the rights and remedies of any member of a labor organization under any State or Federal law or before any court or other tribunal, or under the constitution and bylaws of any labor organization.' § 103, 73 Stat. 523, 29 U.S.C. § 413.
105
Beyond any doubt whatever, although Congress directly imposed some farreaching federal prohibitions on union conduct, it specifically denied any pre-emption of rights or remedies created by either state law or union constitutions and bylaws. Thus, as to union-member relations, any parallel rights created by the States, either directly or indirectly through enforcement of union constitutions or bylaws, were to stand at full strength. Congress backed up this power by requiring unions to make available to members the constitution and bylaws of the union, as well as financial information. § 201, 73 Stat. 524, 29 U.S.C. § 431.
106
The LMRDA was a major effort by Congress to regulate the rights and responsibilities of the union-member relationship as such, but, as shown by § 603(a), it was clearly not an attempt to make federal law the exclusive arbiter of this relationship.4 In Gonzales the Court noted that 'the protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law * * *.' 356 U.S., at 620, 78 S.Ct., at 925. Though in the following year the LMRDA certainly 'undertook' to protect members in important respects, it specifically disavowed any notion of pre-empting state law and thus left unimpaired the Gonzales conclusion that state law has a proper role in union-member disputes.5
107
If, as I have attempted to show in Part I, the Board is not the sole arbiter even of federal law and if, as I have also attempted to show, there is room for the operation of state law in certain areas of even labor-management relations, then to me the conclusion is inescapable that in the area of union-member relations, which Congress has not sought to deal with comprehensively and where Congress has preserved state remedies for the very conduct prohibited by federal law, we should be very careful about assuming congressional intention to brush aside local rights and remedies. Indeed, far from pre-empting state law, one of the major thrusts of the LMRDA was to enforce state rights and remedies. At the very least, the inquiry presented by this or any other case dealing with union-member relations cannot be answered by automatic invocation of the purported rule of pre-emption in the name of uniformity.
108
Like many States, Idaho construes the union-member relation to be a contractual one, defined by the constitution and bylaws of the union. As such, the contracts are enforceable through the State's traditional common-law jurisdiction. Here, Lockridge was discharged for alleged nonpayment of dues in accordance with the union constitution and brought suit alleging that he had in fact not been unduly tardy and that the union's action was a breach of the contract. The face of the complaint did not implicate federal law. If the Idaho court were allowed to proceed, it would not have purported to adjudicate an unfair labor practice by reference to federal law, but, if it found the conduct unprotected by federal law, see Part III, infra, would have enforced rights and obligations created by the union constitution. The Court nevertheless holds that because the union conduct alleged in the complaint also constitutes or arguably so, an unfair labor practice, the controversy must be adjudicated by the National Labor Relations Board. I find little in the Court's opinion to convince me that Congress intended this result. With all respect, I agree with Gonzales that this result is at best 'abstractly justifiable, as a matter of wooden logic.' 356 U.S., at 619, 78 S.Ct., at 924.
109
Furthermore, this Court's decision in Smith v. Evening News, supra, seems contrary to the result reached today. Smith held that suits to enforce the collective-bargaining agreement could be brought in state or federal courts under § 301 notwithstanding the fact that the conduct alleged would also constitute an unfair labor practice. Thus, courts enforcing Smith-type actions are dealing in contract rights, not unfair labor practices. There seems little reason why suits for breach of the union-member contract cannot similarly be brought in state courts (or in federal courts in diversity actions), notwithstanding the alternate nature of the behavior as an unfair labor practice.
110
Indeed, § 301 actions are governed by federal law and even here the NLRB does not pre-empt the courts. There is even less justification for precluding actions under state law in the area of union-member relations which Congress has expressly said is not an exclusively federal domain.
111
I find no merit in the argument that Congress passed § 301 though recognizing that some § 301 suits would involve unfair labor practices, but, by not providing analogous federal court jurisdiction for breaches of union constitutions, manifested its expectation that breaches which also involve unfair labor practices should be a matter for Board jurisdiction. Some readily imaginable union actions prohibited by Title I of the LMRDA could be unfair labor practices as well, but by providing for federal suit to enforce the remedies, and leaving state remedies untouched, Congress certainly disavowed, as clearly as if it had said so explicitly, any notion that the Board was to pre-empt other forums in passing on statutory breaches which were also unfair labor practices. Arbitration of grievances is a similar situation, since arbitrators, rather than the Board, construe and enforce contractual rights that are breached in the commission of putative unfair labor practices. See Part I, supra.
III
112
I have attempted to show in Part II that invocation of Garmon-type preemption is inappropriate where a union member brings suit against a union for breach of the union's constitution or bylaws. Wholly apart from such considerations, however, I cannot agree with the opinion of the Court because it reaffirms the Garmon doctrine as applied to conduct arguably protected under § 7, as well as to that arguably prohibited under § 8. The essential difference, for present purposes, between activity that is arguably prohibited and that which is arguably protected is that a hearing on the latter activity is virtually impossible unless one deliberately commits an unfair labor practice. In a typical unfair practice case, by alleging conduct arguably prohibited by § 8 the charging party can at least present the General Counsel with the facts, and if the General Counsel issues a complaint, the charging party can present the Board with the facts and arguments to support the claim. But for activity that is arguably protected, there is no provision for an authoritative decision by the Board in the first instance; yet the Garmon rule blindly pre-empts other tribunals. International Longshoremen's Local 1416, AFL—CIO v. Ariadne Shipping Co., 397 U.S. 195, 201, 90 S.Ct. 872, 875, 25 L.Ed.2d 218 (1970) (White, J., concurring). The Assistant General Counsel of the NLRB has describe the situation:
113
'(A)pplication of the Garmon 'arguably protected' test in this situation leaves the employer's interests in an unsatisfactory condition. The employer cannot obtain relief from the state court with respect to activity that may in fact not be protected by section 7 of the Act, and the only way that he can obtain a Board determination of that question is by resorting to self-help measures; if he guesses wrong, this may subject him not only to a Board remedy but also to tort suits. That result is as undesirable as the 'no-man's land' created by the holding in Guss * * *.' (Footnotes omitted.) Come, Federal Preemption of Labor-Management Relations: Current Problems in the Application of Garmon, 56 Va.L.Rev. 1435, 1444 (1970).
114
I believe that the considerations that justify exceptions to the rule of uniformity apply with greater force to § 7 situations and further, that basic concepts of fundamental fairness regardless of their effect on the model of uniformity, counsel against any rule that so inflexibly bars a hearing.
A.
115
The Assistant General Counsel of the Board has stated the paradox succinctly:
116
'When a union engages in peaceful picketing that is not prohibited by section 8 of the NLRA, a state court cannot enjoin the picketing as a trespass because the activity is 'arguably protected' by section 7. But since there is no unfair labor practice, the employer cannot bring the question before the Board for adjudication. The only way for him to get a Board ruling as to whether the picketing is actually protected is to resort to 'self-help' to expel the pickets, thereby forcing the union to file unfair labor practice charges to which he can raise the status of the picketing as a defense.' Come, supra, at 1437—1438.
117
Though the most natural arena for this conflict occurs when picketers trespass on private property, see Taggart v. Weinacker's, Inc., 397 U.S. 223, 227, 90 S.Ct. 876, 878, 25 L.Ed.2d 240 (1970) (Burger, C.J., concurring), Broomfield, Preemptive Federal Jurisdiction Over Concerted Trespassory Union Activity, 83 Harv.L.Rev. 552 (1970), other instances include 'quickie' strikes or slow-downs, see NLRB v. Holcombe, 325 F.2d 508 (CA 5 1963), or employees' inaccurate complaints to state officials about sanitary conditions in the plant, Walls Mfg. Co. v. NLRB, 116 U.S.App.D.C. 140, 321 F.2d 753 (1963), or collective activity designed to persuade the employer to hire Negroes. NLRB v. Tanner Motor Livery, Ltd., 349 F.2d 1 (CA 9 1965), or failure to participate in a union check-off. Radio Officers' Union etc. v. NLRB, 347 U.S. 17, 24—28, 39—42, 74 S.Ct. 323, 335—337, 98 L.Ed. 455 (1954).
118
There seems little point in a doctrine that, in the name of national policy, encourages the commission of unfair labor practices, the evils which above all else were the object of the Act. Surely the policy of seeking uniformity in the regulation of labor practices must be given closer scrutiny when it leads to the alternative 'solutions' of denying the aggrieved party a hearing or encouraging the commission of a putative unfair labor practice as the price of that hearing.6 Counsel refused to initiate an unfair labor practice complaint. How much more pressing must those considerations be where the Board is in fact barred from regular adjudication. The 'intensely practical considerations' that we felt governed in Vaca, 386 U.S., at 183, 87 S.Ct., at 913, seem even more practical here, especially in view of the concern expressed in Vaca that the aggrieved party be able to obtain a hearing on his complaint. If the possible refusal of the General Counsel to issue a complaint is a prominent reason for refusing to pre-empt the States, I should think that, a fortiori, his inability to act at all is at least as great a justification for doing away with pre-emption in this situation.
119
Finally, it must be mentioned that in precluding the aggrieved party from a hearing, we are following a particularly disfavored course. The importance in our jurisprudence of the opportunity for a hearing need not be reviewed, but at the very least it teaches that where persons with otherwise justiciable claims cannot obtain a hearing under the law, the law is subject to close scrutiny to discover the circumstances compelling this result. There is precious little in the Garmon doctrine that justifies its existence as to § 7 activities under this test. Certainly neither the evidence of congressional intent nor the presumed but overdrawn interest in uniformity is adequate to justify denial of a hearing.
120
Most cases concerning the hearing requirement are those where some adverse consequence is visited upon the individual unless he can explain his side of the story, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), or where there is continuing conflict and dissatisfaction with no tribunal available to fashion relief. Cf. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). The problems seem similar to those facing us here. In a § 7 case, the employer is faced with, for example, picketing that turns away customers and suppliers and inflicts progressive economic injury on the employer. For a small businessman with no forum available for relief, the effect is similar to a wage earner who finds that claims of another have cut his take-home pay in half. Cf. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).
121
The majority's treatment of this important issue is deficient. It says only that treating judicial power to deal with arguably protected activity different from the power to deal with prohibited activity would be 'unsatisfactory,' since '(b)oth areas equally involve conduct whose legality is governed by federal law, the application of which Congress committed to the Board, not courts.' Ante, at 290. I have no quarrel with the first point—by definition federal law will determine if federal law protects the conduct from state proscription; but I hardly see how that alone pre-empts state courts. See Dowd Box, Lucas Flour, Smith v. Evening News; Local 20 Teamsters, Chauffeurs and Helpers Union v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964). As to the second point, the fact is that Congress has not committed the arguably protected area exclusively to the Board. It has provided no mechanism for § 7 cases to get before the Board except where conduct threatens § 7 rights; nor has its functionary, the Board, opened a path to its door for those who seek to ascertain whether conduct threatening them is truly protected by federal law and hence unassailable under local law. Congress found the no-man's land created by Guss unacceptable precisely because there was no way to have rights determined. In terms of congressional intention I find it unsupportable to hold that one threatened by conduct illegal under state law may not proceed against it because it is arguably protected by federal law when he has absolutely no lawful method for detemining whether that is actually, as well as arguably, the case. Particularly is this true where the dispute is between a union and its members and the latter are asserting claims under state law bases on the union constitution. I would permit the state court to entertain the action and if the union defends on the ground that its conduct is protected by federal law, to pass on that claim at the outset of the proceeding. If the federal law immunizes the challenged union action, the case is terminated; but if not, the case is adjudicated under state law.
122
Mr. Justice BLACKMUN also dissents for the basic reasons set forth by Mr. Justice DOUGLAS and Mr. Justice WHITE in their respective dissenting opinions.
1
The local and its parent are, of course, separate legal entities for many purposes and were joined as codefendants below so that each appears as a petitioner in this Court. However both will be jointly described throughout this opinion as 'the petitioner' or 'the Union' since the parent was held liable on the theory that it was responsible for the acts of the local here involved, not on the basis of any separate acts committed only by the parent.
2
Because the Idaho courts treated as irrelevant the actual motivation for the Union's conduct, see Part III, infra, the trial court did not incorporate in its formal findings of fact and conclusions of law any reference to this checkoff dispute. However, some such evidence was allowed at trial, as well as testimony about the Union's past practice regarding dues-delinquent members, on the theory that this might ultimately bear on the issue whether Lockridge had properly exhausted his administrative remedies. The trial judge in his initial memorandum decision, however, did indicate his belief that 'the true facts are' as stated in the text accompanying this footnote.
3
It appears that at least one other person, Elmer Day, was similarly suspended from membership in the Union and discharged from Greyhound. On November 12, 1959, he filed a formal charge with the Board's Regional Director. On December 15, 1959, the Director advised Day, by letter, that 'it appears that, because there is insufficient evidence of violations, further proceedings are not warranted at this time. I am therefore refusing to issue Complaint in these matters.' The Director further informed Day that 'you may obtain a review of this action by filing a request for such review with the General Counsel of the National Labor Relations Board * * *.' Day did not seek review. Instead, he filed suit against the Union in the Circuit Court of Multnomah County, Oregon, for tortious interference with employment, and obtained a jury award for general and punitive damages. On appeal, the Supreme Court of Oregon (two judges dissenting) reversed, holding the conduct complained of to be within the Board's exclusive jurisdiction. Day v. Northwest Division 1055, 238 Or. 624, 389 P.2d 42 (1964). (Some of these facts are taken from the dissenting opinion in that case.)
4
For a discussion of these problems that formed a backdrop for the federal act, see H. Wellington, Labor and the Legal Process, c. 1 (1968). See also Cox, Federalism in the Law of Labor Relations, 67 Harv.L.Rev. 1297, 1302—1304, 1315—1317 (1954).
5
This appears to be the precise point of difference between our assessment of congressional purpose and that of Mr. Justice WHITE. While it is not clear how he would treat the Garmon principle where the conflict is between unions and employers, he expressly argues that state power to regulate union conduct harmful to its members that is within the compass of the National Labor Relations Act should be unlimited, except by the obvious qualification that States may not punish conduct affirmatively protected by federal law. Thus, in his view, when it enacted the NLRA, Congress would have fully served those interests it intended to promote in the conduct of union-member relations had it simply declared that the States may not proscribe certain, defined conduct. Certainly, he is prepared to adopt a judicial construction of the Act that is consistent only with such a view of congressional intent. At bottom, what his position seems to imply is that giving the National Labor Relations Board jurisdiction to enforce federal law regulating the use of union security clauses was largely, if not wholly, without rational purpose. As we have explained at some length above, we do not understand how courts may properly take such a limited view of congressional intent in the face of legislation that is in fact much more wide ranging, and in the absence of a contrary expression of intention from Congress itself.
Further, Mr. Justice WHITE apparently regards the remedial aspects of the federal scheme as unimportant to those who designed it. For example, assuming arguendo that petitioner's conduct was prohibited under both federal and state law, he would deem it of no national significance if one State punished such conduct with a jail sentence, and another utilized punitive damages, while the NLRB merely awarded back pay. His position apparently is that Congress considered any state tribunal equally capable, with the Board, of assessing the appropriateness of a given remedy and was unconcerned about disparities in the reactions of the States to unlawful union behavior. Thus argument, too, seems incompatible with the simple fact that Congress committed enforcement of the federal law here involved to a centralized agency.
For these reasons, Mr. Justice WHITE's analogies do not persuade us. Unlike the problem here under review, Congress did not put enforcement of the Labor-Management Reporting and Disclosure Act of 1959 into the hands of the Board. 73 Stat. 519. And it affirmatively expressed an intention that the Board not possess pre-emptive jurisdiction over suits to enforce collective bargaining agreements. See Part III, infra.
6
The objections raised to this latter point, post, at 325 332 (WHITE, J., dissenting), seem largely irrelevant to the case under review. This is not a situation where the sole argument for pre-emption is that the union's conduct was arguably protected. Clearly, if the facts are as respondent believes them to be, there is ample reason to conclude that petitioner probably committed an unfair labor practice.
7
Garmon itself recognized that Russell permitted state courts 'to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminent threats to the public order.' 359 U.S., at 247, 79 S.Ct., at 781. However, whereas the Court in Russell had justified that result principally upon the broad grounds that state law not specifically relating to labor relations per se was not pre-empted by the Act, the Court in Garmon restated this result as dictated by 'the compelling state interest, in the scheme of our federalism, in the maintenance of domestic peace (which) is not overridden in the absence of clearly expressed congressional direction.' Ibid. It is, of course, this latter and narrower rationale that survives today.
8
It may be that a similar exception would arise where the Board affirmatively indicates that, in its view, pre-emption would not be appropriate. Cf. post, at 310—312, 319 n. 2 (WHITE, J., dissenting). As the Board's amicus brief in the instant case makes clear, no such question is now before us.
9
Indeed, Mr. Justice WHITE'S dissenting opinion fails to demonstrate the need for such a departure from our traditional judicial role. On the contrary, he affirmatively establishes that Congress has taken an active, conscious role in apportioning power to deal with controversies implicating federal labor law among various competent tribunals.
1
For the backlog of the Board see 34th Annual Report of NLRB for fiscal year 1969. Table 1, p. 196, shows the following number of unfair labor practice cases:
Pending July 1, 1968................................... 7,377
Received fiscal 1969.................................. 18,651
On docket fiscal 1969................................. 26,028
Closed fiscal 1969.................................... 18,939
Pending June 30, 1969................................. 7.089
Table 8, p. 212, shows that the 18,939 unfair labor practice cases in 1969 were closed as follows:
Before issuance of complaint........................ 16,135
After issuance of complaint,
before opening of hearing........................... 1,251
After hearing opened, before
issuance of Trial Examiner's
decision.............................................. 186
After Trial Examiner's
decision, before issuance of
Board decision........................................ 134
After Board order adopting
Trial Examiner's decision in
absence of exceptions.. 131
After Board decision, before
circuit court decree.................................. 606
After circuit court decree,
before Supreme Court action........................... 427
After Supreme Court action.............................. 69
Of the foregoing—
31% were dismissed before complaint.
24.9% were settled and adjusted.
36% were withdrawn before complaint.
In only 5.7% did the Board issue orders. Id., at 4.
2
Since we have yet to rule on the reviewability of the refusal of the General Counsel to act, that route might be open although at present the authority is to the contrary. See A. Cox & D. Bok, Labor Law 138 (7th ed. 1969).
3
Under § 10(c) of the Act, 29 U.S.C. § 160(c), the Board can award back pay against an employer, Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 and the Board will order back pay against a union where it causes an employer to discriminate against an employee. See International Association of Heat & Frost Insulators, Local 84, 146 N.L.R.B. 660; United Mine Workers (Blue Diamond Coal Co.), 143 N.L.R.B. 795.
1
This obviously does not apply unless the parties have agreed to arbitrate. Cf. Smith v. Evening News Assn., 371 U.S. 195, 196 n. 1, 83 S.Ct. 267, 268, 9 L.Ed.2d 246 (1962).
2
A possible addition to the list of exceptions is the provision of § 10(a), 29 U.S.C. § 160(a), which allows the Board to cede jurisdiction over labor disputes to state agencies if state law is not inconsistent with federal law. However, this provision has never been invoked by the Board. American Bar Assn., The Developing Labor Law 807 (C. Morris ed., 1971).
3
With all respect, the majority's attempt to distinguish the instant case from Gonzales is unpersuasive. According to the majority, 'The reasons for Gonzales' deprivation of union membership had nothing to do with matters of employment, while Lockridge's cause of action and claim for damages were based solely upon the procurement of his discharge from employment.' Ante, at 296. In the first place, Lockridge squarely alleged that his damages had been caused by suspension from union membership contrary to the constitution and laws of the union; his cause of action was bottomed upon this breach of duty by the union. More importantly, it is inaccurate to imply, as the foregoing quoted statement does, that Lockridge is somehow different from Gonzales in that Gonzales' 'deprivation of union membership' did not result in his loss of employment. The Gonzales Court said, 'The evidence adduced at the trial showed that plaintiff, because of his loss of membership, was unable to obtain employment and was thereby damaged. * * * (T)his damage was not charged nor treated as the result of an unfair labor practice but as a result of the breach of contract.' 356 U.S., at 622 n., 78 S.Ct., at 926 (Quoting the California court's opinion.) (Emphasis added.)
4
Not only were the rights and obligations created by the LMRDA made supplemental to state law, but large areas of union-member relations were left untouched. For instance, Title I provides that 'nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution * * *.' § 101(a)(2), 73 Stat. 522, 29 U.S.C. § 411(a)(2). Precisely what a union member may be required to do as part of his 'responsibility * * * toward the organization as an institution' is obviously far ranging, and Congress could no doubt have defined those responsibilities had it chosen to do so. For another instance, Congress protected the right of the union member to sue a labor organization, but conditioned this on whatever exhaustion of 'reasonable hearing procedures * * * within such organization' the union may require. § 101(a)(4), 29 U.S.C. § 411(a)(4). When compared to the step-by-step statutory procedure required for the adjudication of unfair labor practices, 29 U.S.C. § 160, it is clear that Congress meant to leave some flexibility to the unions in dealing with member complaints. Still other examples may be seen by noting what Congress omitted even from mention. Perhaps most important of all in this context is the fact that Congress provided for no central agency, such as it had in the NLRA, to administer the Act. Although the Secretary of Labor has in some respects a major role in implementing the Act, disputes arising under the Act are for the courts in the first instance.
5
The majority's opinion simply refuses to face this issue. There is no 'absence of a contrary expression of intention from Congress,' as the majority contends. See ante, at 288, n. 5. When Congress addressed itself to union-member relations as such it specifically preserved existing state remedies even though there may be federal remedies to redress the same conduct.
6
Perhaps the tools with which the Board can fashion relief in this area are already at hand, in the form of the declaratory order. Such an order is binding on the agency and is judicially reviewable. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 372 n. 3, 89 S.Ct. 1794, 1797, 23 L.Ed.2d 371 (1969); Frozen Food Express v. United States, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 910 (1956); Rochester Telephone Corp. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147 (1939); Pennsylvania R. Co. v. United States, 363 U.S. 202, 80 S.Ct. 1131, 4 L.Ed.2d 1165 (1960). The NLRA gives the Board 'authority * * * to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act, such rules and regulations as may be necessary to carry out the provisions' of the NLRA. § 6, 29 U.S.C. § 156. The Administrative Procedure Act, in turn, specifically provides that agencies may issue declaratory orders 'as in the case of other orders, and in its sound discretion' in order to 'terminate a controversy or remove uncertainty.' 5 U.S.C. § 554(e) (1970 ed.). The Board currently provides for declaratory orders in only a few situations, such as for determination of the commercial impact aspect of the jurisdictional issue where the employer has both unfair labor practice charges and representation proceedings pending before the Board, 29 CFR §§ 102.105—102.110. The use of declaratory orders in unfair labor practice proceedings is non-existent, and the same seems to be true for determining whether or not activities arguably subject to § 7 are protected. See Hickey, Declaratory Orders and the National Labor Relations Board, 45 Notre Dame Law 89, 106 (1969).
Before an agency may issue a declaratory order, it must have independent subject matter jurisdiction. But we held in Red Lion, supra, that the FCC's declaratory order in that case could be sustained on any of several grounds including the requirement that the FCC see that the 'public interest be served' in granting and renewing licenses. So here, the argument for Board jurisdiction would be that it is empowered to 'prevent any person from engaging in any unfair labor practice.' 29 U.S.C. § 160(a). If, as pointed out earlier, the price of not resorting to an adequate forum for resolution of the § 7 status can be the commission of an unfair labor practice, the power of the Board to prevent unfair labor practices gives it jurisdiction to issue such § 7 declaratory orders. Such an order finding certain conduct protected would override state law, but would be reviewable. If the conduct was found unprotected, there would be no barrier to suits based on state law.
Page 329
B
The exceptions to the pre-emption rule are so many and so important as to cast substantial doubt on the Court's uncritical resort to it, as I have attempted to show in Part I. When considered in conjunction with arguably protected activity, however, these exceptions do more than mock the rule; they illustrate substantively why invocation of the rule against such activity is a disservice to the greater interests of national labor policy. For example, the refusal to pre-empt arbitrable disputes serves the policy of encouraging arbitration, a policy universally agreed to be of greater importance than uniformity. See Part I, supra. The policy at stake in § 7 cases is simply to secure a resolution of the dispute rather than none at all. Yet the Court's opinion would insist on pre-empting such disputes from the States even though there is no way to present them to the Board. If the Board refused to hear a dispute alleging an unfair labor practice because it wished to encourage arbitration, but ignored the fact that the parties had no arbitration clause in their contract, we could hardly consider arbitration to have been encouraged. But, with all respect, the Court's opinion today is just as exasperating.
Similarly, in holding that alleged breaches of the union's duty of fair representation were not pre-empted, Vaca v. Sipes, supra, the Court was apprehensive that the worker would be without a forum if the General
| 67
|
403 U.S. 365
91 S.Ct. 1848
29 L.Ed.2d 534
John O. GRAHAM, Commissioner, Department of Public Welfare, State of Arizona, Appellant,v.Carmen RICHARDSON, Etc. William P. SAILER et al., Appellants, v. Elsie Mary Jane LEGER and Beryl Jervis.
Nos. 609, 727.
Argued March 22, 1971.
Decided June 14, 1971.
Syllabus
State statutes, like the Arizona and Pennsylvania statutes here involved, that deny welfare benefits to resident aliens or to aliens who have not resided in the United States for a specified number of years are violative of the Equal Protection Clause and encroach upon the exclusive federal power over the entrance and residence of aliens; and there is no authorization for Arizona's 15-year durational residency requirement in § 1402(b) of the Social Security Act. Pp. 370—383.
313 F.Supp. 34 and 321 F.Supp. 250, affirmed.
Michael S. Flam, Phoenix, Ariz., for appellant John O. Graham.
Joseph P. Work for appellants William P. Sailer and others.
Anthony B. Ching, Cambridge, Mass., for appellee Carmen Richardson.
Jonathan M. Stein, Philadelphia, Pa., for appellees Elsie Mary Jane Leger and Beryl Jervis pro hac vice, by special leave of Court.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
These are welfare cases. They provide yet another aspect of the widening litigation in this area.1 The issue here is whether the Equal Protection Clause of the Fourteenth Amendment prevents a State from conditioning welfare benefits either (a) upon the beneficiary's possession of United States citizenship, or (b) if the beneficiary is an alien, upon his having resided in this country for a specified number of years. The facts are not in dispute.
2
* No. 609. This case, from Arizona, concerns the State's participation in federal categorical assistance programs. These programs originate with the Social Security Act of 1935, 49 Stat. 620, as amended, 42 U.S.C., c. 7. They are supported in part by federal grants-in-aid and are administered by the States under federal guidelines. Arizona Rev.Stat.Ann., Tit. 46, Art. 2, as amended, provides for assistance to persons permanently and totally disabled (APTD). See 42 U.S.C. §§ 1351 1355. Arizona Rev.Stat.Ann. § 46—233 (Supp.1970—1971), as amended in 1962, reads:
3
'A. No person shall be entitled to general assistance who does not meet and maintain the following requirements:
4
'1. Is a citizen of the United States, or has resided in the United States a total of fifteen years. * * *'
5
A like eligibility provision conditioned upon citizenship or durational residence appears in § 46—252(2), providing old-age assistance, and in § 46—272(4), providing assistance to the needy blind. See 42 U.S.C. §§ 1201—1206, 1381—1385.
6
Appellee Carmen Richardson, at the institution of this suit in July 1969, was 64 years of age. She is a lawfully admitted resident alien. She emigrated from Mexico in 1956 and since then has resided continuously in Arizona. She became permanently and totally disabled. She also met all other requirements for eligibility for APTD benefits except the 15-year residency specified for aliens by § 46—233(a)(1). She applied for benefits but was denied relief solely because of the residency provision.
7
Mrs. Richardson instituted her class action2 in the District of Arizona against the Commissioner of the State's Department of Public Welfare seeking declaratory relief, an injunction against the enforcement of §§ 46— 233(A)(1), 46—252(2) AND 46—272(4), AND THE award of amounts allegedly due. She claimed that Arizona's alien residency requirements violate the Equal Protection Clause and the constitutional right to travel; that they conflict with the Social Security Act and are thus overborne by the Supremacy Clause; and that the regulation of aliens has been pre-empted by Congress.
8
The three-judge court upheld Mrs. Richardson's motion for summary judgment on equal protection grounds. Richardson v. Graham, 313 F.Supp. 34 (Ariz. 1970). It did so in reliance on this Court's opinions in Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948), and Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). The Commissioner appealed. The judgment was stayed as to all parties plaintiff other than Mrs. Richardson. Probable jurisdiction was noted. 400 U.S. 956, 91 S.Ct. 353, 27 L.Ed.2d 264 (1970).
9
No. 727. This case, from Pennsylvania, concerns that portion of a general assistance program that is not federally supported. The relevant statute is § 432(2) of the Pennsylvania Public Welfare Code, Pa.Stat.Ann., Tit. 62, § 432(2) (1968),3 originally enacted in 1939. It provides that those eligible for assistance shall be (1) needy persons who qualify under the federally supported categorical assistance programs and (2) those other needy persons who are citizens of the United States. Assistance to the latter group is funded wholly by the Commonwealth.
10
Appellee Elsie Mary Jane Leger is a lawfully admitted resident alien. She was born in Scotland in 1937. She came to this country in 1965 at the age of 28 under contract for domestic service with a family in Havertown. She has resided continuously in Pennsylvania since then and has been a taxpaying resident of the Commonwealth. In 1967 she left her domestic employment to accept more remunerative work in Philadelphia. She entered into a common-law marriage with a United States citizen. In 1969 illness forced both Mrs. Leger and her husband to give up their employment. They applied for public assistance. Each was ineligible under the federal programs. Mr. Leger, however, qualified for aid under the state program. Aid to Mrs. Leger was denied because of her alienage. The monthly grant to Mr. Leger was less than the amount determined by both federal and Pennsylvania authorities as necessary for a minimum standard of living in Philadelphia for a family of two.
11
Mrs. Leger instituted her class action4 in the Eastern District of Pennsylvania against the Executive Director of the Philadelphia County Board of Assistance and the Secretary of the Commonwealth's Department of Public Welfare. She sought declaratory relief, an injunction against the enforcement of the restriction of § 432(2), and the ordering of back payments wrongfully withheld. She obtained a temporary restraining order preventing the defendants from continuing to deny her assistance. She then began to receive, and still receives, with her husband, a public assistance grant.
12
Appellee Beryl Jervis was added as a party plaintiff to the Leger action. She was born in Panama in 1912 and is a citizen of that country. In March 1968, at the age of 55, she came to the United States to undertake domestic work under contract in Philadelphia. She has resided continuously in Pennsylvania since then and has been a taxpaying resident of the Commonwealth. After working as a domestic for approximately one year, she obtained other, more remunerative, work in the city. In February 1970 illness forced her to give up her employment. She applied for aid. However, she was ineligible for benefits under the federally assisted programs and she was denied general assistance solely because of her alienage. Her motion for immediate relief through a temporary restraining order was denied.
13
It was stipulated that 'the denial of General Assistance to aliens otherwise eligible for such assistance causes undue hardship to them by depriving them of the means to secure the necessities of life, including food, clothing and shelter,' and that 'the citizenship bar to the receipt of General Assistance in Pennsylvania discourages continued residence in Pennsylvania of indigent resident aliens and causes such needy persons to remove to other States which will meet their needs.'
14
The three-judge court, one judge dissenting, ruled that § 432(2) was violative of the Equal Protection Clause and enjoined its further enforcement. Leger v. Sailer, 321 F.Supp. 250 (ED Pa.1970). The defendants appealed. Probable jurisdiction was noted. 400 U.S. 956, 91 S.Ct. 355, 27 L.Ed.2d 264.
II
15
The appellants argue initially that the States, consistent with the Equal Protection Clause, may favor United States citizens over aliens in the distribution of welfare benefits. It is said that this distinction involves no 'invidious discrimination' such as was condemned in King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), for the State is not discriminating with respect to race or nationality.
16
The Fourteenth Amendment provides, '(N)or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' It has long been settled, and it is not disputed here, that the term 'person' in this context encompasses lawfully admitted resident aliens as well as citizens of the United States and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside. Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886); Truax v. Raich, 239 U.S. 33, 39, 36 S.Ct. 7, 9, 60 L.Ed. 131 (1915); Takahashi v. Fish & Game Comm'n, 334 U.S., at 420, 68 S.Ct., at 1143. Nor is it disputed that the Arizona and Pennsylvania statutes in question create two classes of needy persons, indistinguishable except with respect to whether they are or are not citizens of this country. Otherwise qualified United States citizens living in Arizona are entitled to federally funded categorical assistance benefits without regard to length of national residency, but aliens must have lived in this country for 15 years in order to qualify for aid. United States citizens living in Pennsylvania, unable to meet the requirements for federally funded benefits, may be eligible for state-supported general assistance, but resident aliens as a class are precluded from that assistance.
17
Under traditional equal protection principles, a State retains broad discretion to classify as long as its classification has a reasonable basis. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55L.Ed. 369 (1911); Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955); Morey v. Doud, 354 U.S. 457, 465, 77 S.Ct. 1344, 1350, 1 L.Ed.2d 1485 (1957); McGowan v. Maryland, 366 U.S. 420, 425—427, 81 S.Ct. 1101, 1106, 6 L.Ed.2d 393 (1961). This is so in 'the area of economics and social welfare.' Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). But the Court's decisions have established that classifications based on alienage, like those based on nationality5 or race,6 are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a 'discrete and insular' minority (see United States v. Carolene Products Co., 304 U.S. 144, 152—153, n. 4, 58 S.Ct. 778, 783—784, 82 L.Ed. 1234 (1938)) for whom such heightened judicial solicitude is appropriate. Accordingly, it was said in Takahashi, 334 U.S., at 420, 68 S.Ct., at 1143, that 'the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.'
18
Arizona and Pennsylvania seek to justify their restrictions on the eligibility of aliens for public assistance solely on the basis of a State's 'special public interest' in favoring its own citizens over aliens in the distribution of limited resources such as welfare benefits. It is true that this Court on occasion has upheld state statutes that treat citizens and noncitizens differently, the ground for distinction having been that such laws were necessary to protect special interests of the State or its citizens. Thus, in Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915), the Court, in striking down an Arizona statute restricting the employment of aliens, emphasized that '(t)he discrimination defined by the act does not pertain to the regulation or distribution of the public domain, or of the common property or resources of the people of the state, the enjoyment of which may be limited to its citizens as against both aliens and the citizens of other states.' 239 U.S., at 39—40, 36 S.Ct., at 10. And in Crane v. New York, 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218 (1915), the Court affirmed the judgment in People v. Crane, 214 N.Y. 154, 108 N.E. 427 (1915), upholding a New York statute prohibiting the employment of aliens on public works projects. The New York court's opinion contained Mr. Justice Cardozo's wellknown observation:
19
'To disqualify aliens is discrimination indeed, but not arbitrary discrimination, for the principle of exclusion is the restriction of the resources of the state to the advancement and profit of the members of the state. Ungenerous and unwise such discrimination may be. It is not for that reason unlawful. * * * The state in determining what use shall be made of its own moneys, may legitimately consult the welfare of its own citizens, rather than that of aliens. Whatever is a privilege, rather than a right, may be made dependent upon citizenship. In its war against poverty, the state is not required to dedicate its own resources to citizens and aliens alike.' 214 N.Y., at 161, 164, 108 N.E., at 429, 430.
20
See Heim v. McCall, 239 U.S. 175, 36 S.Ct. 78, 60 L.Ed. 206 (1915); Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392, 47 S.Ct. 630, 71 L.Ed. 1115 (1927). On the same theory, the Court has upheld statutes that, in the absence of overriding treaties, limit the right of noncitizens to engage in exploitation of a State's natural resources,7 restrict the devolution of real property to aliens,8 or deny to aliens the right to acquire and own land.9
21
Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948), however, cast doubt on the continuing validity of the special public-interest doctrine in all contexts. There the Court held that California's purported ownership of fish in the ocean off its shores was not such a special public interest as would justify prohibiting aliens from making a living by fishing in those waters while permitting all others to do so. It was said:
22
'The Fourteenth Amendment and the laws adopted under its authority thus embody a general policy that all persons lawfully in this country shall abide 'in any state' on an equality of legal privileges with all citizens under nondiscriminatory laws.' 334 U.S., at 420, 68 S.Ct., at 1143.
23
Whatever may be the contemporary vitality of the special public-interest doctrine in other contexts after Takahashi, we conclude that a State's desire to preserve limited welfare benefits for its own citizens is inadequate to justify Pennsylvania's making noncitizens ineligible for public assistance, and Arizona's restricting benefits to citizens and longtime resident aliens. First, the special public interest doctrine was heavily grounded on the notion that '(w)hatever is a privilege, rather than a right, may be made dependent upon citizenship.' People v. Crane, 214 N.Y., at 164, 108 N.E., at 430. But this Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a 'right' or as a 'privilege.' Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965 (1963); Shapiro v. Thompson, 394 U.S., at 627 n. 6, 89 S.Ct., at 1327; Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970); Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971). Second, as the Court recognized in Shapiro:
24
'(A) State has a valid interest in preserving the fiscal integrity of its programs. It may legitimately attempt to limit its expenditures, whether for public assistance, public education, or any other program. But a State may not accomplish such a purpose by invidious distinctions between classes of its citizens. * * * The saving of welfare costs cannot justify an otherwise invidious classification.' 394 U.S., at 633, 89 S.Ct., at 1330.
25
Since an alien as well as a citizen is a 'person' for equal protection purposes, a concern for fiscal integrity is no more compelling a justification for the questioned classification in these cases than it was in Shapiro.
26
Appellants, however, would narrow the application of Shapiro to citizens by arguing that the right to travel, relied upon in that decision, extends only to citizens and not to aliens. While many of the Court's opinions do speak in terms of the right of 'citizens' to travel,10 the source of the constitutional right to travel has never been ascribed to any particular constitutional provision. See Shapiro v. Thompson, 394 U.S., at 630 n. 8, 89 S.Ct., at 1329; United States v. Guest, 383 U.S. 745, 757—758, 86 S.Ct. 1170, 1177—1178, 16 L.Ed.2d 239 (1966). The Court has never decided whether the right applies specifically to aliens, and it is unnecessary to reach that question here. It is enough to say that the classification involved in Shapiro was subjected to strict scrutiny under the compelling state interest test, not because it was based on any suspect criterion such as race, nationality, or alienage, but because it impinged upon the fundamental right of interstate movement. As was said there, 'The waiting-period provision denies welfare benefits to otherwise eligible applicants solely because they have recently moved into the jurisdiction. But in moving from State to State or to the District of Columbia appellees were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.' 394 U.S., at 634, 89 S.Ct., at 1331. The classifications involved in the instant cases, on the other hand, are inherently suspect and are therefore subject to strict judicial scrutiny whether or not a fundamental right is impaired. Appellants' attempted reliance on Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), is also misplaced, since the classification involved in that case (family size) neither impinged upon a fundamental constitutional right nor employed an inherently suspect criterion.
27
We agree with the three-judge court in the Pennsylvania case that the 'justification of limiting expenses is particularly inappropriate and unreasonable when the discriminated class consists of aliens. Aliens like citizens pay taxes and may be called into the armed forces. Unlike the short-term residents in Shapiro, aliens may live within a state for many years, work in the state and contribute to the economic growth of the state.' 321 F.Supp., at 253. See also Purdy & Fitzpatrick v. California, 71 Cal.2d 566, 581—582, 79 Cal.Rptr. 77, 456 P.2d 645, 656 (1969). There can be no 'special public interest' in tax revenues to which aliens have contributed on an equal basis with the residents of the State.
28
Accordingly, we hold that a state statute that denies welfare benefits to resident aliens and one that denies them to aliens who have not resided in the United States for a specified number of years violate the Equal Protection Clause.
III
29
An additional reason why the state statutes at issue in these cases do not withstand constitutional scrutiny emerges from the area of federal-state relations. The National Government has 'broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization.' Takahashi v. Fish & Game Comm'n, 334 U.S., at 419, 68 S.Ct., at 1142; Hines v. Davidowitz, 312 U.S. 52, 66, 61 S.Ct. 399, 403, 85 L.Ed. 581 (1941); see also Chinese Exclusion Case, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889); United States ex rel. Turner v. Williams, 194 U.S. 279, 24 S.Ct. 719, 48 L.Ed. 979 (1904); Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893); Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1952). Pursuant to that power, Congress has provided, as part of a comprehensive plan for the regulation of immigration and naturalization, that '(a)liens who are paupers professional beggars, or vagrants' or aliens who 'are likely at any time to become public charges' shall be excluded from admission into the United States, 8 U.S.C. §§ 1182(a)(8) and 1182(a)(15), and that any alien lawfully admitted shall be deported who 'has within five years after entry become a public charge from causes not affirmatively shown to have arisen after entry. * * *' 8 U.S.C. § 1251(a)(8). Admission of aliens likely to become public charges may be conditioned upon the posting of a bond or cash deposit. 8 U.S.C. § 1183. But Congress has not seen fit to impose any burden or restriction on aliens who become indigent after their entry into the United States. Rather, it has broadly declared: 'All persons within the jurisdiction of the United States shall have the same right in every State and Territory * * * to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. * * *' 42 U.S.C. § 1981. The protection of this statute has been held to extend to aliens as well as to citizens. Takahashi, 334 U.S., at 419 n. 7, 68 S.Ct., at 1142. Moreover, this Court has made it clear that, whatever may be the scope of the constitutional right of interstate travel, aliens lawfully within this country have a right to enter and abide in any State in the Union 'on an equality of legal privileges with all citizens under nondiscriminatory laws.' Takahashi, 334 U.S., at 420, 68 S.Ct., at 1143.
30
State laws that restrict the eligibility of aliens for welfare benefits merely because of their alienage conflict with these overriding national policies in an area constitutionally entrusted to the Federal Government. In Hines v. Davidowitz, 312 U.S., at 66—67, 61 S.Ct., at 403—404, where this Court struck down a Pennsylvania alien registration statute (enacted in 1939, as was the statute under challenge in No. 727) on grounds of federal pre-emption, it was observed that 'where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation * * * states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.' And in Takahashi it was said that the States
31
'can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived federal power to regulate immigration, and have accordingly been held invalid.' 334 U.S., at 419, 68 S.Ct., at 1142.
32
Congress has broadly declared as federal policy that lawfully admitted resident aliens who become public charges for causes arising after their entry are not subject to deportation, and that as long as they are here they are entitled to the full and equal benefit of all state laws for the security of persons and property. The state statutes at issue in the instant cases impose auxiliary burdens upon the entrance or residence of aliens who suffer the distress, after entry, of economic dependency on public assistance. Alien residency requirements for welfare benefits necessarily operate, as did the residency requirements in Shapiro, to discourage entry into or continued residency in the State. Indeed, in No. 727 the parties stipulated that this was so.
33
In Truax the Court considered the 'reasonableness' of a state restriction on the employment of aliens in terms of its effect on the right of a lawfully admitted alien to live where he chooses:
34
'It must also be said that reasonable classification implies action consistent with the legitimate interests of the state, and it will not be disputed that these cannot be so broadly conceived as to bring them into hostility to exclusive Federal power. The authority to control immigration—to admit or exclude aliens—is vested solely in the Federal Government. * * * The assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the state would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work. And, if such a policy were permissible, the practical result would be that those lawfully admitted to the country under the authority of the acts of Congress, instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segregated in such of the states as chose to offer hospitality.' 239 U.S., at 42, 36 S.Ct., at 11.
35
The same is true here, for in the ordinary case an alien, becoming indigent and unable to work, will be unable to live where, because of discriminatory denial of public assistance, he cannot 'secure the necessities of life, including food, clothing and shelter.' State alien residency requirements that either deny welfare benefits to noncitizens or condition them on longtime residency, equate with the assertion of a right, inconsistent with federal policy, to deny entrance and abode. Since such laws encroach upon exclusive federal power, they are constitutionally impermissible.
IV
36
Arizona suggests, finally, that its 15-year durational residency requirement for aliens is actually authorized by federal law. Reliance is placed on § 1402(b) of the Social Security Act of 1935, added by the Act of Aug. 28, 1950, § 351, 64 Stat. 556, as amended, 42 U.S.C. § 1352(b). That section provides:
37
'The Secretary shall approve any plan which fulfills the conditions specified in subsection (a) of this section, except that he shall not approve any plan which imposes, as a condition of eligibility for aid to the permanently and totally disabled under the plan—
38
* * * * * *
39
'(2) Any citizenship requirement which excludes any citizen of the United States.'11
40
The meaning of this provision is not entirely clear. On its face, the statute does not affirmatively authorize, much less command, the States to adopt durational residency requirements or other eligibility restrictions applicable to aliens; it merely directs the Secretary not to approve state-submitted plans that exclude citizens of the United States from eligibility. Cf. Shapiro v. Thompson, 394 U.S., at 638—641, 89 S.Ct., at 1333—1335.
41
We have been unable to find in the legislative history of the 1950 amendments any clear indication of congressional intent in enacting § 1402(b).12 The provision appears to have its roots in identical language of the old-age assistance and aid-to-the-blind sections of the Social Security Act of 1935 as originally enacted. 49 Stat. 620, 42 U.S.C. § 302(b); 49 Stat. 645, 42 U.S.C. § 1202(b). The House and Senate Committee Reports expressly state, with reference to old-age assistance, that:
42
'A person shall not be denied assistance on the ground that he has not been a United States citizen for a number of years, if in fact, when he receives assistance, he is a United States citizen. This means that a State may, if it wishes, assist only those who are citizens, but must not insist on their having been born citizens or on their having been naturalized citizens for a specified period of time.'13
43
It is apparent from this that Congress' principal concern in 1935 was to prevent the States from distinguishing between native-born American citizens and naturalized citizens in the distribution of welfare benefits. It may be assumed that Congress was motivated by a similar concern in 1950 when it enacted § 1402(b). As for the indication in the 1935 Committee Reports that the States, in their discretion, could withhold benefits from noncitizens, certain members of Congress simply may have been expressing their understanding of the law only insofar as it had then developed, that is, before Takahashi was decided. But if § 1402(b), as well as the identical provisions for old-age assistance and aid to the blind, were to be read so as to authorize discriminatory treatment of aliens at the option of the States, Takahashi demonstrates that serious constitutional questions are presented. Although the Federal Government admittedly has broad constitutional power to determine what aliens shall be admitted to the United States, the period they may remain, and the terms and conditions of their naturalization, Congress does not have the power to authorize the individual States to violate the Equal Protection Clause. Shapiro v. Thompson, 394 U.S., at 641, 89 S.Ct., at 1335. Under Art. I, § 8, cl. 4, of the Constitution, Congress' power is to 'establish an uniform Rule of Naturalization.' A congressional enactment construed so as to permit state legislatures to adopt divergent laws on the subject of citizenship requirements for federally supported welfare programs would appear to contravene this explicit constitutional requirement of uniformity.14 Since 'statutes should be construed whenever possible so as to uphold their constitutionality,' United States v. Vuitch, 402 U.S. 62, 70, 91 S.Ct. 1294, 1298, 28 L.Ed.2d 601 (1971), we conclude that § 1402(b) does not authorize the Arizona 15-year national residency requirement.
44
The judgments appealed from are affirmed.
45
It is so ordered.
46
Affirmed.
47
Mr. Justice HARLAN joins in Parts III and IV of the Court's opinion, and in the judgment of the Court.
1
See, for example, King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971).
2
The suit is brought on behalf of appellee and similarly situated Arizona resident aliens who, but for their inability to meet the Arizona residence requirement, are eligible to receive welfare benefits under state-administered federal categorical assistance programs for the permanently and totally disabled, the aged, and the blind.
3
'§ 432. Eligibility
'Except as hereinafter otherwise provided * * * needy persons of the classes defined in clauses (1) and (2) of this section shall be eligible for assistance:
'(1) Persons for whose assistance Federal financial participation is available to the Commonwealth. * * *
'(2) Other persons who are citizens of the United States, or who, during the period January 1, 1938 to December 31, 1939, filed their declaration of intention to become citizens. * * *'
4
It was stipulated that the class of persons the appellees represent approximates 65 to 70 cases annually. This figure stands in striking contrast to the 585,000 persons in the Commonwealth on categorical assistance and 85,000 on general assistance. Department of Public Welfare Report of Public Assistance, Dec. 31, 1969.
5
See Oyama v. California, 332 U.S. 633, 644—646, 68 S.Ct. 269, 274—275, 92 L.Ed. 249 (1948); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944); Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943).
6
McLaughlin v. Florida, 379 U.S. 184, 191—192, 85 S.Ct. 283, 287—289, 13 L.Ed.2d 222 (1964); Loving v. Virginia, 388 U.S. 1, 9, 87 S.Ct. 1817, 1822, 18 L.Ed.2d 1010 (1967); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954).
7
McCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248 (1877); Patsone v. Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539 (1914).
8
Hauenstein v. Lynham, 100 U.S. 483, 25 L.Ed. 628 (1880); Blythe v. Hinckley, 180 U.S. 333, 21 S.Ct. 390, 45 L.Ed. 557 (1901).
9
Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255 (1923); Porterfield v. Webb, 263 U.S. 225, 44 S.Ct. 21, 68 L.Ed. 278 (1923); Webb v. O'Brien, 263 U.S. 313, 44 S.Ct. 112, 68 L.Ed. 318 (1923); Frick v. Webb, 263 U.S. 326, 44 S.Ct. 115, 68 L.Ed. 323 (1923); but see Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (1948).
10
E.g., Passenger Cases, 7 How. 283, 492, 12 L.Ed. 702 (1849); Crandall v. Nevada, 6 Wall. 35, 48—49, 18 L.Ed. 744 (1868); Twining v. New Jersey, 211 U.S. 78, 97, 29 S.Ct. 14, 19, 53 L.Ed. 97 (1908); Edwards v. California, 314 U.S. 160, 178—181, 62 S.Ct. 164, 169—170, 86 L.Ed. 119 (Douglas, J., concurring), 183 185, 62 S.Ct. 171—172 (Jackson, J., concurring) (1941); Shapiro v. Thompson, 394 U.S., at 629, 89 S.Ct., at 1328; Oregon v. Mitchell, 400 U.S. 112, 285, 91 S.Ct. 260, 345, 27 L.Ed.2d 272 (opinion of Stewart, J.) (1970).
11
Pursuant to his rulemaking power under the Social Security Act, 42 U.S.C. § 1302, the Secretary of Health, Education, and Welfare adopted the following regulations, upon which Arizona also relies:
'3720. Requirements for State Plans
'A State plan under titles I, X, XIV, and XVI may not impose, as a condition of eligibility, any citizenship requirement which excludes any citizen of the United States.'
'3730. Interpretation of Requirement
'State plans need not contain a citizenship requirement. The purpose of IV—3720 is to ensure that where such a requirement is imposed, an otherwise eligible citizen of the United States, regardless of how (by birth or naturalization) or when citizenship was obtained, shall not be disqualified from receiving aid or assistance under titles I, X, XIV, and XVI.
'Where there is an eligibility requirement applicable to noncitizens, State plans may, as an alternative to excluding all noncitizens, provide for qualifying noncitizens, otherwise eligible, who have resided in the United States for a specific number of years.' HEW Handbook of Public Assistance Administration, pt. IV.
12
H.R.Rep.No.1300, 81st Cong., 1st Sess., 53, 153—154; S.Rep.No.1669, 81st Cong., 2nd Sess.; H.R.Conf.Rep.No.2771, 81st Cong., 2nd Sess., 118—119.
13
H.R.Rep.No.615, 74th Cong., 1st Sess., 18; S.Rep.No.628, 74th Cong., 1st Sess., 29.
14
We have no occasion to decide whether Congress, in the exercise of the immigration and naturalization power, could itself enact a statute imposing on aliens a uniform nationwide residency requirement as a condition of federally funded welfare benefits.
| 12
|
29 L.Ed.2d 519
91 S.Ct. 1893
403 U.S. 345
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.LINCOLN SAVINGS AND LOAN ASSOCIATION.
No. 544.
Argued Feb. 23, 1971.
Decided June 14, 1971.
Syllabus
Payment by a state-chartered savings and loan association of the 'additional premium' required by § 404(d) of the National Housing Act to be paid to the Federal Savings and Loan Insurance Corp. is not deductible for income tax purposes as an ordinary and necessary business expense under § 162(a) of the Internal Revenue Code.
9 Cir., 422 F.2d 90, reversed.
Matthew J. Zinn, Washington, D.C., for petitioner.
Adam Y. Bennion, Los Angeles, Cal., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents the question whether the 'additional premium' paid in 1963 by a state-chartered savings and loan association to the Federal Savings and Loan Insurance Corporation under the compulsion of § 404(d) of the National Housing Act, as amended, 12 U.S.C. s 1727(d),1 is deductible by the association, for income tax purposes, as an ordinary and necessary business expense under § 162(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 162(a).
2
The Commissioner of Internal Revenue determined a deficiency of $461,454.38 in the 1963 cash basis federal income tax of Lincoln Savings and Loan Association. Nearly all the deficiency was attributable to the disallowance of a deduction claimed for Lincoln's payment of $882,636.86 made pursuant to § 404(d). Lincoln sought redetermination in the Tax Court. Judge Raum, in a decision reviewed by the court without dissent, upheld the deficiency. 51 T.C. 82 (1968). On appeal the Ninth Circuit reversed, one judge dissenting. 422 F.2d 90 (1970).2 Because of the importance of the issue for the savings and loan industry and for the Government, we granted certiorari. 400 U.S. 901, 91 S.Ct. 139, 27 L.Ed. 137 (1970).
3
* The pertinent facts are not in dispute. Lincoln is a California savings and loan association organized in 1925 and is licensed under state law. It is subject to Division 2 of the California Financial Code, § 5000 et seq., and is also subject to the regulations of the State's Savings and Loan Commissioner. California Administrative Code, Tit. 10, c. 2.
4
In 1936 Lincoln applied for membership in the Federal Home Loan Bank of San Francisco (then of Los Angeles). That application was granted and Lincoln has remained a member of the Bank since that time. The San Francisco Bank is one of 12 regional ones established and supervised by the Federal Home Loan Bank Board under the Federal Home Loan Bank Act of 1932, 47 Stat. 725, as amended, 12 U.S.C. §§ 1421—1449. These banks provide liquidity and funds for mortgage lending by making advances to member institutions as needed to meet unusual or heavy withdrawal and credit demands. Each member must purchase capital stock in its bank in an amount equal to 1% of its outstanding 'aggregate unpaid loan principal' and maintain that percentage. 12 U.S.C. § 1426(c).
5
In June 1938 Lincoln became, and still is, an institution insured by the Federal Savings and Loan Insurance Corporation (FSLIC), a corporation created by § 402 of the National Housing Act, 48 Stat. 1256, 12 U.S.C. § 1725, and under the direction of the Federal Home Loan Bank Board. By statute FSLIC has the duty to insure the accounts of all federal savings and loan associations; it also may insure the accounts of qualified state-chartered associations such as Lincoln. Section 403(a), 12 U.S.C. § 1726(a).
6
Each institution so insured was originally required, by § 404(a) of the Act, 48 Stat. 1258, to pay FSLIC an annual insurance premium measured by the total amount of its accounts plus creditor obligations.3 The statute provided that these premiums were to continue annually until FSLIC's reserve for losses amounted to 5% of the insured accounts plus creditor obligations of all its insured institutions, and at such intervals thereafter as were necessary to maintain the reserve at that level.
7
This pattern was changed, however, effective January 1, 1962, by the Act of September 8, 1961, 75 Stat. 482. That Act, by its § 3, amended § 404(a), 12 U.S.C. § 1727(a), to its present form.4
8
Section 404(a) now requires FSLIC to establish two reserves, namely, a Primary Reserve 'which shall be the general reserve,' and a Secondary Reserve. The requirement for the annual premium of 1/12 of 1% is continued, but the level of the general reserve was lowered from 5% to 2% of the total of accounts plus creditor obligations. Sections 404(b)(1) and 404(b)(2), 12 U.S.C. §§ 1727(b) (1) and 1727(b)(2). The 1961 Act, moreover, added subsection (d) to § 404. 12 U.S.C. § 1727(d). This required that the insured institution pay FSLIC, with respect to any calendar year, an 'additional premium in the nature of a prepayment with respect to future premiums of such institution under subsection (b) * * *.' This 'additional premium' was, and still is, 2% of the net increase in the total of the institution's insured accounts, less any amount the institution is required, by 12 U.S.C. § 1426(c), as of the end of that year, to expend in purchasing stock in the Federal Home Loan Bank.5 The additional premium is to be credited to the Secondary Reserve. Section 404(a), 12 U.S.C. § 1727(a).
9
As noted, FSLIC's statutorily prescribed Primary Reserve is its general reserve. It is credited annually with the Corporation's net income; this net thus represents retained earnings. The § 404(b)(1) premium payments, that is, the 1/12 of 1% required of each insured institution, constitute a major item in FSLIC's gross income. To the extent these premium payments exceed the corporation's expenses and insurance losses for the year, they flow as part of FSLIC's net to the Primary Reserve. The insured institutions have no property interest in the funds constituting the Primary Reserve.
10
The Secondary Reserve subsists separately and possesses different characteristics. It, of course, receives the 2% 'additional premium,' to the extent such is payable, required by § 404(d) from each insured institution. FSLIC must also credit the Secondary Reserve annually with a 'return' on the Secondary Reserve's 'outstanding balances * * * at a rate equal to the average annual rate of return to the Corporation during the year * * * on the investments held by the Corporation in obligations of, or guaranteed as to principal and interest by, the United States.' Sections 404(a) and 404(e), 12 U.S.C. §§ 1727(a) and 1727(e). In contrast with the Primary Reserve, the Secondary Reserve is 'available * * * only for losses of the Corporation' and then 'only to such extent as other accounts of the Corporation which are available therefor are insufficient for such losses.' Section 404(e), 12 U.S.C. § 1727(e).
11
Each insured institution has a pro rata share in the Secondary Reserve. Section 404(e) states that this is not assignable or transferable except as FSLIC, by regulation or otherwise, provides 'in cases of merger or consolidation, transfer of bulk assets * * * and similar transactions. * * *' An insured institution may obtain a cash refund of its pro rata share if its status as an insured is terminated, § 407, 12 U.S.C. § 1730, or if a receiver or other legal custodian is appointed for purposes of liquidation, or if the Corporation determines that the institution has gone into liquidation. Section 404(f), 12 U.S.C. § 1727(f).
12
Following any December 31 on which the aggregate of the Primary Reserve and the Secondary Reserve equals or exceeds 2% of the total of all insured accounts plus creditor obligations of all the insured institutions (and the Primary Reserve alone does not equal or exceed such 2%), the additional premiums required by § 404(d) are suspended. Section 404(g); 12 U.S.C. § 1727(g).6 When this takes place, the pro rata share of each insured institution in the Secondary Reserve is used, to the extent available, to discharge the institution's obligation to pay its regular, or basic, premium required for that year under § 404(b)(1). Thereafter, if the aggregate of the two reserves decreases to less than 1 3/4%, the obligation to pay the additional premium under § 404(d) resumes and the pro rata share in the Secondary Reserve is no longer used to pay the § 404(b)(1) regular premium. Whenever, following any December 31, the Primary Reserve alone equals or exceeds such 2%, the Corporation shall pay in cash to each insured institution its pro rata share of the Secondary Reserve and shall not thereafter accept further § 404(d) prepayments.7
13
FSLIC maintains a separate account for each insured institution's share of the Secondary Reserve. It submits to the institution annually a statement disclosing that share and the interest credited to it.8 Under regulations issued by the California Savings and Loan Commissioner and by the Federal Home Loan Bank Board, Lincoln reports its interest in FSLIC's Secondary Reserve as an asset on its balance sheet and treats the interest earned on its pro rata share of the Secondary Reserve as income.9
14
LIC annually sends Lincoln an 'Insurance Premium Notice' for the basic premium due under § 404(b)(1). It also sends Lincoln annually a 'Notice of Insurance Premium Prepayments' for the amount, if any, due under § 404(d). For 1963 the former was $135,760.52 and the latter was $882,636.86. Each was paid by Lincoln.
15
On its 1963 federal income tax return Lincoln deducted both its § 404(b)(1) payment and its § 404(d) payment as ordinary and necessary business expenses under § 162(a) of the Code. The Commissioner allowed the former, but disallowed the latter.
16
The Tax Court held that the § 404(d) payment was a nondeductible capital expenditure and was not an ordinary and necessary business expense, and that the payment was deductible only when used from the Secondary Reserve to pay § 404(b)(1) premiums or to meet actual losses of FSLIC. As noted above, the Ninth Circuit reversed by a divided panel.
II.
17
To qualify as an allowable deduction under § 162(a) of the 1954 Code, an item must (1) be 'paid or incurred during the taxable year,' (2) be for 'carrying on any trade or business,' (3) be an 'expense,' (4) be a 'necessary' expense, and (5) be an 'ordinary' expense. This Court has considered these several requirements, or one or more of them, in a number of cases. See, for example, Welch v. Helvering, 290 U.S. 111, 54 S.Ct. 8, 78 L.Ed. 212 (1933); Helvering v. Winmill, 305 U.S. 79, 59 S.Ct. 45, 83 L.Ed. 52 (1938); Deputy v. du Pont, 308 U.S. 488, 60 S.Ct. 363, 84 L.Ed. 416 (1940); Interstate Transit Lines v. Commissioner of Internal Revenue, 319 U.S. 590, 63 S.Ct. 1279, 87 L.Ed. 1607 (1943); Commissioner of Internal Revenue v. Heininger, 320 U.S. 467, 64 S.Ct. 249, 88 L.Ed. 171 (1943); Commissioner of Internal Revenue v. Tellier, 383 U.S. 687, 86 S.Ct. 1118, 16 L.Ed.2d 185 (1966); Woodward v. Commissioner of Internal Revenue, 397 U.S. 572, 90 S.Ct. 1302, 25 L.Ed.2d 577 (1970); United States v. Hilton Hotels Corp., 397 U.S. 580, 90 S.Ct. 1307, 25 L.Ed.2d 585 (1970).
18
In Welch Mr. Justice Cardozo emphasized the difference between the 'ordinary' and the 'necessary' and the need for satisfying both in order to achieve the deduction. It is in that case where his well-known, but elusive, suggestion for the answer appears:
19
'The standard set up by the statute is not a rule of law; it is rather a way of life. Life in all its fullness must supply the answer to the riddle.' 290 U.S., at 115, 54 S.Ct., at 9.
20
In du Pont Mr. Justice Douglas stressed, 308 U.S., at 493 495 496, 60 S.Ct., at 367, the accepted rule of the 'popular or received import' of a statute's words, and further emphasized that 'ordinary has the connotation of normal, usual, or customary,' and that each case 'turns on its special facts.' In Tellier Mr. Justice Stewart also emphasized the double requirement of 'ordinary' and 'necessary' and said:
21
'Our decisions have consistently construed the term 'necessary' as imposing only the minimal requirement that the expense be 'appropriate and helpful' for 'the development of the (taxpayer's) business'. * * * The principal function of the term 'ordinary' in § 162(a) is to clarify the distinction, often difficult, between those expenses that are currently deductible and those that are in the nature of capital expenditures, which, if deductible at all, must be amortized over the useful life of the asset.' 383 U.S., at 689—690, 86 S.Ct., at 1120.
22
So much for generalities. Here clearly, as to its § 404(d) 'additional premium' payment in 1963, Lincoln satisfied three of the five listed requirements. The payment was made during the taxable year. It was made in carrying on a trade or business. And it was a 'necessary' payment, for it was compelled by the provisions of the National Housing Act. The Government so concedes. The focus, therefore, and our only concern here, is whether the payment was an expense and an ordinary one within the meaning of § 162(a) of the Code.
23
Lincoln's argument essentially is that its § 404(d) payment was really no different from its § 404(b)(1) payment for both were premiums for insurance of its depositors' accounts and creditor obligations; that all similarly situated insured savings and loan associations (there were 4,419 on December 31, 1963) paid the § 404(d) premium; and that the possibility of a future benefit from the expenditure does not serve to make it capital in nature as distinguished from an expense.
24
We feel that the very recital of the facts and of the structure and operation of FSLIC's reserves, in Part I of this opinion, itself provides an answer adverse to Lincoln's argument. It is not enough, in order that an expenditure qualify as an income tax deduction, that it merely be one paid by all similarly insured associations, or that it serves to fortify FSLIC's insurance purpose and operation. Further, the presence of an ensuing benefit that may have some future aspect is not controlling; many expenses concededly deductible have prospective effect beyond the taxable year.
25
What is important and controlling, we feel, is that the $404(d) payment serves to create or enhance for Lincoln what is essentially a separate and distinct additional asset and that, as an inevitable consequence, the payment is capital in nature and not an expense, let alone an ordinary expense, deductible under § 162(a) in the absence of other factors not established here. We note the following: A. The § 404(d) payment to FSLIC, when made, is subject to positive and rigid continuing controls. The payment must flow into the Secondary Reserve. That reserve is primarily available only for stated and circumscribed purposes, namely, the payment of losses and then only to the extent all other assets of FSLIC are insufficient to cover those losses. The Secondary Reserve thus has complete seniority with respect to demands upon FSLIC. It is the asset last called upon.
26
B. The insured institution has a distinct and recognized property interest in the Secondary Reserve. This is revealed by: (1) The recognition, in § 404(e), of transferability of the institution's pro rata share therein. This transferability is limited and restricted, to be sure, but it exists for approved situations of merger, consolidation, and the like. (2) The prospective refund, and in cash at that, of the institution's pro rata share upon termination of its insured status, or upon receivership or liquidation, or when the Primary Reserve alone reaches the suspension level. (3) The use of the institution's pro rata share to pay its basic premium under § 404(b)(1) when the suspension level is reached by the aggregate of the Primary and Secondary Reserves. (4) FSLIC's maintenance of a separate account for each insured institution's share in the Secondary Reserve. (5) The statutorily required annual credit from FSLIC's earnings to the institution's share of the Secondary Reserve. The share thus is an income-producing entity and the income inures to the benefit of the insured institution.
27
C. Although compulsory accounting rules do not control tax consequences, Old Colony R. Co. v. Commissioner of Internal Revenue, 284 U.S. 552, 562, 52 S.Ct. 211, 214, 76 L.Ed. 484 (1932), there is significance in the fact that all concerned here have recognized the presence and the significance of this property interest in the Secondary Reserve. FSLIC submits annual statements to its insured institutions showing payments and credits to their respective shares. Lincoln, albeit by federal and state requirements, shows that interest as an asset on its balance sheet and the credit as income. And Lincoln's parent corporation, First Lincoln Financial Corporation, although not subject to such regulation, has done the same in its financial statements.
28
D. The nature of the adjustments effected by the 1961 Act is of some import. Due primarily to the rapid growth of insured institutions in the years preceding the passage of that Act, the ratio of FSLIC's reserves to potential liability had declined. S.Rep.No.778, 87th Cong., 1st Sess., 2, 12; Hearing on H.R. 7108 and H.R. 7109 before Subcommittee No. 1 of the House Committee on Banking and Currency, 87th Cong., 1st Sess., 10. By the Act Congress reduced the requirement for Federal Home Loan Bank stock and at the same time channeled new funds to FSLIC's Secondary Reserve. The § 404(d) payment and the reduction in the FHLB stock purchase requirement were effectuated together. Certainly the FHLB stock is an asset and its acquisition is capital in nature. The complementary § 404(d) payment is directed to a fund. Each is a device designed to achieve a particular and common result, namely, the providing of protection to the insured institution and to its depositors by way, in the one case, of liquidity and availability of loan funds and, in the other, by way of segregated amounts available to offset possible losses. Each is more permanent than temporary. Each partakes more of the character of an asset than of an expense. And the two are made complementary by the very provisions of § 404(d).
29
We do not regard as contrarily persuasive, or as imposing an expense characteristic on the § 404(d) payments, six features emphasized by Lincoln or by the Court of Appeals:
30
A. The possibility that Lincoln's share of the Secondary Reserve would be consumed by FSLIC's losses and thus would never be refunded to Lincoln. The Tax Court pointed out, 51 T.C., at 97, that this hazard exists with any routine investment in a bank or an insurance company and yet its presence does not make that investment an expense rather than a capital undertaking.
31
B. The general unlikelihood, as a practical matter, of Lincoln's recovery of its pro rata share of the Secondary Reserve. It is suggested that liquidation will not take place because in this day corporate activity is assumed to be a continuing process and not limited in duration. It is further pointed out that termination of FSLIC insurance is a business impossibility for it would result in mass withdrawal of depositors' accounts and in institutional suicide. It may well be true that liquidation is unlikely and that termination of insurance would be an undesirable business decision. The same may usually be said, however, of a manufacturing corporation's investment in plant and equipment or in patents or in many other assets basic to its business and function.
32
C. The claimed identity of purpose of the § 404(b)(1) and § 404(d) payments, namely, the providing of insurance for depositors' accounts. The former, however, is only annual in phase and operation. It provides insurance for the year. When the year passes, the insurance ceases. The latter, however, provides a fund available for losses not only in the current year, but in the future. It is a fund capable under certain circumstances of finding its way back to the coffers of the insured institutions. The ultimate purpose of the two payments may have much in common, but the route and the life of each differ from those of the other.
33
D. The compulsory character of the payment imposed both by the governing statute and the economic facts of life. Lincoln concedes, however, 'Compulsion, whether legal or economic, should have no bearing upon the question whether a payment is an expense or a capital expenditure.'10
34
E. The annual accounting concept of the income tax. This factor is relevant when the year of deduction is in issue. It has less consequence in the determination of whether an item is or is not an ordinary expense. As to this, the mere maturing of liability is not enough.
35
F. The suggestion that the § 404(d) payment is not included in the list of nondeductible capital expenditures specified by § 263 of the 1954 Code. It is clear from the very language of §§ 162(a) and 263 that the two sections together are not all inclusive, and that § 263 does not provide a complete list of nondeductible expenditures. Iowa Southern Utilities Co. v. Commissioner of Internal Revenue, 333 F.2d 382, 385 (CA8 1964), cert. denied, 379 U.S. 946, 85 S.Ct. 438, 13 L.Ed.2d 543; General Bancshares Corp. v. Commissioner of Internal Revenue, 326 F.2d 712, 716 (CA8 1964), cert. denied, 379 U.S. 832, 85 S.Ct. 62, 13 L.Ed.2d 40. See Helvering v. Winmill, 305 U.S. 79, 59 S.Ct. 45, 83 L.Ed. 52 (1938); Woodward v. Commissioner of Internal Revenue, 397 U.S. 572, 90 S.Ct. 1302, 25 L.Ed.2d 577 (1970); United States v. Hilton Hotels Corp., 397 U.S. 580, 90 S.Ct. 1307, 25 L.Ed.2d 585 (1970).
III
36
Lincoln's pro rata share of the Secondary Reserve, of course, is not without its tax aspects. If its share is used to pay losses or if, when the suspension level is reached, it is devoted to the payment of Lincoln's § 404(b)(1) premium, a deduction at that time for the amount so used would appear to be in order. Indeed, the Internal Revenue Service has so ruled. Rev.Rul. 66—49, 1966—1 Cum.Bull. 36, 37. Cf. Treas.Reg. on Income Tax § 1.162—13.
37
We emphasize that just as compulsory accounting is not controlling tax wise, Old Colony R. Co. v. Commissioner of Internal Revenue, supra, so the statutory labels of 'prepayment' and 'additional premium' contained in § 404(d) are not controlling. Burnett v. Commissioner of Internal Revenue, 356 F.2d 755, 758 (CA5 1966), cert. denied, 385 U.S. 832, 87 S.Ct. 77, 17 L.Ed.2d 68. We also emphasize that the fact that a payment is imposed compulsorily upon a taxpayer does not in and of itself make that payment an ordinary and necessary expense within the meaning of § 162(a) of the 1954 Code.
38
We therefore conclude that Lincoln's § 404(d) payment made in 1963 is not deductible under § 162(a). See Wichita State Bank & Trust Co. v. Commissioner of Internal Revenue, 69 F.2d 595, 596 (CA5 1934), cert. denied, Wichita State Bank & Trust Co. v. Helvering, 293 U.S. 562, 55 S.Ct. 73, 79 L.Ed. 662.
39
The judgment of the Court of Appeals is reversed.
40
It is so ordered.
41
Judgment reversed.
42
Mr. Justice DOUGLAS, dissenting.
43
Respondent is a state-chartered savings and loan institution, whose deposits are insured by the Federal Savings and Loan Insurance Corporation (FSLIC). To obtain this coverage, respondent must pay two premiums. Under § 404(b) of the National Housing Act, it pays an annual premium of 1/12 of one percent of the total amount of its savings accounts and creditor obligations. Pursuant to § 404(d), it must also pay an additional premimum equal to two percent of any net increase in the total amount of its insured accounts.1 The § 404(b) premium is considered gross income of FSLIC, approximately 95% of which is transferred to its Primary Reserve to cover losses. These premiums must be paid by insured institutions until the Primary Reserve equals two percent of the total insured savings accounts and creditor obligations of all insured institutions. Thereafter, insured institutions need pay no premiums unless and until the Primary Reserve drops below two percent. The § 404(d) premium is not considered gross income of FSLIC but is transferred to a Secondary Reserve, to be used to cover losses only if other accounts prove insufficient, a possibility considered extremely remote. A separate accounting is kept for each insured institution, showing the § 404(d) premiums paid. Under § 404(g), at any time that the aggregate of the Primary and Secondary Reserves reaches 2% of all insured accounts and creditor obligations, no § 404(d) payments need be made, and funds from the Secondary Reserve may be used to make § 404(b) premium payments, until the aggregate falls below 1 3/4%. When the Primary Reserve reaches 2%, FSLIC is to pay each insured institution its pro rata share of the Secondary Reserve in cash. By FSLIC's projections, no § 404(d) premium payments will be required in the years 1971 to 1975 and after 1979. No § 404(b) premiums will be required after 1995, as the Primary Reserve will reach 2%. The respondent argues that there will be no payments of pro rata shares at that time, as the calculations of FSLIC show that the Secondary Fund will be exhausted prior to 1995.2
44
On its federal tax return for 1963 respondent deducted both its § 404(b) and § 404(d) premium payments as ordinary and necessary business expenses. The Commissioner of Internal Revenue allowed the deduction of § 404(b) premiums, but disallowed the latter, characterizing these payments as nondeductible capital investments in FSLIC, to be deducted only when used to pay § 404(b) premiums or when used to meet actual losses of FSLIC. The Tax Court affirmed this ruling. The Court of Appeals for the Ninth Circuit reversed the Tax Court, finding the § 404(d) premiums to be a reasonable and necessary business expense, deductible in the year paid. I agree with the Court of Appeals and dissent from the decision here.
45
There is no claim that the § 404(d) premiums are not necessary. The position of the United States is that these premiums are not 'ordinary,' but 'in the nature of capital expenditures, which, if deductible at all, must be amortized over the useful life of the asset.' Commissioner of Internal Revenue v. Tellier, 383 U.S. 687, 689—690, 86 S.Ct. 1118, 1120, 16 L.Ed.2d 185 (1966). The Commissioner relies on the principle that a cost which results in the creation of an asset having a useful life which extends substantially beyond the close of the taxable year is a capital outlay. From this he argues that the determination of whether respondent's § 404(d) premiums are capital expenditures or deductible business expenses depends on whether the payments will provide a benefit in future years.
46
Because the respondent will obtain a benefit in the future from these premiums, in the form of lower § 404(b) premiums of by a full refund of its pro rata share on termination or liquidation, he argues, the Secondary Reserve is a capital asset. It is not used for losses, and will never be used except in the event of a national catastrophe. These premiums are not recurring, and will likely be paid only in 13 of the 34 years from 1962 to 1995. Accounting principles, the Commissioner claims, demand that these payments be deducted when they are used, either to pay § 404(b) premiums or to pay losses. 'Only in this manner will the costs of FSLIC insurance be matched against the revenues generated because such insurance is maintained.' The rule professed by the United States is, of course, sound. The error is in applying it to this case. Respondent has not established an asset for future benefit. It has merely paid the premiums necessary to obtain insurance. It is true that premiums paid in 1963 may result in a reduction in premiums in later years. But labeling this the creation of an asset proves too much, for it invalidates the deduction of § 404(b) premiums as well.
47
The benefit to be obtained from the payment of § 404(d) premiums, whether they be capital expenditures or deductible expenses, is not the reduction of future premiums but insurance coverage. The Government readily admits that the present level of § 404(b) premiums is not needed to cover current foreseeable losses. Indeed, losses have never exceeded investment income. The high premium rate is for the purpose of establishing a Primary Reserve, to cover conceivably serious losses in the future. When the Primary Reserve reaches a level deemed sufficient, no premium payments will be required at all. If 'the cost of FSLIC insurance (are to) be matched against the revenues generated because such insurance is maintained,' a major portion of the § 404(b) premiums should also be capitalized, to be depreciated over some appropriate term.
48
Nor is it controlling that the Secondary Reserve is a capital account insofar as FSLIC is concerned. As the Court of Appeals stated:
49
'We think the emphasis upon the treatment of the receipt by the payee, FSLIC, is mistaken and that in determining whether an expense is an ordinary and necessary expense of doing business, the focus should be on the taxpayer and the taxpayer's business, not on what the payee does with the money paid. This is not to say that rights retained by the taxpayer are to be ignored.' 422 F.2d 90, 92.
50
A decision that § 404(d) premiums are not deductible, while § 404(b) premiums are, must rest on the only distinction between the two, the rights retained by respondent in the Secondary Reserve. These are evidenced by the keeping of separate 'accounts,' the payment of earnings to these accounts, and the possibility of a recovery of a pro rata share of the Reserve. But, as the Court of Appeals noted, respondent is a going concern, and the possibility of a return of its share on liquidation is not a proper consideration. As termination of insurance would surely lead to liquidation, this could not be considered either. The possibility that some part of the Secondary Reserve might be returned to respondent when the Primary Reserve reaches a sufficient level is, at best, remote. This contingent possibility of recovery does not render an otherwise deductible payment nondeductible. Alleghany Corp. v. Commissioner, 28 T.C. 298, 305; Electric Tachometer Corp. v. Commissioner, 37 T.C. 158, 161.
51
The returns paid on a pro rata share of the Secondary Reserve are paid out of earnings, that is, out of funds which would otherwise be transferred to the Primary Reserve. The payment does not increase the aggregate amount of the reserves. The returns paid are not available to the insured institution, and not taxable to it until paid for its benefit, according to the Internal Revenue Service. At that point, the insured institution would declare the income and deduct the amount as an expense. Therefore, absent the remote possibility that the insured institution might receive a pro rata share, it is immaterial whether returns are paid to the Secondary Reserve or only to the Primary Reserve. Also, the revenue ruling that the insured institution does not have even constructive possession of a pro rata share of the Secondary Reserve, for purposes of taxing returns on that fund, is inconsistent with the position that the same pro rata share is a capital asset of the institution.
52
On these facts, the Court of Appeals was correct in determining that the § 404(d) premiums, paid for the purpose of obtaining insurance necessary for the success of respondent's business, were deductible as an ordinary business expense.
1
Section 404(d), as amended by the Act of Sept. 8, 1961, § 6, 75 Stat. 483, read:
'(d) Each insured institution, except as otherwise provided in this section, shall annually pay to the Corporation, at such time and in such manner as the Corporation shall by regulations or otherwise prescribe, an additional premium in the nature of a prepayment with respect to future premiums of such institution under subsection (b) equal to 2 per centum of the net increase in all accounts of its insured members during the next preceding calendar year, less an amount equal to any requirement, as of the end of such calendar year, for the purchase of stock of the Federal Home Loan Bank of which such institution is a member, calculated in accordance with the provisions of subsection (c) of section 6 of the Federal Home Loan Bank Act and without regard to any net increase during such calendar year in its holdings of such stock, and such prepayments shall be credited to the Secondary Reserve. * * *'
The foregoing is the form of the statute in effect during 1963. Subsection (d) was further amended by the Act of Sept. 21, 1968, § 6(a), 82 Stat. 858, and by the Act of Dec. 24, 1969, § 416(c)(1), 83 Stat. 401, in ways of no significance here.
2
Accord, as to federal savings and loan associations: Washington Fed. S. & L. Assn. v. United States, 304 F.Supp. 1072 (SD Fla.1969), appeal pending in the United States Court of Appeals for the Fifth Circuit; First Fed. S. & L. Assn. of St. Joseph v. United States, 288 F.Supp. 477 (WD Mo.1968).
3
For more than a decade before 1963 the annual premium was at the rate of 1/12 of 1% of that total, 64 Stat. 259; prior thereto the premium had been, successively, 1/4 and 1/8 of 1%. 48 Stat. 1258; 49 Stat. 298.
4
Section 404.
'(a) The Corporation shall establish a Primary Reserve which shall be the general reserve of the Corporation and a Secondary Reserve to which shall be credited the amounts of the prepayments made by insured institutions pursuant to subsection (d) of this section and the credits made pursuant to the first sentence of subsection (e).'
5
The 1961 Act, by its § 2, repealed § 6(l) of the Federal Home Loan Bank Act, 12 U.S.C. § 1426(l), which had the effect of reducing from 2% to 1% the stock an insured institution is required to hold in relation to its outstanding unpaid loan principal. (The 2% requirement had been provided by the Act of June 27, 1950, § 2, 64 Stat. 257.) It was contemplated that for most institutions this reduction would approximately offset the additional payment to the Secondary Reserve required under § 404(d). H.R.Rep.No.823, 87th Cong., 1st Sess., 2 (1961); S.Rep.No.778, 87th Cong., 1st Sess., 1—2 (1961); U.S.Code Cong., & Adm.News, p. 2610.
6
The Act of Dec. 23, 1969, Pub.L. 91—151, § 6(a), 83 Stat. 375, changed, effective after 1969, the applicable reserve and premium measures to the designated percentages of only 'accounts' rather than accounts plus 'creditor obligations.'
7
In 1961 FSLIC projected that the aggregate of the Primary and Secondary Reserves would equal or exceed 2% of all accounts and creditor obligations of all insured institutions by 1970; that no payments to the Secondary Reserve would be required for 1971 1975 and 1980—1995; that the Primary Reserve alone would reach the 2% level by 1995; and that the Secondary Reserve would be consumed by 1995 in discharging the insured institutions' premium obligations under § 404(b)(1).
As a consequence of the 1969 amendments effected by Pub.L. 91 151, eliminating creditor obligations in measuring the adequacy of the reserves, the aggregate of FSLIC's Primary and Secondary Reserves reached the 2% suspension level in 1969 rather than 1970. Beginning in 1970 the Secondary Reserve is being used to fulfill the institutions' premium obligations under § 404(b)(1).
8
As of December 31, 1963, Lincoln's share amounted to $1,034,689.86. As of December 31, 1967, it was $4,922,155.46. This had been accumulated since the § 404(d) and (e) payments and credits began as required by the 1961 Act.
9
The Internal Revenue Service has ruled that, for a cash basis taxpayer, this interest is not taxable in the year earned, but only when it is utilized from the Secondary Reserve to pay the institution's § 404(b)(1) premium or when it is otherwise made available to the institution. Rev.Prel. 66—49, 1966—1 Cum.Bull. 36, 38.
10
Brief in Opposition 17.
1
This amount may be reduced by an amount equal to any requirement for the purchase of stock in the Federal Home Loan Bank of which the insured is a member.
2
The Solicitor General argues that it is possible that some insured institutions might receive refunds from the Secondary Reserve, if their growth fits a certain pattern. This however only raises the possibility of such a return, without showing that such a possibility is more than remote.
| 1112
|
403 U.S. 384
91 S.Ct. 1801
29 L.Ed.2d 549
Macio Bernard SIMPSONv.State of FLORIDA.
No. 1267.
June 14, 1971.
PER CURIAM.
1
On November 9, 1966, two armed men entered a store in Jacksonville, Florida, and robbed the manager and a customer. During 1967 petitioner was tried and convicted in the state courts, after a jury trial, of the armed robbery of the manager, but the conviction was reversed on appeal because the trial judge neglected to instruct the jury on the lesser-included offense of larceny. Griffin v. State, 202 So.2d 602 (Fla.Dist.Ct.App.1967). In 1968 petitioner was retried on the same charge and acquitted. Subsequently, he was charged with robbing the customer. His motion to quash the information on double jeopardy grounds was overruled and a jury found petitioner guilty of armed robbery. Each of the three jury verdicts here involved was a general one. The trial court imposed a 30-year sentence and petitioner appealed to the District Court of Appeal.
2
Prior to the adjudication of petitioner's apppeal, this Court rendered its decision in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469. We there held that the principle of collateral estoppel, which 'bars relitigation between the same parties of issues actually determined at a previous trial,' id., at 442, 90 S.Ct. 1193, is 'embodied in the Fifth Amendment guarantee against double jeopardy,' id., at 445, 90 S.Ct., at 1195, and is fully applicable to the States, by force of the Fourteenth Amendment, in light of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707.
3
The factual situation presented in Ashe remarkably parallels that of the instant case. There three or four men had interrupted a poker game and robbed all six participants. Petitioner had been acquitted by a general jury verdict on a charge of robbing one of the poker players, but was later tried and convicted of robbing a second. He contended that the prohibition against double jeopardy operated as a bar to the second prosecution because the only issue in each trial was the identity of the robbers. We held in Ashe that:
4
'Where a previous judgment of acquittal was based upon a general verdict * * * (the rule of collateral estoppel) requires a court to 'examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." Ashe, supra, at 444, 90 S.Ct., at 1194.
5
Here, as in Ashe, petitioner contends that his identity as one of the robbers was the sole disputed issue at each of his trials. The District Court of Appeal, however, declined to examine the record of the second trial, but simply held instead, as a matter of law, that while petitioner's acquittal at the second trial entitled him to invoke collateral estoppel, his conviction at the first trial (where the sufficiency of the evidence was not disputed on appeal) gave rise to a 'double collateral estoppel in that by application of this doctrine, appellant is estopped from contending without further proof that the State failed to prove the issue of his identity as one of the robbers on * * * the second trial inasmuch as on the first trial a jury had found above and beyond a reasonable doubt that appellant was a participant in the robbery.' Simpson v. State, 237 So.2d 341, 342 (Fla.App.1970).
6
The Supreme Court of Florida, by a divided vote, declined review, 240 So.2d 645, and petitioner filed a timely petition for a writ of certiorari with this Court. We grant the writ and we vacate the judgment.
7
The ground upon which the state court resolved petitioner's contention is plainly not tenable. Indeed, in Ashe itself, we specifically noted that 'mutuality' was not an ingredient of the collateral estoppel rule imposed by the Fifth and Fourteenth Amendments upon the States. Ashe, supra, at 443, 90 S.Ct., at 1194. It is clear that Florida could not have retried petitioner a third time on the charge of robbing the store manager simply because it had previously secured a jury verdict of guilty as well as one of acquittal. And, had the second trial never occurred, the prosecutor could not, while trying the case under review, have laid the first jury verdict before the trial judge and demanded an instruction to the jury that, as a matter of law, petitioner was one of the armed robbers in the store that night. It must, therefore, be equally clear that unless the jury verdict in the second trial 'could have (been) grounded * * * upon an issue other than that which the defendant seeks to foreclose from consideration' the constitutional guarantee against being twice put in jeopardy for the same offense vitiates petitioner's conviction.
8
The judgment of the Florida District Court of Appeal is vacated and the case is remanded to that court for further proceedings not inconsistent with this opinion.
9
It is so ordered.
10
Vacated and remanded.
11
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS joins.
12
The robbery of the manager and the robbery of the customer grew out of one criminal episode. I agree with the Court's disposition but, for the reasons stated in my concurring opinion in Ashe v. Swenson, 397 U.S. 436, 448, 90 S.Ct. 1189, 1196, (1970), I would also hold that on the facts of this case the Double Jeopardy Clause prohibited Florida from prosecuting petitioner for the robbery of the customer.
13
THE CHIEF JUSTICE and Mr. Justice BLACKMUN dissent for the reasons given in the dissenting opinion of The Chief Justice in Ashe v. Swenson, 397 U.S. 436, 460, 90 S.Ct. 1189, 1202.
14
Mr. Justice MARSHALL took no part in the decision of this case.
| 01
|
403 U.S. 333
91 S.Ct. 1841
29 L.Ed.2d 510
James D. HODGSON, Secretary of Labor, Petitioner,v.
LOCAL UNION 6799, UNITED STEELWORKERS OF AMERICA, AFL-CIO, et al.
No. 655.
Argued March 23, 1971.
Decided June 14, 1971.
Syllabus
Failure of labor union member's election complaint to include an objection to meeting-attendance rule during his pursuit of internal union remedies when the member was aware of the existence of the rule bars the Secretary of Labor from later challenging that rule in an action under § 402 of the Labor-Management Reporting and Disclosure Act, which provides that once a member challenging an election has exhausted his internal union remedies and filed a complaint with the Secretary of Labor, the Secretary 'shall investigate such complaint and, if he finds probable cause to believe that a violation * * * has occurred and has not been remedied, he shall * * * bring a civil action against the labor organization.' Pp. 336—341.
426 F.2d 969, affirmed.
Lawrence G. Wellace, Washington, D.C., for petitioner.
Michael H. Gottesman, Washington, D.C., for respondents.
Opinion of the Court by Mr. Justice MARSHALL, announced by Mr. Justice STEWART.
1
Petitioner, the Secretary of Labor, instituted this action under § 402(b) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 534, 29 U.S.C. § 482(b), against Local 6799, United Steelworkers of America, to set aside a general election of officers conducted by the union.1 The lawsuit arose after Nicholas Hantzis, an unsuccessful candidate for president of the local, protested the election to both the local and international union organizations. His protest concerned several matters including the use of union facilities to prepare campaign materials for the incumbent president who was re-elected.2
2
After failing to obtain relief through the internal procedures of either union organization, Hantzis filed a complaint with the Secretary of Labor pursuant to § 402(a) of the Act, 29 U.S.C. § 482(a). The complaint repeated the charge that union facilities had been used to promote the candidacy of the incumbent president and raised, for the first time, an additional objection concerning a meeting-attendance requirement imposed as a condition of candidacy for union office.3 At no time during his internal union protests did Hantzis challenge the attendance requirement.
3
Following an investigation of the complaint, the Secretary concluded that union facilities had been used improperly to aid the re-election of the incumbent president in violation of § 401(g) of the Act, 29 U.S.C. § 481(g). The Secretary also concluded that § 401(e) had been violated because the meeting-attendance requirement had not been uniformly administered and because the requirement itself was not a reasonable qualification on the right of union members to hold office. Respondents were advised of these conclusions and were asked to take voluntary remedial action. When they failed to comply with the request, the Secretary brought this proceeding in the District Court for the Central District of California.
4
The District Court held that § 401(g) had been violated by the use of union facilities for the benefit of the incumbent president's campaign and ordered a new election for the office of president.4 The District Court also held, however, that the meeting-attendance rule was reasonable and that Local 6799 had not violated § 401(e) by imposing the rule as a qualification on candidacies fur union office.
5
On appeal, the Court of Appeals for the Ninth Circuit affirmed without reaching the question whetehr the attendance requirement was reasonable. In the court's view, Hantzis' failure to challenge the requirement during his pursuit of internal union remedies precluded the Secretary from later raising the issue. The court reasoned that since the Act requires that union members protesting the conduct of elections exhaust their internal union remedies before complaining to the Secretary, Congress intended to empower the Secretary to assert only 'those violations that are fairly apparent from a member's protest to the union * * *.' 426 F.2d 969, 971.
6
Because the case presents an important issue concerning the scope of the Secretary's authority under the Act, we granted certiorari, 400 U.S. 940, 91 S.Ct. 239, 27 L.Ed.2d 243. We conclude that Hantzis' failure to object to the attendance rule during pursuit of his internal union remedies bars the Secretary from later challenging the rule in a § 402(b) action. We therefore affirm the decision of the Court of Appeals.
7
Section 402(b) provides that once a member challenging an election has exhausted his internal union remedies and filed a complaint with the Secretary of Labor, the Secretary 'shall investigate such complaint and, if he finds probable cause to believe that a violation of this title has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization * * *.'5 At the outset, petitioner contends that the language of the section empowers the Secretary to investigate and litigate any and all violations that may have affected the outcome of an election once a union member has exhausted his internal union remedies concerning any violation that occurred during that election. Emphasis is placed on the fact that the Secretary is authorized to act if his investigation uncovers 'a violation'—this, it is said, means that the Secretary is not limited to seeking redress only in respect of the claims earlier presented by the union member to his union. However, the statutory language is not so devoid of ambiguity that it alone can bear the weight of the Secretary's expansive view of his authority. While the words 'a violation' might mean 'any violation whatever revealed by the investigation,' the words are susceptible of other readings. In particular, they can fairly be read to mean 'any of the violations raised by the union member during his internal union election protest.' In Wirtz v. Local Union No. 125 Laborers' International Union, 389 U.S. 477, 88 S.Ct. 639, 19 L.Ed.2d 716 (1968), this Court noted that the range of the Secretary's authority under § 402(b) must be determined 'by inference since there is lacking an explicit provision regarding the permissible scope of the Secretary's complaint,' 389 U.S., at 481, 88 S.Ct., at 641. We must, therefore, examine the legislative history and statutory policies behind § 402 and the rest of the Act to decide the issue presented by this case.
8
Examination of the relevant legislative materials reveals a clear congressional concern for the need to remedy abuses in union elections without departing needlessly from the longstanding congressional policy against unnecessary governmental interference with internal union affairs, Wirtz v. Local 153, Glass Bottle Blowers Assn., 389 U.S. 463, 470—471, 88 S.Ct. 643, 647—648, 19 L.Ed.2d 705 (1968). The introduction to the Senate report accompanying the Act summarizes the general objectives of Congress:
9
'A strong independent labor movement is a vital part of American institutions. The shocking abuses revealed by recent investigations have been confined to a few unions. The overwhelming majority are honestly and democratically run. In providing remedies for existing evils the Senate should be careful neither to undermine self-government within the labor movement nor to weaken unions in their role as the bargaining representatives of employees.' S.Rep. No. 187, 86th Cong., 1st Sess., 5 (1959); U.S.Code Cong. & Admin. News, p. 2322.
10
The requirement of § 402(a) that a union member first seek redress of alleged election violations within the union before enlisting the aid of the Secretary, was similarly designed to harmonize the need to eliminate election abuses with a desire to avoid unnecessary governmental intervention. The same Senate Report, in reference to Title IV of the Act and to the exhaustion requirement, states:
11
'In filing a complaint the member must show that he has pursued any remedies available to him within the union and any parent body in a timely manner. This rule preserves a maximum amount of independence and self-government by giving every international union the opportunity to correct improper local elections.' Id., at 21.
12
Plainly Congress intended to foster a situation in which the unions themselves could remedy as many election violations as possible without the Government's ever becoming involved. Achieving this objective would not only preserve and strengthen unions as self-regulating institutions, but also avoid unnecessary expenditure of the limited resources of the Secretary of Labor.
13
Petitioner contends that the congressional concerns underpinning the exhaustion requirement were in fact adequately served in this case, because the election in question was actually protested by a union member within the union and because the union was later given a chance to remedy specific violations before being taken to court by the Secretary. In this view, it is irrelevant that Hantzis himself did not focus his election challenge on the attendance requirement when seeking internal union remedies. In sum, the Secretary urges that § 402(b) empowers him to act so long as a union member objects in any way to an election and so long as the union is given the opportunity to remedy voluntarily any violations that the Secretary determines may have affected the outcome of that election, regardless whether the member objected to the violations during his protest to the union.
14
However, under petitioner's limited view of congressional objectives, the exhaustion requirement of § 402(a) is left with virtually no purpose or part to play in the statutory scheme. 'Exhaustion' would be accomplished given any sort of protest within the union, no matter how remote the complaint made there from the alleged violation later litigated. The obvious purpose of an exhaustion requirement is not met when the union, during 'exhaustion,' is given no notice of the defects to be cured. Indeed, the primary objective of the exhaustion requirement is to preserve the vitality of internal union mechanisms for resolving election disputes—mechanisms to decide complaints brought by members of the union themselves. To accept petitioner's contention that a union member, who is aware of the facts underlying an alleged violation, need not first protest this violation to his union before complaining to the Secretary would be needlessly to weaken union self-government. Plainly petitioner's approach slights the interest in protecting union self-regulation and is out of harmony with the congressional purpose reflected in § 402(a).
15
Of course, any interpretation of the exhaustion requirement must reflect the needs of rank and file union members—those people the requirement is designed ultimately to serve. We are not unmindful that union members may use broad or imprecise language in framing their internal union protests and that members will often lack the necessary information to be aware of the existence or scope of many election violations. Union democracy is far too important to permit these deficiencies to foreclose relief from election violations; and in determining whether the exhaustion requirement of § 402(a) has been satisfied, courts should impose a heavy burden on the union to show that it could not in any way discern that a member was complaining of the violation in question.6 But when a union member is aware of the facts supporting an alleged election violation, the member must, in some discernible fashion, indicate to his union his dissatisfaction with those facts if he is to meet the exhaustion requirement.
16
In this case, it is clear that the protesting member knew of the existence of the meeting-attendance provision and that his election protests to the local and international unions concerned matters wholly unrelated to the rule. We therefore hold that internal union remedies were not properly exhausted and that the Secretary was barred from litigating the claim. Given this holding, we do not reach the question whether the meeting-attendance rule itself is reasonable.
17
The judgment is affirmed.
18
Affirmed.
19
Mr. Justice BRENNAN, dissenting.
20
I dissent. The Court acknowledges that 29 U.S.C. § 482(b), in permitting the Secretary to bring a civil action against the union if his investigation discloses 'a violation' of § 481, might well mean 'any violation whatever revealed by the investigation.' Ante, at 338. Nonetheless, it concludes that 'a violation' is limited to 'any of the violations raised by the union member during his internal union election protest,' ibid., because the broader interpretation would disregard the congressional purpose in imposing the exhaustion requirement. It is in giving controlling significance to the exhaustion requirement rather than to the clear and primary policy judgment enacted by Congress that the Court, in my view falls into error.
21
Wirtz v. Local 153, Glass Bottle Blowers Assn., 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968), and Wirtz v. Local Union No. 125, Laborers' International Union, 389 U.S. 477, 88 S.Ct. 639, 19 L.Ed.2d 716 (1968), comprehensively analyzed the policy Congress meant to further in enacting the Secretary's enforcement powers under 29 U.S.C. § 482. We said that 'Title IV's special function in furthering the over-all goals of the LMRDA is to insure 'free and democratic' elections,' 389 U.S., at 470, 88 S.Ct., at 647, an interest 'vital' not alone to union members but also to the general public. 389 U.S., at 475, 483, 88 S.Ct., at 650, 642. While we recognized that Congress desired to further this basic policy with minimal interference with a union's management of its own affairs, we made clear that where governmental intrusion was necessary to realize the vital public policy favoring free and democratic elections, 'it would be anomalous to limit the reach of the Secretary's cause of action by the specifics of the union member's complaint.' 389 U.S., at 483, 88 S.Ct., at 642. We accordingly held that 'it is incorrect to read (the exhaustion provision) * * * as somehow conditioning (the Secretary's) right to relief once that intervention has been properly invoked.' 389 U.S., at 473, 88 S.Ct., at 649.
22
That holding fits precisely the situation before us. Intervention was properly invoked when the dissident union member pursued his complaint through the union's internal procedures. When the Secretary's subsequent investigation uncovered another Title IV violation, surely it was 'a violation' that Congress meant should also be corrected. Indeed, 29 U.S.C. § 482(b) provides that if the Secretary's investigation leads him to conclude that there is 'probable cause to believe that a violation of this subchapter has occurred' the Secretary should seek in a civil action an order to set the election aside and 'to direct the conduct of an election * * * in accordance with the provisions of this subchapter.' (Emphasis added.) The new election must, under § 482(c), be conducted 'so far as lawful and practicable in conformity with the constitution and bylaws of the labor organization.' (Emphasis added.) These provisions make inescapable the conclusion that Congress authorized the Secretary to ground an action for a new election not only in violations processed by the union member but also on other violations uncovered in his investigation. The Court's contrary construction ignores 'the fact that Congress, although committed to minimal intervention, was obviously equally committed to making that intervention, once warranted, effective in carrying out the basic aim of Title IV.' 389 U.S., at 473, 88 S.Ct., at 649.
23
Mr. Justice WHITE, dissenting.
24
If, as in this case, a new election is ordered because a candidate used union facilities when he should not have, the Act directs a new election 'under supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization.' 29 U.S.C. § 482(c). I take it, then, that the Secretary is under no obligation, indeed forbidden, to follow a provision of the bylaws or constitution that is unlawful. If, in proceedings that order a new election, the Secretary discovers in the bylaws or constitution a provision regulating elections that he deems unlawful—such as the meeting-attendance rule—but the union insists that it is entirely lawful, does the Secretary simply ignore the provision in holding the election, may he or the union secure a judicial ruling on it, or is court action foreclosed and the Secretary required to follow the provision simply because a member in challenging the election failed to attack the meeting-attendance rule, probably because it did not affect him?
25
I agree that if Hantzis' claim of using union facilities had been rejected, a new election could not have been ordered even though the Secretary turned up the meeting-attendance rule in his investigation and discovered that the ballot boxes had also been stuffed. But if the Secretary finds an invalid bylaw that purports to govern a new election that has been validly ordered on a claim that has been exhausted, as in this case, the Secretary appears to have expressed grounds in the Act, independent of the complaint-exhaustion requirements, to insist that the new election be conducted in accordance with the law and to insist that a court adjudicated the matter if the union stands by its bylaw provision.
1
The United Steelworkers of America, an international union under which Local 6799 is chartered, intervened as a party defendant.
2
Hantzis' written protest consisted of a letter to the International Union which purported to describe the election's operation. Since the letter did not make specific allegations, it is difficult precisely to define Hantzis' objections. However, in addition to his general charge that union machinery had been used to aid incumbents, Hantzis also protested several procedural matters including the methods used to nominate and swear in officers. The Secretary of Labor subsequently concluded that none of these procedural matters constituted a violation of the Act.
3
The attendance rule, which is contained in the constitution of the International Union, provides that a union member, in order to the eligible for election as a local union officer or grievance committeeman, must have attended at least one-half of the regular meetings of his local union for 36 months previous to the election unless union activities or working hours prevented his attendance. It is unclear from Hantzis' complaint whether he objected to the attendance rule itself or to the way in which the rule was administered during the election. Hantzis himself qualified under the rule.
4
This facet of the District Court's decision is not challenged here.
5
'Sec. 402. (a) A member of a labor organization—
'(1) who has exhausted the remedies available under the constitution and bylaws of such organization and of any parent body, or
'(2) who has invoked such available remedies without obtaining a final decision within three calendar months after their invocation,
'may file a complaint with the Secretary within one calendar month thereafter alleging the violation of any provision of section 401 (including violation of the constitution and bylaws of the labor organization pertaining to the election and removal of officers). The challenged election shall be presumed valid pending a final decision thereon (as hereinafter provided) and in the interim the affairs of the organization shall be conducted by the officers elected or in such other manner as its constitution and bylaws may provide.
'(b) The Secretary shall investigate such complaint and, if he
finds probable cause to believe that a violation of this title has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization as an entity in the district court of the United States in which such labor organization maintains its principal office to set aside the invalid election, if any, and to direct the conduct of an election or hearing and vote upon the removal of officers under the supervision of the Secretary and in accordance with the provisions of this title and such rules and regulations as the Secretary may prescribe. The court shall have power to take such action as it deems proper to preserve the assets of the labor organization.
'(c) If, upon a preponderance of the evidence after a trial upon the merits, the court finds—
'(1) that an election has not been held within the time prescribed by section 401, or
'(2) that the violation of section 401 may have affected the outcome of an election,
'the court shall declare the election, if any, to be void and direct the conduct of a new election under supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization. The Secretary shall promptly certify to the court the names of the persons elected, and the court shall thereupon enter a decree declaring such persons to be the officers of the labor organization. If the proceeding is for the removal of officers pursuant to subsection (h) of section 401, the Secretary shall certify the results of the vote and the court shall enter a decree declaring whether such persons have been removed as officers of the labor organization.
'(d) An order directing an election, dismissing a complaint, or designating elected officers of a labor organization shall be appealable in the same manner as the final judgment in a civil action, but an order directing an election shall not be stayed pending appeal.'
6
For much the same reasons, members should not be held to procedural niceties while seeking redress within their union, and exhaustion is not required when internal union remedies are unnecessarily complex or otherwise operate to confuse or inhibit union protestors.
| 67
|
403 U.S. 217
91 S.Ct. 1940
29 L.Ed.2d 438
Hazel PALMER et al., Petitioners,v.Allen C. THOMPSON, Mayor, City of Jackson, et al.
No. 107.
Argued Dec. 14, 1970.
Decided June 14, 1971.
Paul A. Rosen, Detroit, Mich., and William M. Kunstler, New York City, for petitioners.
William F. Goodman, Jr., Jackson, Miss., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
In 1962 the city of Jackson, Mississippi, was maintaining five public parks along with swimming pools, golf links, and other facilities for use by the public on a racially segregated basis. Four of the swimming pools were used by whites only and one by Negroes only. Plaintiffs brought an action in the United States District Court seeking a declaratory judgment that this state-enforced segregation of the races was a violation of the Thirteenth and Fourteenth Amendments, and asking an injunction to forbid such practices. After hearings the District Court entered a judgment declaring that enforced segregation denied equal protection of the laws but it declined to issue an injunction.1 The Court of Appeals affirmed, and we denied certiorari.2 The city proceeded to desegregate its public parks, auditoriums, golf courses, and the city zoo. However, the city council decided not to try to operate the public swimming pools on a desegregated basis. Acting in its legislative capacity, the council surrendered its lease on one pool and closed four which the city owned. A number of Negro citizens of Jackson then filed this suit to force the city to reopen the pools and operate them on a desegregated basis. The District Court found that the closing was justified to preserve peace and order and because the pools could not be operated economically on an integrated basis.3 It held the city's action did not deny black citizens equal protection of the laws. The Court of Appeals sitting en banc affirmed, six out of 13 judges dissenting.4 That court rejected the contention that since the pools had been closed either in whole or in part to avoid desegregation the city council's action was a denial of equal protection of the laws. We granted certiorari to decide that question. We affirm.
2
* Petitioners rely chiefly on the first section of the Fourteenth Amendment which forbids any State to 'deny to any person within its jurisdiction the equal protection of the laws.' There can be no doubt that a major purpose of this amendment was to safeguard Negroes against discriminatory state laws—state laws that fail to give Negroes protection equal to that afforded white people. History shows that the achievement of equality for Negroes was the urgent purpose not only for passage of the Fourteenth Amendment but for the Thirteenth and Fifteenth Amendments as well. See, e.g., Slaughter-House Cases, 16 Wall. 36, 71—72, 21 L.Ed. 394 (1873). Thus the Equal Protection Clause was principally designed to protect Negroes against discriminatory action by the States. Here there has unquestionably been 'state action' because the official local government legislature, the city council, has closed the public swimming pools of Jackson. The question, however, is whether this closing of the pools is state action that denies 'the equal protection of the laws' to Negroes. It should be noted first that neither the Fourteenth Amendment nor any Act of Congress purports to impose an affirmative duty on a State to begin to operate or to continue to operate swimming pools. Furthermore, this is not a case where whites are permitted to use public facilities while blacks are denied access. It is not a case where a city is maintaining different sets of facilities for blacks and whites and forcing the races to remain separate in recreational or educational activities.5 See, e.g., Watson v. City of Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963); Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).
3
Unless, therefore, as petitioners urge, certain past cases require us to hold that closing the pools to all denied equal protection to Negroes, we must agree with the courts below and affirm.
II
4
Although petitioners cite a number of our previous cases, the only two which even plausibly support their argument are Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964), and Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). For the reasons that follow, however, neither case leads us to reverse the judgment here.6
5
A. In Griffin the public schools of Prince Edward County, Virginia, were closed under authority of state and county law, and so-called 'private schools' were set up in their place to avoid a court desegregation order. At the same time, public schools in other counties in Virginia remained open. In Prince Edward County the 'private schools' were open to whites only and these schools were in fact run by a practical partnership between State and county, designed to preserve segregated education. We pointed out in Griffin the many facets of state involvement in the running of the 'private schools.' The State General Assembly had made available grants of $150 per child to make the program possible. This was supplemented by a county grant program of $100 per child and county property tax credits for citizens contributing to the 'private schools.' Under those circumstances we held that the closing of public schools in just one county while the State helped finance 'private schools' was a scheme to perpetuate segregation in education which constituted a denial of equal protection of the laws. Thus the Griffin case simply treated the school program for what it was—an operation of Prince Edward County schools under a thinly disguished 'private' school system actually planned and carried out by the State and the county to maintain segregated education with public funds. That case can give no comfort to petitioners here. This record supports no intimation that Jackson has not completely and finally ceased running swimming pools for all time. Unlike Prince Edward County, Jackson has not pretended to close public pools only to run them under a 'private' label. It is true that the Leavell Woods pool, previously leased by the city from the YMCA, is now run by that organization and appears to be open only to whites. And according to oral argument, another pool owned by the city before 1963 is now owned and operated by Jackson State College, a predominantly black institution, for college students and their guests.7 But unlike the 'private schools' in Prince Edward County there is nothing here to show the city is directly or indirectly involved in the funding or operation of either pool.8 If the time ever comes when Jackson attempts to run segregated public pools either directly or indirectly, or participates in a subterfuge whereby pools are nominally run by 'private parties' but actually by the city, relief will be available in the federal courts.
6
B. Petitioners also claim that Jackson's closing of the public pools authorizes or encourages private pool owners to discriminate on account of race and that such 'encouragement' is prohibited by Reitman v. Mulkey, supra.
7
In Reitman, California had repealed two laws relating to racial discrimination in the sale of housing by passing a constitutional amendment establishing the right of private persons to discriminate on racial grounds in real estate transactions. This Court there accepted what it designated as the holding of the Supreme Court of California, namely that the constitutional amendment was an official authorization of racial discrimination which significantly involved the State in the discriminatory acts of private parties. 387 U.S., at 376—378, 380—381, 87 S.Ct., at 1631—1634.
8
In the first place there are no findings here about any state 'encouragement' of discrimination, and it is not clear that any such theory was ever considered by the District Court. The implication of petitioners' argument appears to be that the fact the city turned over to the YMCA a pool it had previously leased is sufficient to show automatically that the city has conspired with the YMCA to deprive Negroes of the opportunity to swim in integrated pools. Possibly in a case where the city and the YMCA were both parties, a court could find that the city engaged in a subterfuge, and that liability could be fastened on it as an active participant in a conspiracy with the YMCA. We need not speculate upon such a possibility, for there is no such finding here, and it does not appear from this record that there was evidence to support such a finding. Reitman v. Mulkey was based on a theory that the evidence was sufficient to show the State was abetting a refusal to rent apartments on racial grounds. On this record, Reitman offers no more support to petitioners than does Griffin.
III
9
Petitioners have also argued that respondents' action violates the Equal Protection Clause because the decision to close the pools was motivated by a desire to avoid integration of the races. But no case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it. The pitfalls of such analysis were set forth clearly in the landmark opinion of Mr. Chief Justice Marshall in Fletcher v. Peck, 6 Cranch 87, 130, 3 L.Ed. 162 (1810), where the Court declined to set aside the Georgia Legislature's sale of lands on the theory that its members were corruptly motivated in passing the bill.
10
A similar contention that illicit motivation should lead to a finding of unconstitutionality was advanced in United States v. O'Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672 (1968), where this Court rejected the argument that a defendant could not be punished for burning his draft card because Congress had allegedly passed the statute to stifle dissent. That opinion explained well the hazards of declaring a law unconstitutional because of the motivations of its sponsors. First, it is extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment. Id., at 383, 384, 88 S.Ct., at 1682, 1683. Here, for example, petitioners have argued that the Jackson pools were closed because of ideological opposition to racial integration in swimming pools. Some evidence in the record appears to support this argument. On the other hand the courts below found that the pools were closed because the city council felt they could not be operated safely and economically on an integrated basis. There is substantial evidence in the record to support this conclusion. It is difficult or impossible for any court to determine the 'sole' or 'dominant' motivation behind the choices of a group of legislators. Furthermore, there is an element of futility in a judicial attempt to invalidate a law because of the bad motives of its supporters. If the law is struck down for this reason, rather than because of its facial content or effect, it would presumably be valid as soon as the legislature or relevant governing body repassed it for different reasons.
11
It is true there is language in some of our cases interpreting the Fourteenth and Fifteenth Amendments which may suggest that the motive or purpose behind a law is relevant to its constitutionality. Griffin v. County School Board of Prince Edward County, supra; Gomillion v. Lightfoot, 364 U.S. 339, 347, 81 S.Ct. 125, 130, 5 L.Ed.2d 110 (1960). But the focus in those cases was on the actual effect of the enactments, not upon the motivation which led the States to behave as they did. In Griffin, as discussed supra, the State was in fact perpetuating a segregated public school system by financing segregated 'private' academies. And in Gomillion the Alabama Legislature's gerrymander of the boundaries of Tuskegee excluded virtually all Negroes from voting in town elections. Here the record indicates only that Jackson once ran segregated public swimming pools and that no public pools are now maintained by the city. Moreover, there is no evidence in this record to show that the city is now covertly aiding the maintenance and operation of pools which are private in name only. It shows no state action affecting blacks differently from whites.
12
Petitioners have argued strenuously that a city's possible motivations to ensure safety and save money cannot validate an otherwise impermissible state action. This proposition is, of course, true. Citizens may not be compelled to forgo their constitutional rights because officials fear public hostility or desire to save money. Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917); Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Watson v. City of Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963). But the issue here is whether black citizens in Jackson are being denied their constitutional rights when the city has closed the public pools to black and white alike. Nothing in the history or the language of the Fourteenth Amendment nor in any of our prior cases persuades us that the closing of the Jackson swimming pools to all its citizens constitutes a denial of 'the equal protection of the laws.'
IV
13
Finally, some faint and unpersuasive argument has been made by petitioners that the closing of the pools violated the Thirteenth Amendment which freed the Negroes from slavery. The argument runs this way: The first Mr. Justice Harlan's dissent in Plessy v. Ferguson, 163 U.S. 537, 552, 16 S.Ct. 1138, 1143, 41 L.Ed. 256 (1896), argued strongly that the purpose of the Thirteenth Amendment was not only to outlaw slavery but also all of its 'badges and incidents.' This broad reading of the amendment was affirmed in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). The denial of the right of Negroes to swim in pools with white people is said to be a 'badge or incident' of slavery. Consequently, the argument seems to run, this Court should declare that the city's closing of the pools to keep the two races from swimming together violates the Thirteenth Amendment. To reach that result from the Thirteenth Amendment would severely stretch its short simple words and do violence to its history. Establishing this Court's authority under the Thirteenth Amendment to declare new laws to govern the thousands of towns and cities of the country would grant it a law-making power far beyond the imagination of the amendment's authors. Finally, although the Thirteenth Amendment is a skimpy collection of words to allow this Court to legislate new laws to control the operation of swimming pools throughout the length and breadth of this Nation, the Amendment does contain other words that we held in Jones v. Alfred H. Mayer Co. could empower Congress to outlaw 'badges of slavery.' The last sentence of the Amendment reads:
14
'Congress shall have power to enforce this article by appropriate legislation.'
15
But Congress has passed no law under this power to regulate a city's opening or closing of swimming pools or other recreational facilities.
16
It has not been so many years since it was first deemed proper and lawful for cities to tax their citizens to build and operate swimming pools for the public. Probably few persons, prior to this case, would have imagined that cities could be forced by five lifetime judges to construct or refurbish swimming pools which they choose not to operate for any reason, sound or unsound. Should citizens of Jackson or any other city be able to establish in court that public, tax-supported swimming pools are being denied to one group because of color and supplied to another, they will be entitled to relief. But that is not the case here.
17
The judgment is affirmed.
18
Affirmed.
19
Mr. Chief Justice BURGER, concurring.
20
I join the opinion of Mr. Justice BLACK, but add a brief comment.
21
The elimination of any needed or useful public accommodation or service is surely undesirable and this is particularly so of public recreational facilities. Unfortunately the growing burdens and shrinking revenues of municipal and state governments may lead to more and more curtailment of desirable services. Inevitably every such constriction will affect some groups or segments of the community more than others. To find an equal protection issue in every closing of public swimming pools, tennis courts, or golf courses would distort beyond reason the meaning of that important constitutional guarantee. To hold, as petitioners would have us do, that every public facility or service, once opened, constitutionally 'locks in' the public sponsor so that it may not be dropped (see the footnote to Mr. Justice BLACKMUN's concurring opinion), would plainly discourage the expansion and enlargement of needed services in the long run.
22
We are, of course, not dealing with the wisdom or desirability of public swimming pools; we are asked to hold on a very meager record that the Constitution requires that public swimming pools, once opened, may not be closed. But all that is good is not commanded by the Constitution and all that is bad is not forbidden by it. We would do a grave disservice, both to elected officials and to the public, were we to require that every decision of local governments to terminate a desirable service be subjected to a microscopic scrutiny for forbidden motives rendering the decision unconstitutional.
23
Mr. Justice BLACKMUN, concurring.
24
I, too, join Mr. Justice BLACK's opinion and the judgment of the Court.
25
Cases such as this are 'hard' cases for there is much to be said on each side. In isolation this litigation may not be of great importance; however, it may have significant implications.
26
The dissent of Mr. Justice WHITE rests on a conviction that the closing of the Jackson pools was recially motivated, at least in part, and that municipal action so motivated is not to be tolerated. That dissent builds to its conclusion with a detailed review of the city's and the State's official attitudes of past years.
27
Mr. Justice BLACK's opinion stresses, on the other hand, the facially equal effect upon all citizens of the decision to discontinue the pools. It also emphasizes the difficulty and undesirability of resting any constitutional decision upon what is claimed to be legislative motivation.
28
I remain impressed with the following factors: (1) No other municipal recreational facility in the city of Jackson has been discontinued. Indeed, every other service—parks, auditoriums, golf courses, zoo—that once was segregated, has been continued and operates on a nonsegregated basis. One must concede that this was effectuated initially under pressure of the 1962 declaratory judgment of the federal court. (2) The pools are not part of the city's educational system. They are a general municipal service of the nice-to-have but not essential variety, and they are a service, perhaps a luxury, not enjoyed by many communities. (3) The pools had operated at a deficit. It was the judgment of the city officials that these deficits would increase. (4) I cannot read into the closing of the pools an official expression of inferiority toward black citizens, as Mr. Justice WHITE and those who join him repetitively assert, post, at 240—241, 266, and 268, and certainly on this record I cannot perceive this to be a 'fact' or anything other than speculation. Furthermore, the alleged deterrent to relief, said to exist because of the risk of losing other public facilities, post, at 269, is not detectable here in the face of the continued and desegregated presence of all other recreational facilities provided by the city of Jackson. (5) The response of petitioners' counsel at oral argument to my inquiry* whether the city was to be 'locked in' with its pools for an indefinite time in the future, despite financial loss of whatever amount, just because at one time the pools of Jackson had been segregated, is disturbing.
29
There are, of course, opposing considerations enumerated in the two dissenting opinions. As my Brothers BLACK, DOUGLAS, and WHITE all point out, however, the Court's past cases do not precisely control this one, and the present case, if reversed, would take us farther than any before. On balance, in the light of the factors I have listed above, my judgment is that this is neither the time nor the occasion to be punitive toward Jackson for its past constitutional sins of segregation. On the record as presented to us in this case, I therefore vote to affirm.
30
Mr. Justice DOUGLAS, dissenting.
31
Jackson, Mississippi, closed all the swimming pools. 206 F.Supp. 539. it, following a judgment of the Court of Appeals in Clark v. Thompson, 5 Cir., 313 F.2d 637, which affirmed the District Court's grant of a declaratory judgment that three Negroes were entitled to the desegregated use of the city's swimming pools. 206 F.Supp. 539, 542. No municipal swimming facilities have been opened to any citizen of either race since that time; and the city apparently does not intend to reopen the pools on an integrated basis.
32
That program is not, however, permissible if it denies rights created or protected by the Constitution. Buchanan v. Warley, 245 U.S. 60, 81, 38 S.Ct. 16, 20, 62 L.Ed. 149. I think that the plan has that constitutional defect; and that is the burden of this dissent.
33
Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616; Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830, and Griffin v. County School Board, etc., 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256, do not precisely control the present case. They are different because there state action perpetuated on-going regimes of racial discrimination in which the State was implicated.
34
In Griffin, the State closed public schools in one county only, not in the others, and meanwhile contributed to the support of private segregated white schools. 377 U.S., at 232, 84 S.Ct., at 1233. That, of course, was a continuation of segregation in another form. In Hunter a city passed a housing law which provided that before an ordinance regulating the sale or lease of realty on the basis of race could become effective it had to be approved by a majority vote. Thus the protection of minority interests became much more difficult.1 We held that a state agency could not in its voting scheme so disadvantage Negro interests. In Reitman the State repealed legislation prohibiting racial discrimination in housing, thus encouraging racial discrimination in the housing market. 387 U.S., at 376, 87 S.Ct., at 1631.
35
Whether, in the closing of all municipal swimming pools in Jackson, Mississippi, any artifices and devices were employed as in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45, to make the appearance not conform to the reality, is not shown by this record. Under Burton, if the State has a continuing connection with a swimming pool, it becomes a public facility and the State is under obligation to see that the operators meet all Fourteenth Amendment responsibilities. 365 U.S., at 725, 81 S.Ct., at 861. We may not reverse under Burton because we do not know what the relevant facts are.
36
Closer in point is Bush v. Orleans Parish School Board, D.C., 187 F.Supp. 42, aff'd, 365 U.S. 569, 81 S.Ct. 754, 5 L.Ed.2d 806. Louisisiana, as part of her strategy to avoid a desegregated public school system, authorized the Governor to close any public school ordered to be integrated. The three-judge District Court relying on Cooper v. Aaron, 358 U.S. 1, 17, 78 S.Ct. 1401, 1409, 3 L.Ed.2d 5, held that the Act was unconstitutional and enjoined the Governor from enforcing it. The District Court decision was so clearly correct that we wrote no opinion when we affirmed the three-judge court. While there were other Louisiana laws also held unconstitutional as perpetuating a state segregated school system, the one giving the Governor the right to close any public school ordered integrated seems indistinguishable from this one.
37
May a State in order to avoid integration of the races abolish all of its public schools? That would dedicate the State to backwardness, ignorance, and existence in a new Dark Age. Yet is there anything in the Constitution that says that a State must have a public school system? Could a federal court enjoin the dismantling of a public school system? Could a federal court order a city to levy the taxes necessary to construct a public school system? Such supervision over municipal affairs by federal courts would be a vast undertaking, conceivably encompassing schools, parks, playgrounds, civic auditoriums, tennis courts, athletic fields, as well as swimming pools.
38
My conclusion is that the Ninth Amendment has a bearing on the present problem. It provides:
39
'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'
40
Rights, not explicitly mentioned in the Constitution, have at times been deemed so elementary to our way of life that they have been labeled as basic rights. Such is the right to travel from State to State. United States v. Guest, 383 U.S. 745, 758, 86 S.Ct. 1170, 1178, 16 L.Ed.2d 239. Such is also the right to marry. Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010. The 'rights' retained by the people within the meaning of the Ninth Amendment may be related to those 'rights' which are enumerated in the Constitution. Thus the Fourth Amendment speaks of the 'right of the people to be secure in their persons, houses, papers, and effects' and protects it by well-known procedural devices. But we have held that that enumerated 'right' also has other facets commonly summarized in the concept of privacy. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510.
41
There is, of course, not a word in the Constitution, unlike many modern constitutions, concerning the right of the people to education or to work or to recreation by swimming or otherwise. Those rights, like the right to pure air and pure water, may well be rights 'retained by the people' under the Ninth Amendment. May the people vote them down as well as up?
42
A State may not, of course, interfere with interstate commerce; and to the extent that public services are rendered by interstate agencies the State by reason of the Supremacy Clause is powerless to escape. The right to vote is a civil right guaranteed by the Constitution as we recently re-emphasized in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272. In Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430, the State required designation on the ballots of every candidate's race. We said:
43
'In the abstract, Louisiana imposes no restriction upon anyone's candidacy nor upon an elector's choice in the casting of his ballot. But by placing a racial label on a candidate at the most crucial stage in the electoral process the instant before the vote is cast—the State furnishes a vehicle by which racial prejudice may be so aroused as to operate against one group because of race and for another. This is true because by directing the citizen's attention to the single consideration of race or color, the State indicates that a candidate's race or color is an important perhaps paramount—consideration in the citizen's choice, which may decisively influence the citizen to cast his ballot along racial lines.' 375 U.S., at 402, 84 S.Ct., at 456.
44
A constitutional right cannot be so burdened. We stated in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628, that: 'One's right to life, liberty, and property * * * and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.' And we added in Lucas v. Forty-Fourth Colorado General Assembly, 377 U.S. 713, 736—737, 84 S.Ct. 1459, 1474, 12 L.Ed.2d 632 'A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that (they) be.' Thus the right of privacy, which we honored in Griswold, may not be overturned by a majority vote at the polls, short of a constitutional amendment.
45
In determining what municipal services may not be abolished the Court of Appeals drew the line between 'an essential public function' and other public functions. Whether state constitutions draw that line is not our concern. Certainly there are no federal constitutional provisions which make that distinction.
46
Closing of the pools probably works a greater hardship on the poor than on the rich; and it may work greater hardship on poor Negroes than on poor whites, a matter on which we have no light. Closing of the pools was at least in part racially motivated. And, as stated by the dissenters in the Court of Appeals:
47
'The closing of the City's pools has done more than deprive a few thousand Negroes of the pleasures of swimming. It has taught Jackson's Negroes a lesson: In Jackson the price of protest is high. Negroes there now know that they risk losing even segregated public facilities if they dare to protest segregation. Negroes will now think twice before protesting segregated public parks, segregated public libraries, or other segregated facilities. They must first decide whether they wish to risk living without the facility altogether, and at the same time engendering further animosity from a white community which has lost its public facilities also through the Negroes' attempts to desegregate these facilities.
48
'The long-range effects are manifold and far-reaching. If the City's pools may be eliminated from the public domain, parks, athletic activities, and libraries also may be closed. No one can say how many other cities may also close their pools or other public facilities. The City's action tends to separate the races, encourage private discrimination, and raise substantial obstacles for Negroes asserting the rights of national citizenship created by the Wartime Amendments.' 419 F.2d 1222, 1236.
49
That view has strong footing in our decisions. 'The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.' Loving v. Virginia, 388 U.S., at 10, 87 S.Ct. at 1823. Cf. McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222. When the effect is 'to chill the assertion of constitutional rights by penalizing those who choose to exercise them' (United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138) that state action is 'patently unconstitutional.'
50
While Chief Justice Marshall intimated in Fletcher v. Peck, 6 Cranch 87, 130, 3 L.Ed. 162, that the motives which dominate or influence legislators in enacting laws are not fit for judicial inquiry, we do look closely at the thrust of a law to determine whether in purpose or effect there was an invasion of constitutional rights. See Epperson v. Arkansas, 393 U.S. 97, 109, 89 S.Ct. 266, 273, 21 L.Ed.2d 228; Griffin v. County School Board of Prince Edward County, 377 U.S., at 231, 84 S.Ct., at 1233. A candidate may be defeated because the voters are bigots. A racial issue may inflame a community causing it to vote a humane measure down. The federal judiciary cannot become involved in those kinds of controversies. The question for the federal judiciary is not what the motive was, put what the consequences are.
51
In Reitman an active housing program had been racially dominated and then controlled by a state law ending discrimination. But in time the State reversed its policy and lifted the anti-discrimination controls. Thus it launched or at least tolerated a regime of racially discriminatory housing.
52
It is earnestly argued that the same result obtains here because the regime of desegregated swimming decreed by the District Court is ended and is supplanted by state-inspired, state-favored private swimming pools by clubs and others which perpetuate segregation.
53
We are told that the history of this episode shows the 'steel-hard, inflexible, undeviating official policy of segregation' in Mississippi. United States v. City of Jackson, 5 Cir., 318 F.2d 1, 5.
54
I believe that freedom from discrimination based on race, creed, or color has become by reason of the Thirteenth, Fourteenth, and Fifteenth Amendments one of the 'enumerated rights' under the Ninth Amendment that may not be voted up or voted down.
55
Much has been written concerning the Ninth Amendment including the suggestion that the rights there secured include 'rights of natural endowment.'2 B. Patterson, The Forgotten Ninth Amendment 53 (1955).
56
Mr. Justice Goldberg, concurring in Griswold v. Connecticut, supra, 381 U.S., at 492, 85 S.Ct., at 1686, said:
57
'(T)he Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.'3
58
We need not reach that premise in this case. We deal here with analogies to rights secured by the Bill of Rights or by the Constitution itself. Franklin, The Ninth Amendment as Civil Law Method and its Implications for Republican Form of Government, 40 Tulane L.Rev. 487, 490—492 (1966); Redlich, Are There 'Certain Rights * * * Retained by the People?', 37 N.Y.U.L.Rev. 787, 810 812 (1962); Black, The Unfinished Business of the Warren Court, 46 Wash.L.Rev. 3, 37—45 (1970); Kutner, The Neglected Ninth Amendment: The 'Other Rights' Retained by the People, 51 Marq.L.Rev. 121, 134—137 (1968).
59
'The Fourteenth Amendment and the two escorting amendments establish a principle of absolute equality, an equality which is denied by racial separation or segregation because the separation in truth consecrates a hierarchy of racial relations, and hence permits inequality.'4
The Solicitor General says:
60
'(T)o the extent that the municipality had voluntarily undertaken to provide swimming facilities for its citizens, making it unnecessary for the private sector to develop equally adequate facilities, the closing of the pools has insured that racial segregation will be perpetuated.' Our cases condemn the creation of state laws and regulations which foster racial discrimination—segregated schools, segregated parks, and the like. The present case, to be sure, is only an analogy. The State enacts no law saying that the races may not swim together. Yet it eliminates all its swimming pools so that the races will not have the opportunity to swim together. While racially motivated state action is involved, it is of an entirely negative character. Yet it is in the penumbra5 of the policies of the Thirteenth, Fourteenth, and Fifteenth Amendments and as a matter of constitutional policy should be in the category of those enumerated rights protected by the Ninth Amendment. If not included, those rights become narrow legalistic concepts which turn on the formalism of laws, not on their spirit.
61
I conclude that though a State may discontinue any of its municipal services—such as schools, parks, pools, athletic fields, and the like—it may not do so for the purpose of perpetuating or installing apartheid or because it finds life in a multi-racial community difficult or unpleasant. If that is its reason, then abolition of a designated public service becomes a device for perpetuating a segregated way of life. That a State may not do.
62
As Mr. Justice Brennan said in Evans v. Abney, 396 U.S. 435, 453, 90 S.Ct. 628, 638, 24 L.Ed.2d 634 (dissenting), where a State abandoned a park to avoid integration:
63
'I have no doubt that a public park may constitutionally be closed down because it is too expensive to run or has become superfluous, or for some other reason, strong or weak, or for no reason at all. But under the Equal Protection Clause a State may not close down a public facility solely to avoid its duty to desegregate that facility.' Hunter and Reitman went to the verge of that problem. Bush went the whole way. We should reaffirm what our summary affirmance of Bush plainly implied.
64
Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
65
I agree with the majority that the central purpose of the Fourteenth Amendment is to protect Negroes from invidious discrimination. Consistent with this view, I had thought official policies forbidding or discouraging joint use of public facilities by Negroes and whites were at war with the Equal Protection Clause. Our cases make it unquestionably clear, as all of us agree, that a city or State may not enforce such a policy by maintaining officially separate facilities for the two races. It is also my view, but apparently not that of the majority, that a State may not have an official stance against desegregating public facilities and implement it by closing those facilities in response to a desegregation order.
66
Let us assume a city has been maintaining segregated swimming pools and is ordered to desegregate them. Its express response is an official resolution declaring desegregation to be contrary to the city's policy and ordering the facilities closed rather than continued in service on a desegregated basis. To me it is beyond cavil that on such facts the city is adhering to an unconstitutional policy and is implementing it by abandoning the facilities. It will not do in such circumstances to say that whites and Negroes are being treated alike because both are denied use of public services. The fact is that closing the pools is an expression of official policy that Negroes are unfit to associate with whites. Closing pools to prevent interracial swimming is little different from laws or customs forbidding Negroes and whites from eating together or from co-habiting or intermarrying. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338 (1963). The Equal Protection Clause is a hollow promise if it does not forbid such official denigrations of the race the Fourteenth Amendment was designed to protect.
67
The case before us is little, if any, different from the case just described. Jackson, Mississippi, closed its swimming pools when a district judge struck down the city's tradition of segregation in municipal services and made clear his expectation that public facilities would be integrated. The circumstances surrounding this action and the absence of other credible reasons for the closings leave little doubt that shutting down the pools was nothing more or less than a most effective expression of official policy that Negroes and whites must not be permitted to mingle together when using the services provided by the city.
68
I am quite unpersuaded by the majority's assertion that it is impermissible to impeach the otherwise valid act of closing municipal swimming pools by resort to evidence of invidious purpose or motive. Congress has long provided civil and criminal remedies for a variety of official and private conduct. In various situations these statutes and our interpretations of them provide that such conduct falls within the federal proscription only upon proof of forbidden racial motive or animus. An otherwise valid refusal to contract the sale of real estate falls within the ban of 42 U.S.C. § 1982 upon proof that the refusal was racially motivated. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). A restaurant's refusal to serve a white customer is actionable under 42 U.S.C. § 1983 where the evidence shows that refusal occurred because the white was accompanied by Negroes and was pursuant to a state-enforced custom of racial segregation. Adickes, supra. Just last week in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338, we construed 42 U.S.C. § 1985(3) to reach wholly private conspiracies—in that case to commit assault on Negroes where sufficient evidence of 'racial * * * animus' or 'invidiously discriminatory motivation' accompanied the conspirators' actions. Griffin v. Breckenridge, supra, at 102, 91 S.Ct. at 1798. In rejecting the argument that § 1985(3) was subject to an implied state action limitation, we indicated that racially motivated conspiracies or activities would be actionable under § 1983 if done under color of law. Id., at 98—99, 91 S.Ct. at 1796—1797. Official conduct is no more immune to characterization based on its motivation than is private conduct, and we have so held many times. The police are vulnerable under § 1983 if they subject a person 'to false arrest for vagrancy for the purpose of harassing and punishing (him) for attempting to eat with black people,' Adickes, supra, 398 U.S., at 172, 90 S.Ct., at 1616, or if they 'intentionally tolerate violence or threats of violence directed toward those who violated the practice of segregating the races at restaurants.' Ibid.
69
In another decision last week, we reversed a three-judge court ruling in a suit under § 1983 that the multi-member apportionment plan there involved operated to minimize or dilute the voting strength of Negroes in an identifiable ghetto area. However, in an opinion joined by four members of the majority in the instant case, we cautioned that:
70
'(T)he courts have been vigilant in scrutinizing schemes allegedly conceived or operated as purposeful devices to further racial discrimination. * * * But there is no suggestion here that Marion County's multi-member district, or similar districts throughout the State, were conceived or operated as purposeful devices to further racial or economic discrimination.' Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363 (1971) (emphasis added).
71
Further, motivation in analysis has assumed great importance in suits under 42 U.S.C. § 1983 as a result of this Court's opinions in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its companion cases. There the Court held that even though a state criminal prosecution was pending, federal relief would be appropriate on allegations in a complaint to the effect that state officials were utilizing state criminal statutes in bad faith, with no hope of obtaining valid convictions under them, in an effort to harass individuals in the exercise of their constitutional rights. Obviously, in order to determine its jurisdiction in each such case, a federal court must examine and make a determination of the same kind of official motivation which the Court today holds unreviewable.
72
In thus pursuing remedies under the federal civil rights laws, as petitioners are doing under §§ 1981 and 1983 here, Negro plaintiffs should have every right to prove that the action of the city officials was motivated by nothing but racial considerations. In examining their contentions, it will be helpful to re-create the context in which this case arises.
73
* In May 1954, this Court held that '(s)eparate educational facilities are inherently unequal.' Brown v. Board of Education, 347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873. In a series of opinions following closely in time, the Court emphasized the universality and permanence of the principle that segregated public facilities of any kind were no longer permissible under the Fourteenth Amendment. Muir v. Louisville Park Theatrical Assn., 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112, (1954), decided one week after Brown, saw the Court review a decision of the Court of Appeals for the Sixth Circuit, 202 F.2d 275 which had affirmed a district court order holding that Negro plaintiffs were entitled to the use of public golf courses and a public fishing lake in Iroquois Park in Louisville, but that the privately owned theatrical association that leased a city-owned amphitheater in the same park was not guilty of discrimination proscribed by the Fourteenth Amendment in refusing to admit Negroes to its operatic performances. The Court vacated the judgment and remanded 'for consideration in the light of the Segregation Cases decided May 17, 1954 * * * and conditions that now prevail.' Ibid.1
74
At the beginning of the October 1955 Term, the Court resolved any possible ambiguity about the action taken in Muir. In a pair of summary decisions, the Court made it clear that state-sanctioned segregation in the operation of public recreational facilities was prohibited. Mayor and City Council of Baltimore v. Dawson, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774 (1955), was a summary affirmance of a decision by the Court of Appeals for the Fourth Circuit, 220 F.2d 386 that officials of the State and city could not enforce a policy of racial segregation at public beaches and bathhouses. On the same day, the Court confirmed that use of a public golf course could not be denied to any person on account of his race. Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776 (1955).
75
The lower federal courts played a very important role in this ongoing process. For example, in June 1956, a three-judge district court in Alabama, relying on Brown, Dawson, and Holmes, held that:
76
'(T)he statutes and ordinances requiring segregation of the white and colored races on the motor buses of a common carrier of passengers in the City of Montgomery and its police jurisdiction violate the due process and equal protection of the law clauses of the Fourteenth Amendment. * * *'
77
Browder v. Gayle, 142 F.Supp. 707, 717 (M.D.Ala). Again this Court affirmed summarily, citing Brown, Dawson, and Holmes. 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (1956). Some public officials remained unconvinced. In early 1958, the Court of Appeals for the Fifth Circuit summarily rejected as without merit an appeal by the New Orleans City Park Improvement Association from a summary judgment including a permanent injunction prohibiting the Association, a municipal corporation from denying Negroes the use of the facilities of the New Orleans City Park. New Orleans City Park Improvement Assn. v. Detiege, 252 F.2d 122 (C.A.5 1958). When the Association took a further appeal to this Court, the judgment was affirmed in a one-line opinion. New Orleans City Park Improvement Assn. v. Detiege, 358 U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46 (1958). Other decisions in this Court and the lower federal courts demonstrated the pervasive idea that officially segregated public facilities were not equal.2
78
Throughout the same period, this Court and other courts rejected attempts by various public bodies to evade their clear duty under Brown and its progeny by employing delaying tactics or other artifices short of open defiance. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Watson v. City of Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963); Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964).3 Meanwhile, countless class suits seeking desegregation orders were successfully prosecuted by Negro plaintiffs in the lower federal courts. Many public facilities were opened to all citizens, regardless of race, without direct intervention by this Court. Several of these local suits are relevant to the present case.
79
The city of Jackson was one of many places where the consistent line of decisions following from Brown had little or no effect.4 Public recreational facilities were not desegregated although it had become clear that such action was required by the Constitution. As respondents state in their brief in this case:
80
'In 1963 the City of Jackson was operating equal but separate recreational facilities such as parks and golf links, including swimming pools. A suit was brought in the Southern District of Mississippi to enjoin the segregated operation of these facilities. The City of Jackson took the position in that litigation that the segregation of recreational facilities, if separate but equal recreational facilities were provided and if citizens voluntarily used segregated facilities, was constitutional.' Respondents' Brief 2.
81
This was nearly nine years after Brown and more than seven years after Dawson and Holmes.
82
The suit respondents refer to was instituted in 1962 as a class action by three Negro plaintiffs who alleged that some city facilities—parks, libraries, zoo, golf courses, playgrounds, auditoriums, and other recreational complexes—were closed to them because of their race. The defendants were Jackson city officials, including Mayor Allen C. Thompson and Director of Parks and Recreation George Kurts, both respondents in the present case. The plaintiffs in that suit were successful. The District Court's opinion began by stating that Jackson was a city 'noted for its low crime rate and lack of racial friction except for the period in 1961 when the self-styled Freedom Riders made their visits.' Clark v. Thompson, 206 F.Supp. 539, 541 (S.D.Miss.1962). It was also stated that Jackson had racially exclusive neighborhoods, that as this residential pattern had developed the city had 'duplicated' its recreational facilities in white and Negro areas, and that members of each race 'have customarily used the recreational facilities located in close proximity to their homes.' Ibid. The final finding of fact was that the 'defendants are not enforcing separation of the races in public recreational facilities in the City of Jackson. The defendants do encourage voluntary separation of the races.' Ibid.5
83
Among the District Court's conclusions of law were the following: (1) that the suit was not a proper class action since the Negro plaintiffs had failed to show that their interests were not antagonistic to or incompatible with those of the purported class;6 (2) that the three original plaintiffs were entitled to an adjudication by declaratory judgment of 'their personal claims of right to unsegregated use of public recreational facilities,' 206 F.Supp., at 542; (3) that injunctive relief was inappropriate as a matter of law;7 and (4) that
84
'The individual defendants in this case are all outstanding, high class gentlemen and in my opinion will not violate the terms of the declaratory judgment issued herein. They know now what the law is and what their obligations are, and I am definitely of the opinion that they will conform to the ruling of this Court without being coerced so to do by an injunction. The City of Jackson, a municipality, of course is operated by some of these high class citizens. I am further of the opinion that during this period of turmoil the time now has arrived when the judiciary should not issue injunctions perfunctorily, but should place trust in men of high character that they will obey the mandate of the Court without an injunction hanging over their heads.' 206 F.Supp., at 543.
85
As the city has stressed in its brief here, it did not appeal from this judgment, which was entered in May 1962. The Negro plaintiffs, however, did appeal, claiming that the relief afforded was inadequate. The Court of Appeals for the Fifth Circuit affirmed per curiam, 313 F.2d 637 (CA5 1963). On December 16, 1963, this Court denied certiorari, 375 U.S. 951, 84 S.Ct. 440, 11 L.Ed.2d 312.
86
It must be noted here that none of Jackson's public recreational facilities was desegregated until after the appellate proceedings in Clark v. Thompson were fully concluded.8 This was true despite the fact that under this Court's prior decisions the only possible result of such review would have been a broadening of the relief granted by the District Judge. Moreover, from the time of the trial court's decision in Clark v. Thompson, the mayor of Jackson made public statements, of record in this case, indicating his dedication to maintaining segregated facilities. On May 24, 1962, nine days after the District Court's decision in Clark v. Thompson, the Jackson Daily News quoted Mayor Thompson as saying:
87
"We will do all right this year at the swimming pools * * * but if these agitators keep up their pressure, we would have five colored swimming pools because we are not going to have any intermingling.' * * * He said the City now has legislative authority to sell the pools or close them down if they can't be sold.' App. 15.
88
A year passed while the appeals in Clark v. Thompson were pending, but the city's official attitude did not change. On May 24, 1963, the Jackson Daily News reported that 'Governor Ross Barnett today commended Mayor Thompson for his pledge to maintain Jackson's present separation of the races.' Appendix 15. On the next day, the same newspaper carried a front page article stating that 'Thompson said neither agitators nor President Kennedy will change the determination of Jackson to retain segregation.' App. 16.
89
During May and June 1963, the Negro citizens of Jackson organized to present their grievances to city officials. On May 27, a committee representing the Negro community met with the mayor and two city commissioners. Among the grievances presented was a specific demand that the city desegregate public facilities, including the city-operated parks and swimming pools.
90
On the day following this meeting, the Jackson Daily News quoted the mayor as saying:
91
"In spite of the current agitation, the Commissioners and I shall continue to plan and seek money for additional parks for our Negro citizens. Tomorrow we are discussing with local Negro citizens plans to immediately begin a new clubhouse and library in the Grove Park area, and other park and recreational facilities for Negroes throughout the City. We cannot proceed, however, on the proposed $100,000 expenditure for a Negro swimming pool in the Grove Park area as long as there is the threat of racial disturbances." App. 15.
92
On May 30, 1963, the same paper reported that the mayor had announced that '(p)ublic swimming pools would not be opened on schedule this year due to some minor water difficulty.' App. 5.
93
The city at this time operated five swimming facilities on a segregated basis: the Livingston Lake swimming facility, in reality a lake with beach facilities, at Livingston Park; a swimming pool in Battlefield Park; a swimming pool and a wading pool in Riverside Park; a pool that the city leased from the YMCA in Leavell Woods Park; a swimming pool and a wading pool for Negroes in College Park.9 In literature describing its Department of Parks and Recreation, the city stressed that '(o)ur $.10 and $.20 charge for swimming * * * (is) the lowest to be found anywhere in the country. The fees are kept low in order to serve as many people as possible.' In one of two affidavits that he filed below, Parks Director Kurts stated that for the years 1960, 1961, and 1962, the average annual expense to the city of operating each of the pools in Battlefield, Riverside, and College Park was $10,000. The average annual revenue from the pools in Battlefield and Riverside Parks was $8,000 apiece; the average annual revenue from the Negro pool in College Park was $2,300. Thus, for these three facilities, the city was absorbing an annual loss of approximately $11,700, and was doing so 'in order to serve as many people as possible.'
94
From the time of the announcement of 'minor water difficulty' at the end of May 1963, none of these swimming facilities has operated under public aegis. The city canceled its lease on the Leavell Woods pool, and it has since been operated on a 'whites only' basis by its owner, the YMCA, apparently without city involvement.10 At oral argument, counsel for the city informed us that the pool that was located in the Negro neighborhood—the College Park pool—'was sold by the City to the Y. The YMCA opened it up and the black people boycotted so it wasn't being used, then the YMCA sold it to Jackson State College, Jackson State now owns it and operates it * * * for the students at Jackson State and their guests * * *.' Tr. of Oral Arg. 31. According to the record below, the Battlefield Park and Riverside Park pools, both in white neighborhoods, have remained closed but have been properly maintained and prevented from falling into disrepair by the city, although they produce no offsetting revenue. The Livingston Lake facility has apparently remained in its natural state.11
95
In August 1965, petitioners brought the present class action in the Southern District of Mississippi. They challenged the closing of the pools and racial segregation in the city jail, seeking both declaratory and injunctive relief. The case was tried on affidavits and stipulations and submitted to the District Judge. In addition to the evidence summarized above, Mayor Thompson filed an affidavit which stated:
96
'Realizing that the personal safety of all of the citizens of the City and the maintenance of law and order would prohibit the operation of swimming pools on an integrated basis, and realizing that the said pools could not be operated economically on an integrated basis, the City made the decision subsequent to the Clark case to close all pools owned and operated by the City of members of both races.' App. 21.12
97
Parks Director Kurts filed a similar affidavit, averring:
98
'That after the decision of the Court in the case of Clark v. Thompson, it became apparent that the swimming pools owned and operated by the City of Jackson could not be operated peacefully, safely, or economically on an integrated basis, and the City decided that the best interest of all citizens required the closing of all public swimming pools owned and operated by the City * * *.' App. 18.13
99
Based on these affidavits, the District Judge found as a fact that the decision to close the pools was made after Clark v. Thompson and that the pools could not be operated safely or economically on an integrated basis. Accordingly, he held that petitioners were not entitled to any relief and dismissed the complaint. On appeal, a panel of the Court of Appeals for the Fifth Circuit affirmed. Palmer v. Thompson, 391 F.2d 324 (1967). On rehearing en banc, the Court of Appeals, by a seven-to-six vote, again affirmed dismissal of the complaint. 419 F.2d 1222 (1969). Both courts below rejected petitioners' argument that because the pools were closed to avoid court orders that would require their desegregation, the city's action was a denial of equal protection. We granted certiorari to decide that issue, 397 U.S. 1035, 90 S.Ct. 1364, 25 L.Ed.2d 646 (1970), and for the reasons that follow I would reverse.
II
100
There is no dispute that the closing of the pools constituted state action. Similarly, there can be no disagreement that the desegregation ruling in Clark v. Thompson was the event that precipitated the city's decision to cease furnishing public swimming facilities to its citizens.14 Although the secondary evidence of what the city officials thought and believed about the wisdom of desegregation is relevant, it is not necessary to rely on it to establish the causal link between Clark v. Thompson and the closings. The officials' sworn affidavits, accepted by the courts below, stated that loss of revenue and danger to the citizens would obviously result from operating the pools on an integrated basis. Desegregation, and desegregation alone, was the catalyst that would produce these undesirable consequences. Implicit in this official judgment were assumptions that the citizens of Jackson were of such a mind that they would no longer pay the 10- or 20-cent fee imposed by the city if their swimming and wading had to be done with their neighbors of another race, that some citizens would direct violence against their neighbors for using pools previously closed to them, and that the anticipated violence would not be controllable by the authorities. Stated more simply, although the city officials knew what the Constitution required after Clark v. Thompson became final, their judgment was that compliance with that mandate, at least with respect to swimming pools, would be intolerable to Jackson's citizens.
101
Predictions such as this have been presented here before. One year after the District Court's opinion in Clark v. Thompson, this Court reviewed a case in which municipal officials had made the same assumption and had acted upon it. In Memphis, Tennessee, Brown and the cases discussed above had little effect until May 1960, when Negro residents sued for declaratory and injunctive relief directing immediate desegregation of the municipal parks and other city-owned and city-operated recreational facilities. The city agreed that the Fourteenth Amendment required all facilities to be opened to citizens regardless of race and that the majority of city-run facilities remained segregated at the time of suit, six years after Brown. It was nevertheless asserted that desegregation was under way and that further delay in achieving full desegregation was the wise and proper course. Both of the lower courts denied plaintiffs relief, the net result being an order directing the city to submit within six months a plan providing for gradual desegregation of all the city's recreational facilities.
102
This Court unanimously rejected further delay in integrating these facilities. Watson v. City of Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963). It did so although the city asserted its good-faith attempt to comply with the Constitution and its honest belief that gradual desegregation, facility by facility, was necessary to prevent interracial strife. The Court's 'compelling answer to this contention (was) that constitutional rights may not be denied simply because of hostility to their assertion or exercise.' Id., at 535, 83 S.Ct., at 1319. See also Buchanan v. Warley, 245 U.S. 60, 81, 38 S.Ct. 16, 20, 62 L.Ed. 149 (1917); Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955); Cooper v. Aaron, 358 U.S., at 16, 78 S.Ct., at 1408; Wright v. Georgia, 373 U.S. 284, 291—293, 83 S.Ct. 1240, 1245—1246, 10 L.Ed.2d 349 (1963). The record in the case was reviewed in some detail. I quote at length because of the pertinence of the Court's observations.
103
'Beyond this, however, neither the asserted fears of violence and tumult nor the asserted inability to preserve the peace was demonstrated at trial to be anything more than personal speculations or vague disquietudes of city officials. There is no indication that there had been any violence or meaningful disturbances when other recreational facilities had been desegregated. In fact, the only evidence in the record was that such prior transitions had been peaceful. The Chairman of the Memphis Park Commission indicated that the city had 'been singularly blessed by the absence of turmoil up to this time on this race question'; notwithstanding the prior desegregation of numerous recreational facilities, the same witness could point as evidence of the unrest or turmoil which would assertedly occur upon complete desegregation of such facilities only to a number of anonymous letters and phone calls which he had received. The Memphis Chief of Police mentioned without further description some 'troubles' at the time bus service was desegregated and referred to threatened violence in connection with a 'sit-in' demonstration at a local store, but, beyond making general predictions, gave no concrete indication of any inability of authorities to maintain the peace. The only violence referred to at any park or recreational facility occurred in segregated parks and was not the product of attempts at desegregation. Moreover, there was no factual evidence to support the bare, testimonial speculations that authorities would be unable to cope successfully with any problems which in fact might arise or to meet the need for additional protection should the occasion demand.
104
'The existing and commendable goodwill between the races in Memphis, to which both the District Court and some of the witnesses at trial made express and emphatic reference as in some inexplicable fashion supporting the need for further delay, can best be preserved and extended by the observance and protection, not the denial, of the basic constitutional rights here asserted. The best guarantee of civil peace is adherence to, and respect for, the law.
105
'The other justifications for delay urged by the city or relied upon by the courts below are no more substantial, either legally or practically. It was, for example, asserted that immediate desegregation of playgrounds and parks would deprive a number of children—both Negro and white—of recreational facilities; this contention was apparently based on the premise that a number of such facilities would have to be closed because of the inadequacy of the 'present' park budget to provide additional 'supervision' assumed to be necessary to operate unsegregated playgrounds. As already noted, however, there is no warrant in this record for assuming that such added supervision would, in fact, be required, much less that police and recreation personnel would be unavailable to meet such needs if they should arise. More significantly, however, it is obvious that vindication of conceded constitutional rights cannot be made dependent upon any theory that it is less expensive to deny that to afford them. We will not assume that the citizens of Memphis accept the questionable premise implicit in this argument or that either the resources of the city are inadequate, or its government unresponsive, to the needs of all of its citizens.' 373 U.S., at 536—538, 83 S.Ct., at 1320 (footnotes omitted).
106
So it is in this case. The record before us does not include live testimony. It was stipulated by the parties after the District Judge had entered his order denying relief that the 'parties had an opportunity to offer any and all evidence desired.' The official affidavits filed were even less compelling than the evidence presented by city officials in Watson. The conclusion of city officials that integrated pools would not be 'economical' was no more than 'personal speculation.' The city made no showing that integrated operation would increase the annual loss of at least $11,700—a loss that, prior to 1963, the city purposely accepted for the benefit of its citizens as long as segregated facilities could be maintained. The prediction that the pools could not be operated safely if they were desegregated was nothing more than a 'vague disquietude.' In Watson, the record reflected that the parks commissioner had received a number of anonymous phone calls and letters presumably threatening violence, and that the chief of police had testified about troubles in connection with a sit-in demonstration and desegregation of the city buses. Here, Mayor Thompson's affidavit, filed in 1965, refers only to a time in 1961 'when racial tensions were inflamed by the visits of the freedom riders to Jackson.' Both the Thompson and Kurts affidavits assert that all other public recreational facilities in Jackson were desegregated following Clark v. Thompson. Neither affidavit contains the slightest hint—in general or specific terms—that this transition caused disorder or violence.15 As in Watson, there is no factual evidence that city law enforcement authorities would be unable to cope with any disturbances that might arise; unlike Watson, however, there is in this record not even a 'bare testimonial speculation' that this would be the case.
107
With all due respect, I am quite unable to agree with the majority's assertion, ante, at 225, that there is 'substantial evidence in the record' to support the conclusion of the lower courts that the pools could not be operated safely and economically on an integrated basis. Officials may take effective action to control violence or to prevent it when it is reasonably imminent. But the anticipation of violence in this case rested only on unsupported assertion, to which the permanent closing of swimming pools was a wholly unjustified response. The city seems to fear that even if some or all of the pools suffered a sharp decline in revenues from the levels pertaining before 1963 because Negro and white neighbors refused to use integrated facilities, the city could never close the pools for that reason. I need only observe that such a case, if documented by objective record evidence, would present different considerations. As Judge Wisdom stated below, 'We do not say that a city may never abandon a previously rendered municipal service. If the facts show that the city has acted in good faith for economic or other nonracial reasons, the action would have no overtones of racial degradation, and would therefore not offend the Constitution.' 419 F.2d, at 1237 n. 16 (dissenting opinion). It is enough for the present case to re-emphasize that the only evidence in this record is the conclusions of the officials themselves, unsupported by even a scintilla of added proof.
108
Watson counsels us to reject the vague speculation that the citizens of Jackson will not obey the law, as well as the correlative assumption that they would prefer no public pools to pools open to all residents who come in peace. The argument based on economy is no more than a claim that a major portion of the city's population will not observe constitutional norms. The argument based on potential violence, as counsel for the city indicated at oral argument, unfortunately reflects the views of a few immoderates who purport to speak for the white population of the city of Jackson. Tr. of Oral Arg. 36. Perhaps it could have been presented, but there is no evidence now before us that there exists any group among the citizens of Jackson that would employ lawless violence to prevent use of swimming pools by Negroes and whites together. In my view, the Fourteenth Amendment does not permit any official act—whether in the form of open refusal to desegregate facilities that continue to operate, decisions to delay complete desegregation, or closure of facilities—to be predicated on so weak a reed. Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held. Surely the promise of the Fourteenth Amendment demands more than nihilistic surrender. As Mr. Justice Frankfurter observed more than 12 years ago:
109
'The process of ending unconstitutional exclusion of pupils from the common school system—'common' meaning shared alike solely because of color is no doubt not an easy, overnight task in a few States where a drastic alteration in the ways of communities is involved. Deep emotions have, no doubt, been stirred. They will not be calmed by letting violence loose—violence and defiance employed and encouraged by those upon whom the duty of law observance should have the strongest claim—nor by submitting to it under whatever guise employed. Only the constructive use of time will achieve what an advanced civilization demands and the Constitution confirms.' Cooper v. Aaron, 358 U.S., at 25, 78 S.Ct., at 1413 (concurring opinion).
III
110
I thus arrive at the question of whether closing public facilities to citizens of both races, whatever the reasons for such action, is a special kind of state action somehow insulated from scrutiny under the Fourteenth Amendment. As the opinions of the majority and Mr. Justice DOUGLAS show, most of our prior decisions, because of their facts, do not deal with this precise issue.
111
Bush v. Orleans Parish School Board, 187 F.Supp. 42 (E.D.La1960), aff'd, 365 U.S. 569, 81 S.Ct. 754, 5 L.Ed.2d 806 (1961), is relevant. In that case, a three-judge court declared unconstitutional a number of Louisiana statutes designed to avoid desegregation of the public schools in that State. Among the laws stricken down was a statute giving the Governor the right to close any school ordered to integrate, a statute giving the Governor the right to close all schools if one was integrated, and a statute giving the Governor the right to close any school threatened with violence or disorder. We affirmed the District Court summarily and without dissent. Ibid.16 See also Hall v. St. Helena Parish School Board, 197 F.Supp. 649 (E.D.La.1961), aff'd, 368 U.S. 515, 82 S.Ct. 529, 7 L.Ed.2d 521 (1962).
112
Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964), is perhaps distinguishable, but only if one ignores its basic rationale and the purpose and direction of this Court's decisions since Brown. First, and most importantly, Griffin stands for the proposition that the reasons underlying certain official acts are highly relevant in assessing the constitutional validity of those acts. We stated:
113
'But the record in the present case could not be clearer that Prince Edward's public schools were closed and private schools operated in their place with state and county assistance, for one reason, and one reason only: to ensure, through measures taken by the county and the State, that white and colored children in Prince Edward County would not, under any circumstances, go to the same school. Whatever nonracial grounds might support a State's allowing a county to abandon public schools, the object must be a constitutional one, and grounds of race and opposition to desegregation do not qualify as constitutional.' 377 U.S., at 231, 84 S.Ct., at 1233.
114
See also Gomillion v. Lightfoot, 364 U.S. 339, 346—348, 81 S.Ct. 125, 129—131, 5 L.Ed.2d 110 (1960); Board of Education of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 243, 88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060 (1968); Epperson v. Arkansas, 393 U.S. 97, 109, 89 S.Ct. 266, 273, 21 L.Ed.2d 228 (1968); Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205 (1970); Note, Legislative Purpose and Federal Constitutional Adjudication, 83 Harv.L.Rev. 1887 (1970). Second, Griffin contains much that is relevant to the kind of decree which would be appropriate if the decision below is reversed. See 377 U.S., at 232—234, 84 S.Ct., at 1233—1235.
115
The majority, conceding the relevance of the quoted passage from Griffin, states that the 'focus in (both Griffin and Gomillion) was on the actual effect of the enactments, not upon the motivation which led the States to behave as they did.' Respondents agree, and argue further that the present record shows only that Jackson has closed facilities that were once open on a segregated basis and that the closing operates equally on Negroes and whites alike.
116
But if effect was all that the Court considered relevant in Griffin, there was no need to mention underlying purpose and to stress the delay that took place in Virginia in implementing Brown.17 More importantly, Griffin was only one case in a series stressing that the Fourteenth Amendment rights 'declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted 'ingenioously or ingenuously.' Smith v. Texas, 311 U.S. 128, 132, 61 S.Ct. 164, 166, 85 L.Ed. 84.' Cooper v. Aaron, supra, 358 U.S., at 17, 78 S.Ct. at 1409. It seems to me neither wise nor warranted to limit this principle in a case where the record is as clear as is the one presently before us.
117
State action predicated solely on opposition to a lawful court order to desegregate is a denial of equal protection of the laws. As Judge Wisdom said in dissent below, the argument that the closing of the pools operated equally on Negroes and whites 'is a tired contention, one that has been overworked in civil rights cases.' 419 F.2d, at 1232 (dissenting opinion). It was made and rejected in Griffin. See, e.g., Brief of Respondent Board of Supervisors of Prince Edward County in Griffin 57—84.18 It was advanced and rejected in different contexts in Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430 (1964) (designation of race on ballots), and Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (miscegenation law). The same argument was rejected in Hunter v. Erickson, 393 U.S. 385, 391, 89 S.Ct. 557, 560, 21 L.Ed.2d 616 (1969), where we stated that 'although the law on its face treats Negro and white, Jew and gentile in an identical manner, the reality is that the law's impact falls on the minority. The majority needs no protection against discrimination and if it did, a referendum might be bothersome but no more than that.'
118
Here, too, the reality is that the impact of the city's act falls on the minority. Quite apart from the question whether the white citizens of Jackson have a better chance to swim than do their Negro neighbors absent city pools, there are deep and troubling effects on the racial minority that should give us all pause. As stated at the outset of this opinion, by closing the pools solely because of the order to desegregate, the city is expressing its official view that Negroes are so inferior that they are unfit to share with whites this particular type of public facility, though pools were long a feature of the city's segregated recreation program. But such an official position may not be enforced by designating certain pools for use by whites and others for the use of Negroes. Closing the pools without a colorable nondiscriminatory reason was every bit as much an official endorsement of the notion that Negroes are not equal to whites as was the use of state National Guard troops in 1957 to bar the entry of nine Negro students into Little Rock's Central High School, a public facility that was ordered desegregated in the wake of Brown. See Cooper v. Aaron, 358 U.S., at 11, 78 S.Ct., at 1406. Both types of state actions reflect implementation of the same official conclusion: Negroes cannot be permitted to associate with whites. But that notion had begun to break down as this Court struggled with the 'separate but equal' doctrine, see Brown, 347 U.S., at 491—494, 74 S.Ct., at 689—69219 and I had thought it was emphatically laid to rest in Brown itself, where we quoted with approval the finding of a district judge that:
119
"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to (retard) the educational and mental development of the negro children and to deprive them of some of the benefits they would receive in a racial(ly) integrated school system." 347 U.S., at 494, 74 S.Ct., at 691.
120
These considerations were not abandoned as Brown was applied in other contexts, and it is untenable to suggest that the closing of the swimming pools—a pronouncement that Negroes are somehow unfit to swim with whites—operates equally on Negroes and whites. Whites feel nothing but disappointment and perhaps anger at the loss of the facilities. Negroes feel that and more. They are stigmatized by official implementation of a policy that the Fourteenth Amendment condemns as illegal. And the closed pools stand as mute reminders to the community of the official view of Negro inferiority.
121
Moreover, this Court has carefully guarded the rights of Negroes to attack state-sanctioned segregation through the peaceful channels of the judicial process. This Court has recently discussed and analyzed various provisions of the Reconstruction civil rights statutes, and there is little need here to repeat anything more than the most recent observation that '(t)he approach of this Court * * * has been to 'accord (these statutes) a sweep as broad as (their) language." Griffin v. Breckenridge, 403 U.S. 88, 97, 91 S.Ct. 1790, 1796, 29 L.Ed.2d 338 (1971).20 Of course, 42 U.S.C. § 1981 specifically declares that '(a)ll persons * * * shall have the same right * * * to sue * * * as is enjoyed by white citizens. * * *' Congress has supplemented this early legislation, and this Court has commented on the importance of private plaintiffs in enforcing civil rights statutes. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401—402, 88 S.Ct. 964, 965—966, 19 L.Ed.2d 1263 (1968); see also NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). The Civil Rights Act of 1964 provided an additional avenue for a potential private plaintiff to follow. Provisions of that Act authorized the Attorney General to bring a civil suit in the name of the United States whenever he receives a signed complaint in writing from an individual that such person is being denied equal protection of the laws by being denied equal utilization of any public facilities such as those involved in the present case. 42 U.S.C. § 2000b(a). The Attorney General may bring such a suit if he believes the complaint to be meritorious and certifies that the signer of the complaint is unable, in his judgment, to initiate and maintain an appropriate private suit. Ibid. The statute further defines when the Attorney General may deem a complainant unable to initiate or maintain a private action, specifying inability to bear the expense of private litigation and the possibility that 'the institution of such litigation would jeopardize the personal safety, employment, or economic standing of such person or persons, their families, or their property.' 42 U.S.C. § 2000b(b).
122
It is evident that closing a public facility after a court has ordered its desegregation has an unfortunate impact on the minority considering initiation of further suits or filing complaints with the Attorney General. As Judge Wisdom said, '(T)he price of protest is high. Negroes * * * now know that they risk losing even segregated public facilities if they dare to protest * * * segregated public parks, segregated public libraries, or other segregated facilities. They must first decide whether they wish to risk living without the facility altogether. * * *' 419 F.2d., at 1236 (dissenting opinion). It is difficult to measure the extent of this impact, but it is surely present and surely we should not ignore it. The action of the city in this case interposes a major deterrent to seeking judicial or executive help in eliminating racial restrictions on the use of public facilities.21 As such, it is illegal under the Fourteenth Amendment. See Shapiro v. Thompson, 394 U.S. 618, 631, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600 (1969); United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138 (1968); Dombrowski v. Pfister, 380 U.S. 479, 486—487, 85 S.Ct. 1116, 1120—1122, 14 L.Ed.2d 22 (1965); see also Oregon v. Mitchell, 400 U.S. 112, 292, 91 S.Ct. 260, 348, 27 L.Ed.2d 272 (1970) (Stewart, J., concurring and dissenting).
IV
123
From what has been stated above, it is clear that the city's action in closing the pools because of opposition to the decision in Clark v. Thompson was 'an exercise of the state police power which trenches upon the constitutionally protected freedom from invidious official discrimination based on race.' McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222 (1964). As such, it 'bears a heavy burden of justification * * * and will be upheld only if it is necessary, and not merely rationally related, to the accomplishment of a permissible state policy.' Ibid.; see also Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). The city has only opposition to desegregation to offer as a justification for closing the pools, and this opposition operates both to demean the Negroes of Jackson and to deter them from exercising their constitutional and statutory rights. The record is clear that these public facilities had been maintained and would have been maintained but for one event: a court order to open them to all citizens without regard to race. I would reverse the judgment of the Court of Appeals and remand the cause for further proceedings.
124
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice WHITE join, dissenting.
125
While I am in complete agreement with the opinions of Justice DOUGLAS and WHITE, I am obliged to add a few words of my own.
126
First, the majority and concurring opinions' reliance on the 'facially equal effect upon all citizens' of the decision to discontinue all public pools is misplaced. As long ago as 1948 in Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 846, 92 L.Ed. 1161, this Court held:
127
'The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights. It is, therefore, no answer to these petitioners to say that the courts may also be induced to deny white persons rights of ownership and occupancy on grounds of race or color. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.' In short, when the officials of Jackson, Mississippi, in the circumstances of this case detailed, by Mr. Justice WHITE denied a single Negro child the opportunity to go swimming simply because he is a Negro, rights guaranteed to that child by the Fourteenth Amendment were lost. The fact that the color of his skin is used to prevent others from swimming in public pools is irrelevant.
128
Second, since Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), public schools and public recreational facilities such as swimming pools have received identical Fourteenth Amendment protection. Indeed, exactly one week after Brown I this Court remanded three cases in the same per curiam: Florida ex rel. Hawkins v. Board of Control of Florida; Tureaud v. Board of Supervisors; and Muir v. Louisville Park Theatrical Assn., 347 U.S. 971, 74 S.Ct. 783, 784, 98 L.Ed. 1112. The first two involved university education and the latter involved recreational facilities.
129
Even before Brown II, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), it was recognized as obvious that 'racial segregation in recreational activities can no longer be sustained as a proper exercise of the police power of the State; for if that power cannot be invoked to sustain racial segregation in the schools, where attendance is compulsory and racial friction may be apprehended from the enforced commingling of the races, it cannot be sustained with respect to public beach and bathhouse facilities, the use of which is entirely optional.' Dawson v. Mayor and City Council of Baltimore, 220 F.2d 386, 387 (C.A. 4), aff'd per curiam, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774 (1955). See also Department of Conservation and Development, Division of Parks, etc., Va. v. Tate, 231 F.2d 615 (C.A.4), cert. denied, 352 U.S. 838, 77 S.Ct. 58, 1 L.Ed.2d 56 (1956).
130
By effectively removing publicly owned swimming pools from the protection of the Fourteenth Amendment—at least if the pools are outside school buildings—the majority and concurring opinions turn the clock back 17 years. After losing a hard fought legal battle to maintain segregation in public facilities, the Jackson, Mississippi, authorities now seek to pick and choose* which of the existing facilities will be kept open. Their choice is rationalized on the basis of economic need and is even more transparent than putting the matter to a referendum vote.
131
Finally, I cannot conceive why the writers of the concurring opinions believe that the city is 'locked in' and must operate the pools no matter what the economic consequences. Certainly, I am not bound by any admission of an attorney at oral argument as to his version of the law. Equity courts have always had continuing supervisory powers over their decrees; and if a proper basis for closing the facilities—other than a conclusory statement about the projected human and thus economic consequences of desegregation could be shown, swimming pools, as I imagine schools or even golf courses, could be closed.
132
I dissent.
1
Clark v. Thompson, 206 F.Supp. 539 (S.D.Miss.1962).
2
313 F.2d 637 (CA 5), cert. denied, 375 U.S. 951, 84 S.Ct. 440, 11 L.Ed.2d 312 (1963).
3
The court's opinion is not officially reported.
4
419 F.2d 1222 (CA 5 1969).
5
My Brother WHITE's dissent suggests that the pool closing operates unequally on white and blacks because, 'The action of the city in this case interposes a major deterrent to seeking judicial or executive help in eliminating racial restrictions on the use of public facilities.' Post, at 269. It is difficult to see the force of this argument since Jackson has desegregated its public parks, auditoriums, golf course, city zoo, and the record indicates it now maintains no segregated public facilities.
6
Bush v. Orleans Parish School Board, 187 F.Supp. 42 (E.D.La.1960), aff'd, 365 U.S. 569, 81 S.Ct. 754, 5 L.Ed.2d 806 (1961), does not lead us to reverse the judgment here. In Bush we wrote no opinion but merely affirmed a lower federal court judgment that held unconstitutional certain laws designed to perpetuate segregation in the Louisiana public schools. One law held unconstitutional by the lower court empowered the State Governor to close any school ordered to integrate; another empowered him to close all state schools if one were integrated. Of course that case did not involve swimming pools but rather public schools, an enterprise we have described as 'perhaps the most important function of state and local governments.' Brown v. Board of Education, supra, 347 U.S., at 493, 74 S.Ct., at 691. More important, the laws struck down in Bush were part of an elaborate package of legislation through which Louisiana sought to maintain public education on a segregated basis, not to end public education. See also Bush v. Orleans Parish School Board, 188 F.Supp. 916 (E.D.La.1960). Of course there was no serious problem of probing the motives of a legislature in Bush because most of the Louisiana statutes explicitly stated they were designed to forestall integrated schools. 187 F.Supp., at 45.
7
Tr. of Oral Arg. 31—32.
8
There is no question before us here whether the black citizens of Jackson may be entitled to utilize the swimming facilities of Leavell Woods pool. Nothing on the present record indicates state involvement in the running of that pool. The YMCA, which apparently now operates the pool, was not joined as a party and thus, of course, no judgment could be entered against it.
*
'Q. Mr. Rosen, if you were to prevail here, would the city of Jackson be locked in to operating the pools irrespective of the economic consequences of that operation?
'A. If the question is forever. If it was purely an economic problem, having nothing to do with race, or opposition to integration, they could handle that problem the way any community handles that problem, if it is purely an economic decision. But if it becomes a consideration of race, which creates the economic difficulties, then it seems to me that this Court in numerous decisions has answered that question. It answered it in Watson, it answered it in Brown, and it answered it in Green.
'Q. Well, this is in the premise of my question, for you to prevail here, this racial overtone, I will assume, you must concede must be present. Now suppose you prevail, and suppose they lose economically year after year by increasing amounts. Mr. question is, are they locked in forever?
'A. If the question is, are they locked in forever because of racial problems which cause a rise in economic difficulties in operating the pool, my answer is that they would be locked in.' Tr. of Oral Arg. 43—44.
1
James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678, undertook to distinguish Hunter on the ground that the California referendum on low-rent housing which submitted the issue to majority vote was 'neutral on its face' and not 'aimed at a racial minority.' The regime of Hunter, therefore, remains undisturbed. Yet there was no answer to the claim that a referendum solely for housing for the poor violates the Equal Protection Clause. However that may be, in the instant case the target was not the poor, but a racial minority.
2
And see Comment, Ninth Amendment Vindication of Unenumerated Fundamental Rights, 42 Temple L.Q. 46, 53—56 (1968); Bertelsman, The Ninth Amendment and Due Process of Law—Toward a Viable Theory of Unenumerated Rights, 37 U.Cin.L.Rev. 777, 787 et seq. (1968); Forkosch, Does 'Secure the Blessings of Liberty' Mandate Governmental Action?, 1 Ariz.St.L.J. 17, 32 (1970).
3
'Nor am I turning somersaults with history in arguing that the Ninth Amendment is relevant in a case dealing with a State's infringement of a fundamental right. While the Ninth Amendment—and indeed the entire Bill of Rights—originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the 'liberty' protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments.' 381 U.S., at 493, 85 S.Ct., at 381.
4
Franklin, The Relation of the Fifth, Ninth and Fourteenth Amendments to the Third Constitution, 4 How.L.J. 170, 180 (1958).
5
While the Equal Protection Clause protects individuals against state action, 'the involvement of the State' need not be 'either exclusive or direct.' United States v. Guest, 383 U.S. 745, 755, 86 S.Ct. 1170, 1176, 16 L.Ed.2d 239. 'In a variety of situations the Court has found state action of a nature sufficient to create rights under the Equal Protection Clause even though the participation of the State was peripheral, or its action was only one of several co-operative forces leading to the constitutional violation.' Id., at 755—756, 86 S.Ct., at 1177.
1
See Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) (segregated restaurant operated under lease in municipal facility).
2
See e.g., Boynton v. Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206 (1960) (application of Interstate Commerce Act); Burton, supra, n. 1; Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762 (1962) (public restaurant in municipal airport); Johnson v. Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195 (1963) (courtrooms); Brown v. Louisiana, 383 U.S. 131, 139, 86 S.Ct. 719, 722, 15 L.Ed.2d 637 (1966) (libraries); City of St. Petersburg v. Alsup, 238 F.2d 830 (CA5 1956) (beach and swimming pool); Department of Conservation & Development v. Tate, 231 F.2d 615 (CA4), cert. denied, 352 U.S. 838, 77 S.Ct. 58, 1 L.Ed.2d 56 (1956) (state park); Willie v. Harris County, 202 F.Supp. 549 (S.D.Tex.1962) (county park); Shuttlesworth v. Gaylord, 202 F.Supp. 59 (N.D.Ala.1961), aff'd sub nom. Hanes v. Shuttlesworth, 310 F.2d 303 (CA5 1962) (parks, tennis courts, swimming pools, zoo, golf courses, baseball parks, museum, auditorium); Moorhead v. City of Ft. Lauderdale, 152 F.Supp. 131 (S.D.Fla.), aff'd, 248 F.2d 544 (CA5 1957) (golf course); Ward v. City of Miami, 151 F.Supp. 593 (S.D.Fla.1957) (golf course); Holley v. City of Portsmouth, 150 F.Supp. 6 (E.D.Va.1957) (golf course); Fayson v. Beard, 134 F.Supp. 379 (E.D.Tex.1955) (city parks).
3
See also Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).
4
See Thomas v. Mississippi, 380 U.S. 524, 85 S.Ct. 1327, 14 L.Ed.2d 265 (1965); NAACP v. Thompson, 357 F.2d 831 (CA5 1966); Bailey v. Patterson, 199 F.Supp. 595 (S.D.Miss.1961), vacated, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); United States v. City of Jackson, 206 F.Supp. 45 (S.D.Miss.1962), rev'd, 318 F.2d 1, 5—6 (CA5 1963) (common carrier terminals), where the Court of Appeals stated:
'We again take judicial notice that the State of Mississippi has a steel-hard, inflexible, undeviating official policy of segregation. The policy is stated in its laws. It is rooted in custom. The segregation signs at the terminals in Jackson carry out that policy. The Jackson police add muscle, bone, and sinew to the signs.' (Footnotes omitted.)
See also Singleton v. Jackson Municipal Separate School Dist., 348 F.2d 729 (CA5 1965); Singleton v. Jackson Municipal Separate School Dist., 355 F.2d 865 (CA5 1966); Singleton v. Jackson Municipal Separate School Dist., 419 F.2d 1211 (CA5 1969) rev'd in part sub nom. Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970); Singleton v. Jackson Municipal Separate School Dist., 426 F.2d 1364 (CA5), modified, 430 F.2d 368 (CA5 1970); Singleton v. Jackson Municipal Separate School Dist., 432 F.2d 927 (CA5 1970).
5
In an affidavit filed August 18, 1965, in the District Court in the present case, Mayor Thompson stated, 'I believe that the welfare of both races would have best been served if (the custom that members of each race would use the recreational facilities near their homes) had continued.'
6
But see Brown v. Board of Education, 347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873 (1954); Dawson v. Mayor and City Council of Baltimore City, 220 F.2d 386 (CA4), aff'd, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774 (1955); Holmes v. City of Atlanta, 223 F.2d 93, 94—95 (CA5), rev'd, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776 (1955); Browder v. Gayle, 142 F.Supp. 707, 714 (M.D.Ala.), aff'd, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (1956); New Orleans City Park Improvement Assn. v. Detiege, 252 F.2d 122, 123 (CA5), aff'd, 358 U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46 (1958); see also Carter v. Jury Comm. of Greene County, 396 U.S. 320, 329—330, 90 S.Ct. 518, 523—524, 24 L.Ed.2d 549 (1970).
7
But see cases cited n. 6, supra.
8
See Respondents' Brief 3; Affidavit of Allen C. Thompson, App. 21; Affidavit of George T. Kurts, App. 18.
9
At the time Clark v. Thompson was decided, the population of Jackson consisted of approximately 100,000 whites and 50,000 Negroes. Despite this 2:1 ratio in population, there were four swimming facilities for whites and only one for Negroes.
10
I agree fully with the majority that if a city or State becomes involved in any way in the operation of facilities on a segregated basis by private parties, the Fourteenth Amendment is violated. See Burton v. Wilmington Parking Authority, supra, n. 1; Hampton v. City of Jacksonville, 304 F.2d 320 (CA5), cert. denied sub nom. Ghioto v. Hampton, 371 U.S. 911, 83 S.Ct. 256, 9 L.Ed.2d 170 (1962); Smith v. Young Men's Christian Ass'n of Montgomery, 316 F.Supp. 899 (M.D.Ala.1970) (city agreement with Y.M.C.A. to coordinate city and Y.M.C.A. recreational activities to eliminate duplication of services had as its primary purpose and effect encouragement with YMCA to coordinate city and YMCA recreational activities to and programs); Chinn v. Canton, Civ. No. 3764 (S.D.Miss., Nov. 18, 1965) (unreported) (town leased municipal pool to private all-white association; pool ordered desegregated).
11
During the proceedings in this case, it was developed that the benches in the Livingston Park Zoo were removed in 1961, and that the public rest rooms in the Municipal Court Building were closed at some point in time. See Palmer v. Thompson, 419 F.2d 1222, 1231 (CA5 1969) (dissenting opinion); affidavit of Allen C. Thompson, App. 21.
12
The Mayor's affidavit makes no mention of 'minor water difficulty.'
13
The Parks Director's affidavit makes no mention of 'minor water difficulty.'
14
At oral argument, counsel for the city so conceded. Tr. of Oral Arg. 28—29.
15
In its brief, the city argues: 'This Court will take judicial knowledge of the fact that there still exists a serious danger of violent clashes between young people of different racial groups, whether stemming from acts of or promoted by one group or the other.' Respondents' Brief 10. But this is, as noted in the text, contrary to the record developed in the courts below. Moreover, at oral argument counsel for the respondents stated that to his knowledge there has been no interracial violence in Jackson since the 1961 Freedom Rider incidents. See Tr. of Oral Arg. 36.
16
I cannot agree with the majority's attempt to discount the significance of Bush. First, the action taken in Bush in no sense depended on our conclusion in Brown that the provision of public education was an especially important state function. Had that been the case, and had recreational facilities somehow been considered less essential, the Court should have accepted the argument made by some States that Brown not be extended to recreational facilities. This we did not do. See Dawson, supra, and Holmes, supra. Similarly, if such a distinction was at all tenable, the extension of the 'all deliberate speed' approach to desegregating public facilities might have been appropriate. But this argument was also emphatically rejected. See Watson, supra, 373 U.S., at 529—530, 83 S.Ct., at 1316—1317. When a public agency furnishes a service—regardless of whether or not it is an 'essential' one—it must act in a nondiscriminatory manner with regard to that service.
Second, even accepting the majority's characterization of public schools as 'important,' there is much in our previous decisions to contradict its implication that providing swimming pools and other public recreational facilities is not a significant state function. In Evans v. Newton, 382 U.S. 296, 302, 86 S.Ct. 486, 490, 15 L.Ed.2d 373 (1966), the Court stated: 'A park * * * is more like a fire department or police department that traditionally serves the community. Mass recreation through the use of parks is plainly in the public domain, Watson v. Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529; and state courts that aid private parties to perform that public function on a segregated basis implicate the State in conduct proscribed by the Fourteenth Amendment.'
See also Evans v. Abney, 396 U.S. 435, 443—444, 445, 90 S.Ct. 628, 633, 24 L.Ed.2d 634 (1970), where Mr. Justice Black, writing for the Court, stated:
'When a city park is destroyed because the Constitution requires it to be integrated, there is reason for everyone to be disheartened. We agree with petitioners that in such a case it is not enough to find that the state court's result was reached through the application of established principles of state law. No state law or act can prevail in the face of contrary federal law, and the federal courts must search out the fact and truth of any proceeding or transaction to determine if the Constitution has been violated.
'A second argument for petitioners stresses the similarities be-
tween this case and the case in which a city holds an absolute fee simple title to a public park and then closes that park of its own accord solely to avoid the effect of a prior court order directing that the park be integrated as the Fourteenth Amendment commands. Yet, assuming arguendo that the closing of the park would in those circumstances violate the Equal Protection Clause, that case would be clearly distinguishable from the case at bar because there it is the State and not a private party which is injecting the racially discriminatory motivation. In the case at bar there is not the slightest indication that any of the Georgia judges involved were motivated by racial animus or discriminatory intent of any sort in construing and enforcing Senator Bacon's will.'
This was the inquiry made in Bush, and it led to striking down the statutes in question. We affirmed that ruling, and the record here is no less clear. And as the majority concedes, ante, at 221, n. 6, surely it is not irrelevant in considering the context in which Jackson's pools were closed, that a statute of the State of Mississippi, in effect since 1956, provides:
'That the entire executive branch of the government of the State of Mississippi, and of its subdivisions, and all persons responsible thereto, including the governor, the lieutenant governor, the heads of state departments, sheriffs, boards of supervisors, constables, mayors, boards of aldermen and other governing officials of municipalities by whatever name known * * * whether specifically named herein or not * * * shall give full force and effect in the performance of their official and political duties, to the Resolution of Interposition * * * and all of said members of the executive branch be and they are hereby * * * directed and required to prohibit, by any lawful, peaceful and constitutional means, the implementation of or the compliance with the Integration Decisions of the United States Supreme Court of May 17, 1954 (347 U.S. 483, 74 S.Ct 686, 98 LEd 873), and of May 31, 1955 (349 US 294, 75 S.Ct 753, 99 LEd 1083), and to prohibit by any lawful, peaceful, and constitutional means, the causing of a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly in this state, by any branch of the federal government, any person employed by the federal government, any commission, board or agency of the federal government, or any subdivision of the federal government, and to prohibit, by any lawful, peaceful and constitutional means, the implementation of any orders, rules or regulations of any board, commission or agency of the federal government, based on the supposed authority of said Integration Decisions, to cause a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly in this state.' Miss.Code Ann. § 4065.3 (1942); see United States v. City of Jackson, 318 F.2d 1, 5 6 (CA 5 1963) (judicial notice taken of this statute).
17
See also Green, supra, n. 3.
18
In their briefs in Griffin, No. 592, O.T. 1963, the respondents relied on previous lower court cases that have permitted closing public recreational facilities after decrees had been entered ordering that they be desegregated. See Brief of Respondent Board of Supervisors in Griffin 65—66. See also Brief of Respondents State Board of Education and Superintendent of Public Instruction in Griffin 53—63. Griffin rejected the relevance of these decisions; however, the present respondents rely on them here and the majority inplicitly embrances them.
19
The Court in Brown noted that in Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950), the Court had held that a segregated law school for Negroes could not provide them equal educational opportunities, relying in large part on 'those qualities which are incapable of objective measurement but which make for greatness in a law school.' 339 U.S., at 634, 70 S.Ct., at 850. The Court in Brown also relied on McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149 (1950), in which it was required that a Negro student in a white graduate school be treated like all other students in order to avoid impairing 'his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.' 339 U.S., at 641, 70 S.Ct., at 853.
20
Quoting United States v. Price, 383 U.S. 787, 801, 86 S.Ct. 1152, 1160, 16 L.Ed.2d 267 (1966); see also Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968).
21
Nor should we be lulled by the suggestion that all of Jackson's public facilities have been integrated. As the majority correctly states, '(i)f the time ever comes when Jackson attempts to run segregated public pools either directly or indirectly, or participates in a subterfuge whereby pools are nominally run by 'private parties' but actually by the city, relief will be available in the federal courts.' This is but a partial summary of the litigation that may lie ahead as some cities attempt to avoid the requirement that public facilities be operated on an integrated basis. It demonstrates that it is surely wrong to suggest that simply because a city presently operates no segregated facilities there is nothing that will need to be done by way of litigation to enforce the Fourteenth Amendment in the future. Assume for instance that it can be shown that a city is providing some form of covert assistance to a 'private' organization such as the YMCA to run swimming pools on a segregated basis, one for the whites and one for the Negroes; another example would be a 'desegregated' public school offering segregated classes, perhaps including physical education and swimming. Although we are all agreed that such conduct is illegal, the majority apparently believes that allowing a city to close public facilities solely because of opposition to desegregation would exert no effect whatsoever on the deliberations of Negro plaintiffs considering a court challenge to these newer, more subtle discriminatory practices. See n. 10, supra. To me, it is clear that the majority's edict places a powerful weapon at the disposal of public officials hostile to fulfilling the promise of the Fourteenth Amendment. Threat of suit by Negroes in either case hypothesized above is likely to be countered by a threat, and perhaps action, to close the covertly run segregated pools—in school or outside.
*
The economic loss incident to the operation of public swimming pools could not be much more than that incident to maintaining public golf courses that charge green fees of $0.75 to $1.25, admittedly the lowest in the country.
| 12
|
403 U.S. 528
91 S.Ct. 1976
29 L.Ed.2d 647
Joseph McKEIVER and Edward Terry, Appellants,v.State of PENNSYLVANIA. In re Barbara BURRUS et al., Petitioners.
Nos. 322, 128.
Argued Dec. 9 and 10, 1970.
Decided June 21, 1971.
Syllabus
The requests of appellants in No. 322 for a jury trial were denied, and they were adjudged juvenile delinquents under Pennsylvania law. The State Supreme Court, while recognizing the applicability to juveniles of certain due process procedural safeguards, held that there is no constitutional right to a jury trial in juvenile court. Appellants argue for a right to a jury trial because they were tried in proceedings 'substantially similar to a criminal trial,' and note that the press is generally present at the trial and that members of the public also enter the courtroom. Petitioners in No. 128 were adjudged juvenile delinquents in North Carolina, where their jury trial requests were denied and in proceedings where the general public was excluded. Held: A trial by jury is not constitutionally required in the adjudicative phase of a state juvenile court delinquency proceeding. Pp. 540—551, 553—556.
438 Pa. 339, 265 A.2d 350 and 275 N.C. 517, 169 S.E.2d 879, affirmed.
Mr. Justice BLACKMUN, joined by THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice WHITE, concluded that:
1
1. The applicable due process standard in juvenile proceedings is fundamental fairness, as developed by In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, which emphasized factfinding procedures, but in our legal system the jury is not a necessary component of accurate factfinding. P. 543.
2
2. Despite disappointments, failures, and shortcomings in the juvenile court procedure, a jury trial is not constitutionally required in a juvenile court's adjudicative stage. Pp. 545—550.
3
(a) The Court has not heretofore ruled that all rights constitutionally assured to an adult accused are to be imposed in a juvenile proceeding. P. 545.
4
(b) Compelling a jury trial might remake the proceeding into a fully adversary process and effectively end the idealistic prospect of an intimate informal protective proceeding. P. 545.
5
(c) Imposing a jury trial on the juvenile court system would not remedy the system's defects and would not greatly the factfinding function. P. 547.
6
(d) The States should be free to experiment to achieve the high promise of the juvenile court concept, and they may install a jury system; or a juvenile court judge may use an advisory jury in a particular case. P. 547.
7
(e) Many States by statute or judicial decision deny a juvenile a right to jury trial, and the great majority that have faced that issue since Gault, supra, and Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, have concluded that the considerations involved in those cases do not compel trial by jury in juvenile court. Pp. 548—549.
8
(f) Jury trial would entail delay, formality, and clamor of the adversary system, and possibly a public trial. P. 550.
9
(g) Equating the adjudicative phase of the juvenile proceeding with a criminal trial ignores the aspects of fairness, concern, sympathy, and paternal attention inherent in the juvenile court system. P. 550.
Mr. Justice BRENNAN concluded that:
10
Due process in juvenile delinquency proceedings, which are not 'criminal prosecutions,' does not require the States to provide jury trials on demand so long as some other aspect of the process adequately protects the interests that Sixth Amendment jury trials are intended to serve. In the juvenile context, those interests may be adequately protected by allowing accused individuals to bring the community's attention to bear upon their trials. Since Pennsylvania has no statutory bar to public juvenile trials, and since no claim is made that members of the public were excluded over appellants' objections, the judgment in No. 322 should be affirmed. Pp. 553—556.
11
Mr. Justice HARLAN concurred in the judgments in these cases on the ground that criminal jury trials are not constitutionally required of the States, either by the Sixth Amendment or by due process. P. 557.
No. 322:
12
Daniel E. Farmer, Philadelphia, Pa., for appellants.
13
Arlen Specter, Philadelphia, Pa., for appellee.
14
Michael Meltsner, New York City, for petitioners.
15
Robert Morgan, Raleigh, N.C., for respondent.
16
Alfred L. Scanlan, Washington, D.C., for National Council of Juvenile Court Judges, amicus curiae.
17
[Amici curiae information intentionally omitted.]
18
Mr. Justice BLACKMUN announced the judgments of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice WHITE join.
19
These cases present the narrow but precise issue whether the Due Process Clause of the Fourteenth Amendment assures the right to trial by jury in the adjudicative phase of a state juvenile court delinquency proceeding.
20
* The issue arises understandably, for the Court in a series of cases already has emphasized due process factors protective of the juvenile:
21
1. Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), concerned the admissibility of a confession taken from a 15-year-old boy on trial for first-degree murder. It was held that upon the facts there developed, the Due Process Clause barred the use of the confession. Mr. Justice Douglas, in an opinion in which three other Justices joined, said, 'Neither man nor child can be allowed to stand condemned by methods which flout constitutional requirements of due process of law.' 332 U.S., at 601, 68 S.Ct., at 304.
22
2. Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962) where a 14-year-old was on trial, is to the same effect.
23
3. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), concerned a 16-year-old charged with housebreaking, robbery, and rape in the District of Columbia. The issue was the propriety of the juvenile court's waiver of jurisdiction 'after full investigation,' as permitted by the applicable statute. It was emphasized that the latitude the court possessed within which to determine whether it should retain or waive jurisdiction 'assumes procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness, as well as compliance with the statutory requirement of a 'full investigation." 383 U.S., at 553, 86 S.Ct., at 1053.
24
4. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), concerned a 15-year-old, already on probation, committed in Arizona as a delinquent after being apprehended upon a complaint of lewd remarks by telephone. Mr. Justice Fortas, in writing for the Court, reviewed the cases just cited and observed.
25
'Accordingly, while these cases relate only to restricted aspects of the subject, they unmistakably indicate that, whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.' 387 U.S., at 13, 87 S.Ct., at 1436.
26
The Court focused on 'the proceedings by which a determination is made as to whether a juvenile is a 'delinquent' as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution' and, as to this, said that 'there appears to be little current dissent from the proposition that the Due Process Clause has a role to play.' Ibid. Kent was adhered to: 'We reiterate this view, here in connection with a juvenile court adjudication of 'delinquency,' as a requirement which is part of the Due Process Clause of the Fourteenth Amendment of our Constitution.' Id., at 30—31, 87 S.Ct., at 1445. Due process, in that proceeding, was held to embrace adequate written notice; advice as to the right to counsel, retained or appointed; confrontation; and cross-examination. The privilege against self-incrimination was also held available to the juvenile. The Court refrained from deciding whether a State must provide appellate review in juvenile cases or a transcript or recording of the hearings.
27
5. DeBacker v. Brainard, 396 U.S. 28, 90 S.Ct. 163, 24 L.Ed.2d 148 (1969), presented, by state habeas corpus, a challenge to a Nebraska statute providing that juvenile court hearings 'shall be conducted by the judge without a jury in an informal manner.' However, because that appellant's hearing had antedated the decisions in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), and because Duncan and Bloom had been given only prospective application by DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968), DeBacker's case was deemed an inappropriate one for resolution of the jury trial issue. His appeal was therefore dismissed. Mr. Justice Black and Mr. Justice Douglas, in separate dissents, took the position that a juvenile is entitled to a jury trial at the adjudicative stage. Mr. Justice Black described this as 'a right which is surely one of the fundamental aspects of criminal justice in the English-speaking world,' 396 U.S., at 34, 90 S.Ct., at 166 and Mr. Justice Douglas described it as a right required by the Sixth and Fourteenth Amendments 'where the delinquency charged is an offense that, if the person were an adult, would be a crime triable by jury.' 396 U.S., at 35, 90 S.Ct., at 167.
28
6. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), concerned a 12-year-old charged with delinquency for having taken money from a woman's purse. The Court held that 'the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged,' 397 U.S., at 364, 90 S.Ct., at 1073, and then went on to hold, at 368, 90 S.Ct., at 1075, that this standard was applicable, too, 'during the adjudicatory stage of a delinquency proceeding.'
29
From these six cases—Haley, Gallegos, kent, Gault, DeBacker, and Winship—it is apparent that:
30
1. Some of the constitutional requirements attendant upon the state criminal trial have equal application to that part of the state juvenile proceeding that is adjudicative in nature. Among these are the rights to appropriate notice, to counsel, to confrontation and to cross-examination, and the privilege against self-incrimination. Included, also, is the standard of proof beyond a reasonable doubt.
31
2. The Court, however, has not yet said that all rights constitutionally assured to an adult accused of crime also are to be enforced or made available to the juvenile in his delinquency proceeding. Indeed, the Court specifically has refrained from going that far:
32
'We do not mean by this to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.' Kent, 383 U.S., at 562, 86 S.Ct., at 1057; Gault, 387 U.S., at 30, 87 S.Ct., at 1445.
33
3. The Court, although recognizing the high hopes and aspirations of Judge Julian Mack, the leaders of the Jane Addams School1 and the other supporters of the juvenile court concept, has also noted the disappointments of the system's performance and experience and the resulting widespread disaffection. Kent, 383 U.S., at 555—556, 86 S.Ct., at 1054—1055; Gault, 387 U.S., at 17 19, 87 S.Ct., at 1438—1439. There have been, at one and the same time, both an appreciation for the juvenile court judge who is devoted, sympathetic, and conscientious, and a disturbed concern about the judge who is untrained and less than fully imbued with an understanding approach to the complex problems of childhood and adolescence. There has been praise for the system and its purposes, and there has been alarm over its defects.
34
4. The Court has insisted that these successive decisions do not spell the doom of the juvenile court system or even deprive it of its 'informality, flexibility, or speed.' Winship, 397 U.S., at 366, 90 S.Ct., at 1074. On the other hand, a concern precisely to the opposite effect was expressed by two dissenters in Winship. Id., at 375—376, 90 S.Ct., at 1078—1079.
II
35
With this substantial background already developed, we turn to the facts of the present cases:
36
No. 322. Joseph McKeiver, then age 16, in May 1968 was charged with robbery, larceny, and receiving stolen goods (felonies under Pennsylvania law, Pa.Stat.Ann., Tit. 18, §§ 4704, 4807, and 4817 (1963)) as acts of juvenile delinquency. At the time of the adjudication hearing he was represented by counsel.2 His request for a jury trial was denied and his case was heard by Judge Theodore S. Gutowicz of the Court of Common Pleas, Family Division, Juvenile Branch, of Philadelphia County, Pennsylvania. McKeiver was adjudged a delinquent upon findings that he had violated a law of the Commonwealth. Pa.Stat.Ann., Tit. 11, § 243(4)(a) (1965). On appeal, the Superior Court affirmed without opinion. In re McKeiver, 215 Pa.Super. 760, 255 A.2d 921 (1969).
37
Edward Terry, then age 15, in January 1969 was charged with assault and battery on a police officer and conspiracy (misdemeanors under Pennsylvania law, Pa.Stat.Ann., Tit. 18, §§ 4708 and 4302 (1963)) as acts of juvenile delinquency. His counsel's request for a jury trial was denied and his case was heard by Judge Joseph C. Bruno of the same Juvenile Branch of the Court of Common Pleas of Philadelphia County. Terry was adjudged a delinquent on the charges. This followed an adjudication and commitment in the preceding week for an assault on a teacher. He was committed, as he had been on the earlier charge, to the Youth Development Center at Cornwells Heights. On appeal, the Superior Court affirmed without opinion. In re Terry, 215 Pa.Super. 762, 255 A.2d 922 (1969).
38
The Supreme Court of Pennsylvania granted leave to appeal in both cases and consolidated them. The single question considered, as phrased by the court, was 'whether there is a constitutional right to a jury trial in juvenile court.' The answer, one justice dissenting, was in the negative. In re Terry, 438 Pa. 339, 265 A.2d 350 (1970). We noted probable jurisdiction. 399 U.S. 925, 90 S.Ct. 2271, 26 L.Ed.2d 791 (1970).
39
The details of the McKeiver and Terry offenses are set forth in Justice Roberts' opinion for the Pennsylvania court, 438 Pa., at 341—342, nn. 1 and 2, 265 A.2d, at 351 nn. 1 and 2, and need not be repeated at any length here. It suffices to say that McKeiver's offense was his participating with 20 or 30 youths who pursued three young teenagers and took 25 cents from them; that McKeiver never before had been arrested and had a record of gainful employment; that the testimony of two of the victims was described by the court as somewhat inconsistent and as 'weak'; and that Terry's offense consisted of hitting a police officer with his fists and with a stick when the officer broke up a boys' fight Terry and others were watching.
40
No. 128. Barbara Burrus and approximately 45 other black children, ranging in age from 11 to 15 years,3 were the subjects of juvenile court summonses issued in Hyde County, North Carolina, in January 1969.
41
The charges arose out of a series of demonstrations in the county in late 1968 by black adults and children protesting school assignments and a school consolidation plan. Petitions were filed by North Carolina state highway patrolmen. Except for one relating to James Lambert Howard, the petitions charged the respective juveniles with wilfully impeding traffic. The charge against Howard was that he wilfully made riotous noise and was disorderly in the O. A. Peay School in Swan Quarter; interrupted and disturbed the school during its regular sessions; and defaced school furniture. The acts so charged are misdemeanors under North Carolina law. N.C.Gen.Stat. §§ 20—174.1 (1965 and Supp. 1969), 14—132(a), 14—273 (1969).
42
The several cases were consolidated into groups for hearing before District Judge Hallett S. Ward, sitting as a juvenile court. The same lawyer appeared for all the juveniles. Over counsel's objection, made in all except two of the cases, the general public was excluded. A request for a jury trial in each case was denied.
43
The evidence as to the juveniles other than Howard consisted solely of testimony of highway patrolmen. No juvenile took the stand or offered any witness. The testimony was to the effect that on various occasions the juveniles and adults were observed walking along Highway 64 singing, shouting, clapping, and playing basketball. As a result, there was interference with traffic. The marchers were asked to leave the paved portion of the highway and they were warned that they were committing a statutory offense. They either refused or left the roadway and immediately returned. The juveniles and participating adults were taken into custody. Juvenile petitions were then filed with respect to those under the age of 16.
44
The evidence as to Howard was that on the morning of December 5, he was in the office of the principal of the O. A. Peay School with 15 other persons while school was in session and was moving furniture around; that the office was in disarray; that as a result the school closed before noon; and that neither he nor any of the others was a student at the school or authorized to enter the principal's office.
45
In each case the court found that the juvenile had committed 'an act for which an adult may be punished by law.' A custody order was entered declaring the juvenile a delinquent 'in need of more suitable guardianship' and committing him to the custody of the County Department of Public Welfare for placement in a suitable institution 'until such time as the Board of Juvenile Correction or the Superintendent of said institution may determine, not inconsistent with the laws of this State.' The court, however, suspended these commitments and placed each juvenile on probation for either one or two years conditioned upon his violating none of the State's laws, upon his reporting monthly to the County Department of Welfare, upon his being home by 11 p.m. each evening, and upon his attending a school approved by the Welfare Director. None of the juveniles has been confined on these charges.
46
On appeal, the cases were consolidated into two groups. The North Carolina Court of Appeals affirmed. In re Burrus, 4 N.C.App. 523, 167 S.E.2d 454 (1969); In re Shelton, 5 N.C.App. 487, 168 S.E.2d 695 (1969). In its turn the Supreme Court of North Carolina deleted that portion of the order in each case relating to commitment, but otherwise affirmed. In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969). Two justices dissented without opinion. We granted certiorari. 397 U.S. 1036, 90 S.Ct. 1379, 25 L.Ed.2d 647 (1970).
III
47
It is instructive to review, as an illustration, the substance of Justice Roberts' opinion for the Pennsylvania court. He observes, 438 Pa., at 343, 265 A.2d, at 352, that '(f)or over sixty-five years the Supreme Court gave no consideration at all to the constitutional problems involved in the juvenile court area'; that Gault 'is somewhat of a paradox, being both broad and narrow at the same time'; that it 'is broad in that it evidences a fundamental and far-reaching disillusionment with the anticipated benefits of the juvenile court system'; that it is narrow because the court enumerated four due process rights which it held applicable in juvenile proceedings, but declined to rule on two other claimed rights, id., at 344—345, 265 A.2d at 353; that as a consequence the Pennsylvania court was 'confronted with a sweeping rationale and a carefully tailored holding,' id., at 345, 265 A.2d, at 353; that the procedural safeguards 'Gault specifically made applicable to juvenile courts have already caused a significant 'constitutional domestication' of juvenile court proceedings,' Id., at 346, 265 A.2d, at 354; that those safeguards and other rights, including the reasonable-doubt standard established by Winship, 'insure that the juvenile court will operate in an atmosphere which is orderly enough to impress the juvenile with the gravity of the situation and the impartiality of the tribunal and at the same time informal enough to permit the benefits of the juvenile system to operate' (footnote omitted), id., at 347, 265 A.2d, at 354; that the 'proper inquiry, then, is whether the right to a trial by jury is 'fundamental' within the meaning of Duncan, in the context of a juvenile court which operates with all of the above constitutional safeguards,' id., at 348, 265 A.2d, at 354; and that his court's inquiry turned 'upon whether there are elements in the juvenile process which render the right to a trial by jury less essential to the protection of an accused's rights in the juvenile system than in the normal criminal process.' Ibid.
48
Justice Roberts then concluded that such factors do inhere in the Pennsylvania juvenile system: (1) Although realizing that 'faith in the quality of the juvenile bench is not an entirely satisfactory substitute for due process,' id., at 348, 265 A.2d, at 355, the judges in the juvenile courts 'to take a different view of their role than that taken by their counterparts in the criminal courts.' Id., at 348, 265 A.2d, at 354—355. (2) While one regrets its inadequacies, 'the juvenile system has available and utilizes much more fully various diagnostic and rehabilitative services' that are 'far superior to those available in the regular criminal process.' Id., at 348— 349, 265 A.2d, at 355. (3) Although conceding that the post-adjudication process 'has in many respects fallen far short of its goals, and its reality is far harsher than its theory,' the end result of a declaration of delinquency 'is significantly different from and less onerous than a finding of criminal guilt' and 'we are not yet convinced that the current practices do not contain the seeds from which a truly appropriate system can be brought forth.' (4) Finally, 'of all the possible due process rights which could be applied in the juvenile courts, the right to trial by jury is the one which would most likely be disruptive of the unique nature of the juvenile process.' It is the jury trial that 'would probably require substantial alteration of the traditional practices.' The other procedural rights held applicable to the juvenile process 'will give the juveniles sufficient protection' and the addition of the trial by jury 'might well destroy the traditional character of juvenile proceedings.' Id., at 349—350, 265 A.2d, at 355.
49
The court concluded, id., at 350, 265 A.2d, at 356, that it was confident 'that a properly structured and fairly administered juvenile court system can serve our present societal needs without infringing on individual freedoms.'
IV
50
The right to an impartial jury '(i)n all criminal prosecutions' under federal law is guaranteed by the Sixth Amendment. Through the Fourteenth Amendment that requirement has now been imposed upon the States 'in all criminal cases which—were they to be tried in a federal court—would come within the Sixth Amendment's guarantee.' This is because the Court has said it believes 'that trial by jury in criminal cases is fundamental to the American scheme of justice.' Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968); Bloom v. Illinois, 391 U.S. 194, 210—211, 88 S.Ct. 1477, 1486—1487, 20 L.Ed.2d 522 (1968).
51
This, of course, does not automatically provide the answer to the present jury trial issue, if for no other reason than that the juvenile court proceeding has not yet been held to be a 'criminal prosecution,' within the meaning and reach of the Sixth Amendment, and also has not yet been regarded as devoid of criminal aspects merely because it usually has been given the civil label. Kent, 383 U.S., at 554, 86 S.Ct. at 1054; Gault, 387 U.s., at 17, 49—50, 87 S.Ct., at 1438, 1455—1456; Winship, 397 U.S., at 365—366, 90 S.Ct., at 1073—1074.
52
Little, indeed, is to be gained by any attempt simplistically to call the juvenile court proceeding either 'civil' or 'criminal.' The Court carefully has avoided this wooden approach. Before Gault was decided in 1967, the Fifth Amendment's guarantee against self-incrimination had been imposed upon the state criminal trial. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). So, too, had the Sixth Amendment's rights of confrontation and cross-examination. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). Yet the Court did not automatically and peremptorily apply those rights to the juvenile proceeding. A reading of Gault reveals the opposite. And the same separate approach to the standard-of-proof issue is evident from the carefully separated application of the standard, first to the criminal trial, and then to the juvenile proceeding, displayed in Winship. 397 U.S., at 361 and 365, 90 S.Ct., at 1071 and 1073.
53
Thus, accepting 'the proposition that the Due Process Clause has a role to play,' Gault, 387 U.S., at 13, 87 S.Ct. at 1436, our task here with respect to trial by jury, as it was in Gault with respect to other claimed rights, 'is to ascertain the precise impact of the due process requirement.' Id., at 13—14, 87 S.Ct., at 1436.
V
54
The Pennsylvania juveniles' basic argument is that they were tried in proceedings 'substantially similar to a criminal trial.' They say that a delinquency proceeding in their State is initiated by a petition charging a penal code violation in the conclusory language of an indictment; that a juvenile detained prior to trial is held in a building substantially similar to an adult prison; that in Philadelphia juveniles over 16 are, in fact, held in the cells of a prison; that counsel and the prosecution engage in plea bargaining; that motions to suppress are routinely heard and decided; that the usual rules of evidence are applied; that the customary common-law defenses are available; that the press is generally admitted in the Philadelphia juvenile courtrooms; that members of the public enter the room; that arrest and prior record may be reported by the press (from police sources, however, rather than from the juvenile court records); that, once adjudged delinquent, a juvenile may be confined until his majority in what amounts to a prison (see In re Bethea, 215 Pa.Super. 75, 76, 257 A.2d 368, 369 (1969), describing the state correctional institution at Camp Hill as a 'maximum security prison for adjudged delinquents and youthful criminal offenders'); and that the stigma attached upon delinquency adjudication approximates that resulting from conviction in an adult criminal proceeding.
55
The North Carolina juveniles particularly urge that the requirement of a jury trial would not operate to deny the supposed benefits of the juvenile court system; that the system's primary benefits are its discretionary intake procedure permitting disposition short of adjudication, and its flexible sentencing permitting emphasis on rehabilitation; that realization of these benefits does not depend upon dispensing with the jury; that adjudication of factual issues on the one hand and disposition of the case on the other are very different matters with very different purposes; that the purpose of the former is indistinguishable from that of the criminal trial; that the jury trial provides an independent protective factor; that experience has shown that jury trials in juvenile courts are manageable; that no reason exists why protection traditionally accorded in criminal proceedings should be denied young people subject to involuntary incarceration for lengthy periods; and that the juvenile courts deserve healthy public scrutiny.
VI
56
All the litigants here agree that the applicable due process standard in juvenile proceedings, as developed by Gault and Winship, is fundamental fairness. As that standard was applied in those two cases, we have an emphasis on factfinding procedures. The requirements of notice, counsel, confrontation, cross-examination, and standard of proof naturally flowed from this emphasis. But one cannot say that in our legal system the jury is a necessary component of accurate factfinding. There is much to be said for it, to be sure, but we have been content to pursue other ways for determining facts. Juries are not required, and have not been, for example, in equity cases, in workmen's compensation, in probate, or in deportation cases. Neither have they been generally used in military trials. In Duncan the Court stated, 'We would not assert, however, that every criminal trial or any particular trial—held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury.' 391 U.S., at 158, 88 S.Ct., at 1452. In DeStefano, for this reason and others, the Court refrained from retrospective application of Duncan, an action it surely would have not taken had it felt that the integrity of the result was seriously at issue. And in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the Court saw no particular magic in a 12-man jury for a criminal case, thus revealing that even jury concepts themselves are not inflexible.
57
We must recognize, as the Court has recognized before, that the fond and idealistic hopes of the juvenile court proponents and early reformers of three generations ago have not been realized. The devastating commentary upon the system's failures as a whole, contained in the President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Juvenile Delinquency and Youth Crime 7—9 (1967), reveals the depth of disappointment in what has been accomplished. Too often the juvenile court judge falls far short of that stalwart, protective, and communicating figure the system envisaged.4 The community's unwillingness to provide people and facilities and to be concerned, the insufficiency of time devoted, the scarcity of professional help, the inadequacy of dispositional alternatives, and our general lack of knowledge all contribute to dissatisfaction with the experiment.5
58
The Task Force Report, however, also said, id., at 7, 'To say that juvenile courts have failed to achieve their goals is to say no more than what is true of criminal courts in the United States. But failure is most striking when hopes are highest.'
59
Despite all these disappointments, all these failures, and all these shortcomings, we conclude that trial by jury in the juvenile court's adjudicative stage is not a constitutional requirement. We so conclude for a number of reasons:
60
1. The Court has refrained, in the cases heretofore decided, from taking the easy way with a flat holding that all rights constitutionally assured for the adult accused are to be imposed upon the state juvenile proceeding. What was done in Gault and in Winship is aptly described in Commonwealth v. Johnson, 211 Pa.Super. 62, 74, 234 A.2d 9, 15 (1967):
61
'It is clear to us that the Supreme Court has properly attempted to strike a judicious balance by injecting procedural orderliness into the juvenile court system. It is seeking to reverse the trend (pointed out in Kent, 383 U.S., at 556, 86 S.Ct. 1045) whereby 'the child receives the worst of both worlds: * * *."
62
2. There is a possibility, at least, that the jury trial, if required as a matter of constitutional precept, will remake the juvenile proceeding into a fully adversary process and will put an effective end to what has been the idealistic prospect of an intimate, informal protective proceeding.
63
3. The Task Force Report, although concededly pre-Gault, is notable for its not making any recommendation that the jury trial be imposed upon the juvenile court system. This is so despite its vivid description of the system's deficiencies and disappointments. Had the Commission deemed this vital to the integrity of the juvenile process, or to the handling of juveniles, surely a recommendation or suggestion to this effect would have appeared. The intimations, instead, are quite the other way. Task Force Report 38. Further, it expressly recommends against abandonment of the system and against the return of the juvenile to the criminal courts.6
64
4. The Court specifically has recognized by dictum that a jury is not a necessary part even of every criminal process that is fair and equitable. Duncan v. Louisiana, 391 U.S., at 149—150, n. 14, and 158, 88 S.Ct., at 1447, and 1452.
65
5. The imposition of the jury trial on the juvenile court system would not strengthen greatly, if at all, the fact-finding function, and would, contrarily, provide an attrition of the juvenile court's assumed ability to function in a unique manner. It would not remedy the defects of the system. Meager as has been the hoped-for advance in the juvenile field, the alternative would be regressive, would lose what has been gained, and would tend once again to place the juvenile squarely in the routine of the criminal process.
66
6. The juvenile concept held high promise. We are reluctant to say that, despite disappointments of grave dimensions, it still does not hold promise, and we are particularly reluctant to say, as do the Pennsylvania appellants here, that the system cannot accomplish its rehabilitative goals. So much depends on the availability of resources, on the interest and commitment of the public, on willingness to learn, and on understanding as to cause and effect and cure. In this field, as in so many others, one perhaps learns best by doing. We are reluctant to disallow the States to experiment further and to seek in new and different ways the elusive answers to the problems of the young, and we feel that we would be impeding that experimentation by imposing the jury trial. The States, indeed, must go forward. If, in its wisdom, any State feels the jury trial is desirable in all cases, or in certain kinds, there appears to be no impediment to its installing a system embracing that feature. That, however, is the State's privilege and not its obligation.
67
7. Of course there have been abuses. The Task Force Report has noted them. We refrain from saying at this point that those abuses are of constitutional dimension. They relate to the lack of resources and of dedication rather than to inherent unfairness.
68
8. There is, of course, nothing to prevent a juvenile court judge, in a particular case where he feels the need, or when the need is demonstrated, from using an advisory jury.
69
9. 'The fact that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice 'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934).' Leland v. Oregon, 343 U.S. 790, 798, 72 S.Ct. 1002, 1007, 96 L.Ed. 1302 (1952). It therefore is of more than passing interest that at least 28 States and the District of Columbia by statute deny the juvenile a right to a jury trial in cases such as these.7 The same result is achieved in other States by judicial decision.8 In 10 States statutes provide for a jury trial under certain circumstances.9
70
10. Since Gault and since Duncan the great majority of States, in addition to Pennsylvania and North Carolina, that have faced the issue have concluded that the considerations that led to the result in those two cases do not compel trial by jury in the juvenile court. In re Fucini, 44 Ill.2d 305, 255 N.E.2d 380 (1970); Bible v. State, 254 N.E.2d 319 (Ind.1970); Dryden v. Commonwealth, 435 S.W.2d 457 (Ky.1968); In re Johnson, 254 Md. 517, 255 A.2d 419 (1969); Hopkins v. Youth Court, 227 So.2d 282 (Miss.1969); In re J.W., 106 N.J.Super. 129, 254 A.2d 334 (1969); In re D., 27 N.Y.2d 90, 313 N.Y.S.2d 704, 261 N.E.2d 627 (1970); In re Agler, 19 Ohio St.2d 70, 249 N.E.2d 808 (1969); State v. Turner, 253 Or. 235, 453 P.2d 910 (1969). See In re Estes v. Hopp, 73 Wash.2d 263, 438 P.2d 205 (1968); McMullen v. Geiger, 184 Neb. 581, 169 N.W.2d 431 (1969). To the contrary are Peyton v. Nord, 78 N.M. 717, 437 P.2d 716 (1968), and, semble, Nieves v. United States, 280 F.Supp. 994 (SDNY 1968).
71
11. Stopping short of proposing the jury trial for juvenile proceedings are the Uniform Juvenile Court Act, § 24(a), approved in July 1968 by the National Conference of Commissioners on Uniform State Laws; the Standard Juvenile Court Act, Art. V, § 19, proposed by the National Council on Crime and Delinquency (see W. Sheridan, Standards for Juvenile and Family Courts 73 Dept. of H.E.W., Children's Bureau Pub. No. 437—1966); and the Legislative Guide for Drafting Family and Juvenile Court Acts § 29(a) (Dept. of H.E.W., Children's Bureau Pub. No. 472—1969).
72
12. If the jury trial were to be injected into the juvenile court system as a matter of right, it would bring with it into that system the traditional delay, the formality, and the clamor of the adversary system and, possibly, the public trial. It is of interest that these very factors were stressed by the District Committee of the Senate when, through Senator Tydings, it recommended, and Congress then approved, as a provision in the District of Columbia Crime Bill, the abolition of the jury trial in the juvenile court. S.Rep. No. 91—620, pp. 13—14 (1969).
73
13. Finally, the arguments advanced by the juveniles here are, of course, the identical arguments that underlie the demand for the jury trial for criminal proceedings. The arguments necessarily equate the juvenile proceeding—or at least the adjudicative phase of it—with the criminal trial. Whether they should be so equated is our issue. Concern about the inapplicability of exclusionary and other rules of evidence, about the juvenile court judge's possible awareness of the juvenile's prior record and of the contents of the social file; about repeated appearances of the same familiar witnesses in the persons of juvenile and probation officers and social workers—all to the effect that this will create the likelihood of pre-judgment chooses to ignore it seems to us, every aspect of fairness, of concern, of sympathy, and of paternal attention that the juvenile court system contemplates.
74
If the formalities of the criminal adjudicative process are to be superimposed upon the juvenile court system, there is little need for its separate existence. Perhaps that ultimate disillusionment will come one day, but for the moment we are disinclined to give impetus to it.
75
Affirmed.
76
Mr. Justice WHITE, concurring.
77
Although the function of the jury is to find facts, that body is not necessarily or even probably better at the job than the conscientious judge. Nevertheless, the consequences of criminal guilt are so severe that the Constitution mandates a jury to prevent abuses of official power by insuring, where demanded, community participation in imposing serious deprivations of liberty and to provide a hedge against corrupt, biased, or political justice. We have not, however, considered the juvenile case a criminal proceeding within the meaning of the Sixth Amendment and hence automatically subject to all of the restrictions normally applicable in criminal cases. The question here is one of due process of law and I join the plurality opinion concluding that the States are not required by that clause to afford jury trials in juvenile courts where juveniles are charged with improper acts.
78
The criminal law proceeds on the theory that defendants have a will and are responsible for their actions. A finding of guilt establishes that they have chosen to engage in conduct so reprehensible and injurious to others that they must be punished to deter them and others from crime. Guilty defendants are considered blameworthy; they are branded and treated as such, however much the State also pursues rehabilitative ends in the criminal justice system.
79
For the most part, the juvenile justice system rests on more deterministic assumptions. Reprehensible acts by juveniles are not deemed the consequence of mature and malevolent choice but of environmental pressures (or lack of them) or of other forces beyond their control. Hence the state legislative judgment not to stigmatize the juvenile delinquent by branding him a criminal; his conduct is not deemed so blameworthy that punishment is required to deter him or others. Coercive measures, where employed, are considered neither retribution nor punishment. Supervision or confinement is aimed at rehabilitation, not at convincing the juvenile of his error simply by imposing pains and penalties. Nor is the purpose to make the juvenile delinquent an object lesson for others, whatever his own merits or demerits may be. A typical disposition in the juvenile court where delinquency is established may authorize confinement until age 21, but it will last no longer and within that period will last only so long as his behavior demonstrates that he remains an unacceptable risk if returned to his family. Nor is the authorization for custody until 21 any measure of the seriousness of the particular act that the juvenile has performed.
80
Against this background and in light of the distinctive purpose of requiring juries in criminal cases, I am satisfied with the Court's holding. To the extent that the jury is a buffer to the corrupt or overzealous prosecutor in the criminal law system, the distinctive intake policies and procedures of the juvenile court system to a great extent obviate this important function of the jury. As for the necessity to guard against judicial bias, a system eschewing blameworthiness and punishment for evil choice is itself an operative force against prejudice and short-tempered justice. Nor where juveniles are involved is there the same opportunity for corruption to the juvenile's detriment or the same temptation to use the courts for political ends.
81
Not only are those risks that mandate juries in criminal cases of lesser magnitude in juvenile court adjudications, but the consequences of adjudication are less severe than those flowing from verdicts of criminal guilt. This is plainly so in theory, and in practice there remains a substantial gulf between criminal guilt and delinquency, whatever the failings of the juvenile court in practice may be. Moreover, to the extent that current unhappiness with juvenile court performance rests on dissatisfaction with the vague and overbroad grounds for delinquency adjudications, with faulty judicial choice as to disposition after adjudication, or with the record of rehabilitative custody, whether institutional or probationary, these shortcomings are in no way mitigated by providing a jury at the adjudicative stage.
82
For me there remain differences of substance between criminal and juvenile courts. They are quite enough for me to hold that a jury is not required in the latter. Of course, there are strong arguments that juries are desirable when dealing with the young, and States are free to use juries if they choose. They are also free if they extend criminal court safeguards to juvenile court adjudications, frankly to embrace condemnation, punishment, and deterrence as permissible and desirable attributes of the juvenile justice system. But the Due Process Clause neither compels nor invites them to do so.
83
Mr. Justice BRENNAN, concurring in the judgment in No. 322 and dissenting in No. 128.
84
I agree with the plurality opinion's conclusion that the proceedings below in these cases were not 'criminal prosecutions' within the meaning of the Sixth Amendment. For me, therefore, the question in these cases is whether jury trial is among the 'essentials of due process and fair treatment.' In re Gault, 387 U.S. 1, 30, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527 (1967), required during the adjudication of a charge of delinquency based upon acts that would constitute a crime if engaged in by an adult. See In re Winship, 397 U.S. 358, 359, 90 S.Ct. 1068, 1070, 25 L.Ed.2d 368 and n. 1 (1970). This does not, however, mean that the interests protected by the Sixth Amendment's guarantee of jury trial in all 'criminal prosecutions' are of no importance in the context of these cases. The Sixth Amendment, where applicable, commands, not a particular procedure, protected by a particular procedure, that is, trial by jury. The Due Process Clause commands not a particular procedure, but only a result: in my Brother BLACKMUN's words, 'fundamental fairness * * * (in) factfinding.' In the context of these and similar juvenile delinquency proceedings, what this means is that the States are not bound to provide jury trials on demand so long as some other aspect of the process adequately protects the interests that Sixth Amendment jury trials are intended to serve.1
85
In my view, therefore, the due process question cannot be decided upon the basis of general characteristics of juvenile proceedings, but only in terms of the adequacy of a particular state procedure to 'protect the (juvenile) from oppression by the Government,' Singer v. United States, 380 U.S. 24, 31, 85 S.Ct. 783, 788, 13 L.Ed.2d 630 (1965), and to protect him against 'the complaint, biased, or eccentric judge.' Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968).
86
Examined in this light, I find no defect in the Pennsylvania cases before us. The availability of trial by jury allows an accused to protect himself against possible oppression by what is in essence an appeal to the community conscience, as embodied in the jury that hears his case. To some extent, however, a similar protection may be obtained when an accused may in essence appeal to the community at large, by focusing public attention upon the facts of his trial, exposing improper judicial behavior to public view, and obtaining, if necessary, executive redress through the medium of public indignation. Of course, the Constitution, in the context of adult criminal trials, has rejected the notion that public trial is an adequate substitution for trial by jury in serious cases. But in the context of juvenile delinquency proceedings, I cannot say that it is beyond the competence of a State to conclude that juveniles who fear that delinquency proceedings will mask judicial oppression may obtain adequate protection by focusing community attention upon the trial of their cases. For, however much the juvenile system may have failed in practice, its very existence as an ostensibly beneficent and noncriminal process for the care and guidance of young persons demonstrates the existence of the community's sympathy and concern for the young. Juveniles able to bring the community's attention to bear upon their trials may therefore draw upon a reservior of public concern unavailable to the adult criminal defendant. In the Pennsylvania cases before us, there appears to be no statutory ban upon admission of the public to juvenile trials.2 Appellants themselves, without contradiction, assert that 'the press is generally admitted' to juvenile delinquency proceedings in Philadelphia.3 Most important, the record in these cases is bare of any indication that any person whom appellants sought to have admitted to the courtroom was excluded. In these circumstances, I agree that the judgment in No. 322 must be affirmed.
87
The North Carolina cases, however, present a different situation. North Carolina law either permits or requires exclusion of the general public from juvenile trials.4 In the cases before us, the trial judge 'ordered the general public excluded from the hearing room and stated that only officers of the court, the juveniles, their parents or guardians, their attorney and witnesses would be present for the hearing,' In re Burrus, 4 N.C.App. 523, 525, 167 S.E.2d 454, 456 (1969), notwithstanding petitioners' repeated demand for a public hearing. The cases themselves, which arise out of a series of demonstrations by black adults and juveniles who believed that the Hyde County, North Carolina, school system unlawfully discriminated against black schoolchildren, present a paradigm of the circumstances in which there may be a substantial 'temptation to use the courts for political ends.' Opinion of Mr. Justice WHITE, ante at 552. And finally, neither the opinions supporting the judgment nor the respondent in No. 128 has pointed to any feature of North Carolina's juvenile proceedings that could substitute for public or jury trial in protecting the petitioners against misuse of the judicial process. Cf. Duncan v. Louisiana, 391 U.S. 145, 188, 193, 88 S.Ct. 1444, 1469, 1472, 20 L.Ed.2d 491 (1968) (Harlan, J., dissenting) (availability of resort to 'the political process' is an alternative permitting States to dispense with jury trials). Accordingly, I would reverse the judgment in No. 128.
88
Mr. Justice HARLAN, concurring in the judgments.
89
If I felt myself constrained to follow Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), which extended the Sixth Amendment right of jury trial to the States, I would have great difficulty, upon the premise seemingly accepted in my Brother BLACKMUN's opinion, in holding that the jury trial right does not extend to state juvenile proceedings. That premise is that juvenile delinquency proceedings have in practice actually become in many, if not all, respects criminal trials. But see my concurring and dissenting opinion in In re Gault, 387 U.S. 1, 65, 87 S.Ct. 1428, 1463, 18 L.Ed.2d 527 (1967). If that premise be correct, then I do not see why, given Duncan, juveniles as well as adults would not be constitutionally entitled to jury trials, so long as juvenile delinquency systems are not restructured to fit their original purpose. When that time comes I would have no difficulty in agreeing with by Brother BLACKMUN, and indeed with my Brother WHITE, the author of Duncan, that juvenile delinquency proceedings are beyond the pale of Duncan.
90
I concur in the judgments in these cases, however, on the ground that criminal jury trials are not constitutionally required of the States, either as a matter of Sixth Amendment law or due process. See my concurring and dissenting opinion in Duncan and my separate opinion in Williams v. Florida, 399 U.S. 78, 118—119, 90 S.Ct. 1893, 1915—1916, 26 L.Ed.2d 446 (1970).
91
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice MARSHALL concur, dissenting.
92
These cases from Pennsylvania and North Carolina present the issue of the right to a jury trial for offenders charged in juvenile court and facing a possible incarceration until they reach their majority. I believe the guarantees of the Bill of Rights, made applicable to the States by the Fourteenth Amendment, require a jury trial.
93
In the Pennsylvania cases one of the appellants was charged with robbery (Pa.Stat.Ann., Tit. 18, § 4704 (1963)), larceny (Pa.Stat.Ann., Tit. 18, § 4807), and receiving stolen goods (Pa.Stat.Ann., Tit. 18, § 4817) as acts of juvenile delinquency. Pa.Stat.Ann., Tit. 11, § 246 (1965). He was found a delinquent and placed on probation. The other appellant was charged with assault and battery on a police officer (Pa.Stat.Ann., Tit. 18, § 4708) and conspiracy (Pa.Stat.Ann., Tit. 18, § 4302) as acts of juvenile delinquency. On a finding of delinquency he was committed to a youth center. Despite the fact that the two appellants, aged 15 and 16, would face potential incarceration until their majority, Pa.Stat.Ann., Tit. 11, § 250, they were denied a jury trial.
94
In the North Carolina cases petitioners are students, from 11 to 15 years of age, who were charged under one of three criminal statutes: (1) 'disorderly conduct' in a public building, N.C.Gen.Stat. § 14—132 (1969); (2) 'wilful' interruption or disturbance of a public or private school, N.C.Gen.Stat. § 14—273; or (3) obstructing the flow of traffic on a highway or street, N.C.Gen.Stat. § 20—174.1 (1965 and Supp.1969).
95
Conviction of each of these crimes would subject a person, whether juvenile or adult, to imprisonment in a state institution. In the case of these students the possible term was six to 10 years; it would be computed for the period until an individual reached the age of 21. Each asked for a jury trial which was denied. The trial judge stated that the hearings were juvenile hearings, not criminal trials. But the issue in each case was whether they had violated a state criminal law. The trial judge found in each case that the juvenile had committed 'an act for which an adult may be punished by law' and held in each case that the acts of the juvenile violated one of the criminal statutes cited above. The trial judge thereupon ordered each juvenile to be committed to the state institution for the care of delinquents and then placed each on probation for terms from 12 to 24 months.
96
We held in In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527, that 'neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.' As we noted in that case, the Juvenile Court movement was designed to avoid procedures to ascertain whether the child was 'guilty' or 'innocent' but to bring to bear on these problems a 'clinical' approach. Id., at 15, 16, 87 S.Ct., at 1437, 1438. It is, of course, not our task to determine as a matter of policy whether a 'clinical' or 'punitive' approach to these problems should be taken by the States. But where a State uses its juvenile court proceedings to prosecute a juvenile for a criminal act and to order 'confinement' until the child reaches 21 years of age or where the child at the threshold of the proceedings faces that prospect, then he is entitled to the same procedural protection as an adult. As Mr. Justice Black said in In re Gault, supra, at 61, 87 S.Ct., at 1461 (concurring):
97
'Where a person, infant or adult, can be seized by the State, charged, and convicted for violating a state criminal law, and then ordered by the State to be confined for six years, I think the Constitution requires that he be tried in accordance with the guarantees of all the provisions of the Bill of Rights made applicable to the States by the Fourteenth Amendment. Undoubtedly this would be true of an adult defendant, and it would be a plain denial of equal protection of the laws—an invidious discrimination—to hold that others subject to heavier punishments could, because they are children, be denied these same constitutional safeguards.'
98
Just as courts have sometimes confused delinquency with crime, so have law enforcement officials treated juveniles not as delinquents but as criminals. As noted in the President's Crime Commission Report:
99
'In 1965, over 100,000 juveniles were confined in adult institutions. Presumably most of them were there because no separate juvenile detention facilities existed. Nonetheless, it is clearly undesirable that juveniles be confined with adults.' President's Commission on Law Enforcement and Administration of Justice, Challenge of Crime in a Free Society 179 (1967).
100
Even when juveniles are not incarcerated with adults the situation may be no better. One Pennsylvania correctional institution for juveniles is a brick building with barred windows, locked steel doors, a cyclone fence topped with barbed wire, and guard towers. A former juvenile judge described it as 'a maximum security prison for adjudged delinquents.' In re Bethea, 215 Pa.Super. 75, 76, 257 A.2d 368, 369.
101
In the present cases imprisonment or confinement up to 10 years was possible for one child and each faced at least a possible five-year incarceration. No adult could be denied a jury trial in those circumstances. Duncan v. Louisiana, 391 U.S. 145, 162, 88 S.Ct. 1444, 1454, 20 L.Ed.2d 491. The Fourteenth Amendment, which makes trial by jury provided in the Sixth Amendment applicable to the States, speaks of denial of rights to 'any person,' not denial of rights to 'any adult person'; and we have held indeed that where a juvenile is charged with an act that would constitute a crime if committed by an adult, he is entitled to be tried under a standard of proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.
102
In DeBacker v. Brainard, 396 U.S. 28, 33, 35, 90 S.Ct. 163, 166, 167, 24 L.Ed.2d 148 Mr. Justice Black and I dissented from a refusal to grant a juvenile, who was charged with forgery, a jury trial merely because the case was tried before Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, was decided. Mr. Justice Black, after noting that a juvenile being charged with a criminal act was entitled to certain constitutional safeguards, viz., notice of the issues, benefit of counsel, protection against compulsory self-incrimination, and confrontation of the witnesses against him, added:
103
'I can see no basis whatsoever in the language of the Constitution for allowing persons like appellant the benefit of those rights and yet denying them a jury trial, a right which is surely one of the fundamental aspects of criminal justice in the English-speaking world.' 396 U.S., at 34, 90 S.Ct., at 166.
104
I added that by reason of the Sixth and Fourteenth Amendments the juvenile is entitled to a jury trial
105
'as a matter of right where the delinquency charged is an offense that, if the person were an adult, would be a crime triable by jury. Such is this case, for behind the facade of delinquency is the crime of forgery.' Id., at 35, 90 S.Ct., at 167.
106
Practical aspects of these problems are urged against allowing a jury trial in these cases.* They have been answered by Judge De Ciantis of the Family Court of Providence, Rhode Island, in a case entitled In the Matter of McCloud, decided January 15, 1971. A juvenile was charged with the rape of a 17-year-old female and Judge De Ciantis granted a motion for a jury trial in an opinion, a part of which I have attached as an appendix to this dissent. He there concludes that 'the real traumatic' experience of incarceration without due process is 'the feeling of being deprived of basic rights.' He adds:
107
'The child who feels that he has been dealt with fairly and not merely expediently or as speedily as possible will be a better prospect for rehabilitation. Many of the children who come before the court come from broken homes, from the ghettos; they often suffer from low self-esteem; and their behavior is frequently a symptom of their own feelings of inadequacy. Traumatic experiences of denial of basic rights only accentuate the past deprivation and contribute to the problem. Thus, a general societal attitude of acceptance of the juvenile as a person entitled to the same protection as an adult may be the true beginning of the rehabilitative process.' Judge De Ciantis goes on to say that '(t)rial by jury will provide the child with a safeguard against being prejudged' by a judge who may well be prejudiced by reports already submitted to him by the police or caseworkers in the case. Indeed the child, the same as the adult, is in the category of those described in the Magna Carta:
108
'No freeman may be * * * imprisoned * * * except by the lawful judgment of his peers, or by the law of the land.'
109
These cases should be remanded for trial by jury on the criminal charges filed against these youngsters.
APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING
110
De Ciantis, J.: The defendant, who will hereinafter be referred to as a juvenile, on the sixth day of September, 1969, was charged with Rape upon a female chile, seventeen years old, in violation of Title 11, Chapter 37, Section 1, of the General Laws of 1956.
111
* * * * * *
TRAUMA
112
The fact is that the procedures which are now followed in juvenile cases are far more traumatic than the potential experience of a jury trial. Who can say that a boy who is arrested and handcuffed, placed in a lineup, transported in vehicles designed to convey dangerous criminals, placed in the same kind of a cell as an adult, deprived of his freedom by lodging him in an institution where he is subject to be transferred to the state's prison and in the 'hole' has not undergone a traumatic experience?
113
The experience of a trial with or without a jury is meant to be impressive and meaningful. The fact that a juvenile realizes that his case will be decided by twelve objective citizens would allow the court to retain its meaningfulness without causing any more trauma than a trial before a judge who perhaps has heard other cases involving the same juvenile in the past and may be influenced by those prior contacts. To agree that a jury trial would expose a juvenile to a traumatic experience is to lose sight of the real traumatic experience of incarceration without due process. The real traumatic experience is the feeling of being deprived of basic rights. (In) In the matter of Reis,1 this Court indicated the inadequacies of the procedure under which our court operates. A judge who receives facts of a case from the police and approves the filing of a petition based upon those facts may be placed in the untenable position of hearing a charge which he has approved. His duty is to adjudicate on the evidence introduced at the hearing and not be involved in any pre-adjudicatory investigation.
114
It is contrary to the fundamental principles of due process for the court to be compelled, as it is in this state, to act as a one-man grand jury, then sit in judgment on its own determination arising out of the facts and proceedings which he conducted. This responsibility belongs with a jury.
BACKLOG
115
An argument has been made that to allow jury trials would cause a great backlog of cases and, ultimately, would impair the functioning of the juvenile court. The fact however is that there is no meaningful evidence that granting the right to jury trials will impair the function of the court. Some states permit jury trials in all juvenile court cases; few juries have been demanded, and there is no suggestion from these courts that jury trials have impeded the system of juvenile justice.
116
In Colorado, where jury trials have been permitted by statute, Judge Theodore Rubin of the Denver Juvenile Court has indicated that jury trials are an important safeguard and that they have not impaired the functioning of the Denver Juvenile Courts. For example, during the first seven months of 1970, the two divisions of the Denver Juvenile Court have had fewer than two dozen jury trials, in both delinquency and dependency-neglect cases. In Michigan, where juveniles are also entitled to a jury trial, Judge Lincoln of the Detroit Juvenile Court indicates that his court has had less than five jury trials in the year 1969 to 1970.
117
The recent Supreme Court decision of Williams v. Florida (399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446) (June 22, 1970), which held that the constitutional right to trial by jury in criminal cases does not require a twelve-member jury, could be implemented to facilitate the transition to jury trials. A jury of less than twelve members would be less cumbersome, less 'formal,' and less expensive than the regular twelve-member jury, and yet would provide that accused with objective fact-finders.
118
In fact the very argument of expediency, suggesting 'supermarket' or 'assembly line' justice is one of the most forceful arguments in favor of granting jury trials. By granting the juvenile the right to a jury trial, we would, in fact, be protecting the accused from the judge who is under pressure to move the cases, the judge with too many cases and not enough time. It will provide a safeguard against the judge who may be prejudiced against a minority group or who may be prejudiced against the juvenile brought before him because of some past occurrence which was heard by the same judge.
119
There have been criticisms that juvenile court judges, because of their hearing caseload, do not carefully weigh the evidence in the adjudicatory phase of the proceedings. It is during this phase that the judge must determine whether in fact the evidence has been established beyond a reasonable doubt that the accused committed the acts alleged in the petition. Regardless of the merit of these criticisms, they have impaired the belief of the juveniles of the bar and of the public as to the opportunity for justice in the juvenile court. Granting the juvenile the right to demand that the facts be determined by a jury will strengthen the faith of all concerned parties in the juvenile system.
120
* * * * * *
121
It is important to note, at this time, a definite side benefit of granting jury trials, i.e., an aid to rehabilitation. The child who feels that he has been dealt with fairly and not merely expediently or as speedily as possible will be a better prospect for rehabilitation. Many of the children who come before the court come from broken homes, from the ghettos; they often suffer from low self-esteem; and their behavior is frequently a symptom of their own feelings of inadequacy. Traumatic experiences of denial of basic rights only accentuate the past deprivation and contribute to the problem. Thus, a general societal attitude of acceptance of the juvenile as a person entitled to the same protection as an adult may be the true beginning of the rehabilitative process.
PUBLIC TRIAL
122
Public trial in the judgment of this Court does not affect the juvenile court philosophy.
123
(In) In re Oliver2 Mr. Justice Black reviews the history of the public trial. Its origins are obscure, but it seems to have evolved along with the jury trial guarantee in English common law, and was then adopted as a provision of the Federal Constitution as well as by most state constitutions. Among the benefits of a public trial are the following:
124
1. 'Public trials come to the attention of key witnesses unknown to the parties. These witnesses may then voluntarily come forward and give important testimony.'
125
2. 'The spectators learn about their government and acquire confidence in their judicial remedies.'
126
3. 'The knowledge that every criminal trial is subject to contemporaneous review in the (forum) of public opinion is an effective restraint on possible abuse of judicial power.' (P. 270, 68 S.Ct. p. 506.)
127
Justice Black has nothing to say on the question of whether a public trial acts as a deterrent to crime, but it is clear that he believes publicity to improve the quality of criminal justice, both theoretically and practically.
128
As for the juvenile trial issue, he writes:
129
'Whatever may be the classification of juvenile court proceedings, they are often conducted without admitting all the public. But it has never been the practice to wholly exclude parents, relatives, and friends, or to refuse juveniles the benefit of counsel.' (P. 266, 68 S.Ct. p. 504.)
130
In fact, the juvenile proceedings as presently conducted are far from secret. Witnesses for the prosecution and for the defense, social workers, court reporters, students, police trainees, probation counselors, and sheriffs are present in the courtroom. Police, the Armed Forces, the Federal Bureau of Investigation obtain information and have access to the police files. There seems no more reason to believe that a jury trial would destroy confidentiality than would witnesses summoned to testify.
131
The Court also notes the report of the PRESIDENT'S COMMISSION O(N) LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 75 (1967), wherein it is stated:
132
'A juvenile's adjudication record is required by the law of most jurisdictions to be private and confidential; in practice the confidentiality of those reports is often violated.' Furthermore, '(s)tatutory restrictions almost invariably apply only to court records, and even as to those the evidence is that many courts routinely furnish information to the FBI and the military, and on request to government agencies and even to private employers.'
JUDGE'S EXPERTISE
133
The Court is also aware of the argument that the juvenile court was created to develop judges who were experts in sifting out the real problems behind a juvenile's breaking the law; therefore, to place the child's fate in the hands of a jury would defeat that purpose. This will, however, continue to leave the final decision of disposition solely with the judge. The role of the jury will be only to ascertain whether the facts, which give the court jurisdiction, have been established beyond a reasonable doubt. The jury will not be concerned with social and psychological factors. These factors, along with prior record, family and educational background, will be considered by the judge during the dispositional phase.
134
Taking into consideration the social background and other facts, the judge, during the dispositional phase, will determine what disposition is in the best interests of the child and society. It is at this stage that a judge's expertise is most important, and the granting of a jury trial will not prevent the judge from carrying out the basic philosophy of the juvenile court.
135
Trial by jury will provide the child with a safeguard against being prejudged. The jury clearly will have no business in learning of the social report or any of the other extraneous matter unless properly introduced under the rules of evidence. Due process demands that the trier of facts should not be acquainted with any of the facts of the case or have knowledge of any of the circumstances, whether through officials in his own department or records in his possession. If the accused believes that the judge has read an account of the facts submitted by the police or any other report prior to the adjudicatory hearing and that this may prove prejudicial, he can demand a jury and insure against such knowledge on the part of the trier of the facts.
WAIVER OF JURY TRIAL
136
Counsel also questions whether a child can waive his right to a jury trial or, in fact, whether a parent or counsel may waive.
137
When the waiver comes up for hearing, the Court could, at its discretion, either grant or refuse the juvenile's waiver of a jury trial, and/or appoint a guardian or legal counsel to advise the child.
138
My experience has shown that the greatest percentage of juveniles who appear before the court in felony cases have lived appalling lives due to parental neglect and brutality, lack of normal living conditions, and poverty. This has produced in them a maturity which is normally acquired much later in life. They are generally well aware of their rights in a court of law. However, in those cases where a child clearly needs guidance, the court-appointed guardian or attorney could explain to him the implications of a waiver. The juvenile's rights and interests would thus be protected every bit as stringently as they are today before he is allowed to plead guilty or not guilty to a complaint. A guilty plea is, after all, a waiver of the right to trial altogether.
139
Counsel is placed with the responsibility of explaining to the juvenile the significance of guilty and nolo contendere pleas, of instructing the juvenile on the prerogative to take the witness stand, and is expected to advise his client in the same manner as he would an adult about to stand trial. And now counsel suggests to the Court that counsel is not capable of explaining and waiving the right to a jury trial. The Court fails to see the distinction between this waiver and the absolute waiver, to wit, a guilty plea. Counsel should act in the best interest of his client, even if this may be in conflict with the parents. On a number of occasions this Court has appointed counsel for a juvenile whose parents could not afford to retain private counsel, and where the parents' interests were in conflict with those of the child. This procedure will be continued and the Court will continue to rely on the good judgment of the bar.
140
The Court could easily require that a waiver of a jury trial be made in person by the juvenile in writing, in open court, with the consent and approval of the Court and the attorney representing both the juvenile and the state. The judge could ascertain as to whether the juvenile can intelligently waive his right and, if necessary, appoint counsel to advise the youth as to the implications connected with the waiver. This could be accomplished without any difficulty through means presently available to the Court.
JURY OF PEERS
141
One of the most interesting questions raised is that concerning the right of a juvenile to a trial by his peers. Counsel has suggested that a jury of a juvenile's peers would be composed of other juveniles, that is, a 'teenage jury.' Webster's Dictionary, Second Edition, 1966, defines a peer as an equal, one of the same rank, quality, value. The word 'peers' means nothing more than citizens, In re Grilli, 110 Misc. 45, 179 N.Y.S. 795, 797. The phrase 'judgment of his peers' means at common law, a trial by a jury of twelve men, State v. Simons, 61 Kan. 752, 60 P. 1052. 'Judgment of his peers' is a term expressly borrowed from the Magna Charta, and it means a trial by jury, Ex parte Wagner, 58 Okl.Cr. 161, 50 P.2d 1135. The Declaration of Independence also speaks of the equality of all men. Are we now to say that a juvenile is a second-class citizen, not equal to an adult? The Constitution has never been construed to say women must be tried by their peers, to wit, by all-female juries, or Negroes by all-Negro juries.
142
The only restriction on the makeup of the jury is that there can be no systematic exclusion of those who meet local and federal requirements, in particular, voting qualifications.
143
The Court notes that presently in some states 18-year-olds can vote. Presumably, if they can vote, they may also serve on juries. Our own legislature has given first passage to an amendment to the Constitution to permit 18-year-olds to vote. Thus, it is quite possible that we will have teenage jurors sitting in judgment of their so-called 'peers.'
CRIMINAL PROCEEDING
144
The argument that the adjudication of delinquency is not the equivalent of criminal process is spurious. This Court has discussed the futility of making distinctions on the basis of labels in prior decisions. Because the legislature dictates that a child who commits a felony shall be called a delinquent does not change the nature of the crime. Murder is murder; robbery is robbery—they are both criminal offenses, not civil, regardless and independent of the age of the doer.
145
* * * * * *
146
It is noteworthy that in our statute there is not an express statutory provision indicating that the proceedings are civil. Trial by jury in Rhode Island is guaranteed to all persons, whether in criminal cases or in civil cases. That right existed prior to the adoption of the Constitution; and certainly whether one is involved in a civil or criminal proceeding of the Family Court in which his 'liberty' is to be 'taken' 'imprisoned' 'outlawed' and 'banished' he is entitled to a trial by jury. (Henry v. Cherry & Webb, 30 R.I. 13, at 30, 73 A. 97).
147
This Court believes that although the juvenile court was initially created as a social experiment, it has not ceased to be part of the judicial system. In view of the potential loss of liberty at stake in the proceeding, this Court is compelled to accord due process to all the litigants who come before it; and, therefore, all of the provisions of the Bill of Rights, including trial by jury, must prevail.
148
The Court concludes that the framers of our Constitution never intended to place the power in any one man or official, and take away the 'protection of the law from the rights of an individual.' It meant 'to secure the blessings of liberty to themselves and posterity.' The Constitution was written with the philosophy based upon a composite of all of the most liberal ideas which came down through the centuries; The Magna Charta, the Petition of Rights, the Bill of Rights and the Rules of Common Law; and the keystone is the preservation of individual liberty. All these ideas were carefully inserted in our Constitution.
149
The juvenile is constitutionally entitled to a jury trial.
1
See Mr. Justice Fortas' article, Equal Rights—For Whom?, 42 N.Y.U.L.Rev. 401, 406 (1967).
2
At McKeiver's hearing his counsel advised the court that he had never seen McKeiver before and 'was just in the middle of interviewing' him. The court allowed him five minutes for the interview. Counsel's office, Community Legal Services, however, had been appointed to represent McKeiver five months earlier. App. 2.
3
In North Carolina juvenile court procedures are provided only for persons under the age of 16. N.C.Gen.Stat. §§ 7A—277 and 7A—278(1) (1969).
4
'A recent study of juvenile court judges * * * revealed that half had not received undergraduate degrees; a fifth had received no college education at all; a fifth were not members of the bar.' Task Force Report 7.
5
'What emerges, then, is this: In theory the juvenile court was to be helpful and rehabilitative rather than punitive. In fact the distinction often disappears, not only because of the absence of facilities and personnel but also because of the limits of knowledge and technique. In theory the court's action was to affix no stigmatizing label. In fact a delinquent is generally viewed by employers, schools, the armed services—by society generally—as a criminal. In theory the court was to treat children guilty of criminal acts in noncriminal ways. In fact it labels truants and runaways as junior criminals.
'In theory the court's operations could justifiably be informal, its findings and decisions made without observing ordinary procedural safeguards, because it would act only in the best interest of the child. In fact it frequently does nothing more nor less than deprive a child of liberty without due process of law—knowing not what else to do and needing, whether admittedly or not, to act in the community's interest even more imperatively than the child's. In theory it was to exercise its protective powers to bring an errant child back into the fold. In fact there is increasing reason to believe that its intervention reinforces the juvenile's unlawful impulses. In theory it was to concentrate on each case the best of current social science learning. In fact it has often become a vested interest in its turn, loathe to cooperate with innovative programs or avail itself of forward-looking methods.' Task Force Report 9.
6
'Nevertheless, study of the juvenile courts does not necessarily lead to the conclusion that the time has come to jettison the experiment and remand the disposition of children charged with crime to the criminal courts of the country. As trying as are the problems of the juvenile courts, the problems of the criminal courts, particularly those of the lower courts, which would fall heir to much of the juvenile court jurisdiction, are even graver; and the ideal of separate treatment of children is still worth pursuing. What is required is rather a revised philosophy of the juvenile court based on the recognition that in the past our reach exceeded our grasp. The spirit that animated the juvenile court movement was fed in part by a humanitarian compassion for offenders who were children. That willingness to understand and treat people who threaten public safety and security should be nurtured, not turned aside as hopeless sentimentality, both because it is civilized and because social protection itself demands constant search for alternatives to the crude and limited expedient of condemnation and punishment. But neither should it be allowed to outrun reality. The juvenile court is a court of law, charged like other agencies of criminal justice with protecting the community against threatening conduct. Rehabilitating offenders through individualized handling is one way of providing protection, and appropriately the primary way in dealing with children. But the guiding consideration for a court of law that deals with threatening conduct is nonetheless protection of the community. The juvenile court, like other courts, is therefore obliged to employ all the means at hand, not excluding incapacitation, for achieving that protection. What should distinguish the juvenile from the criminal courts is greater emphasis on rehabilitation, not exclusive preoccupation with it.' Task Force Report 9.
7
Ala.Code, Tit. 13, § 369 (1958); Alaska Stat. § 47.10.070 (Supp.1970); Ariz.Rev.Stat.Ann. § 8—229 (1956), see Ariz.Laws, c. 223 (May 19, 1970); Ark.Stat.Ann. § 45—206 (1964); Del.Code Ann., Tit. 10, § 1175 (Supp.1970); Fla.Stat. § 39.09(2) (1965), F.S.A.; Ga.Code Ann. § 24—2420 (Supp.1970); Hawaii Rev.Stat. § 571—41 (1968); Idaho Code § 16—1813 (Supp.1969); Ind.Ann.Stat. § 9—3215 (Supp.1970); Iowa Code § 232.27 (1971); Ky.Rev.Stat. § 208.060 (1962); La.Rev.Stat. § 13:1579 (Supp.1962); Minn.Stat. § 260.155 subd. 1. (1969); Miss.Code Ann. § 7185—08 (1942); Mo.Rev.Stat. § 211.171(6) (1969) (equity practice controls), V.A.M.S.; Neb.Rev.Stat. § 43—206.03(2) (1968); Nev.Rev.Stat. § 62.190(3) (1968); N.J.Stat.Ann. § 2A:4—35 (1952); N.Y. Family Court Act §§ 164 and 165 and Civ.Prac. Law and Rules § 4101; N.C.Gen.Stat. § 7A 285 (1969); N.D.Cent.Code § 27—16—18 (1960); Ohio Rev.Code Ann. § 2151.35 (Supp.1970); Ore.Rev.Stat. § 419.498(1) (1968); Pa.Stat.Ann., Tit. 11, § 247 (1965); S.C.Code Ann. § 15—1095.19 (Supp.1970); Utah Code Ann. § 55—10—94 (Supp.1969); Vt.Stat.Ann., Tit. 33, § 651(a) (Supp.1970); Wash.Rev.Code Ann. § 13.04.030; D.C.Code § 16—2316(a) (Supp.1971).
8
In re Daedler, 194 Cal. 320, 228 P. 467 (1924); Cinque v. Boyd, 99 Conn. 70, 121 A. 678 (1923); In re Fletcher, 251 Md. 520, 248 A.2d 364 (1968); Commonwealth v. Page, 339 Mass. 313, 316, 159 N.E.2d 82, 85 (1959); In re Perham, 104 N.H. 276, 184 A.2d 449 (1962).
9
Colo.Rev.Stat.Ann. § 37—19—24 (Supp.1965); Kan.Stat.Ann. § 38—808 (Supp.1969); Mich.Comp.Laws § 712A.17 (1948); Mont.Rev.Codes Ann. § 10—604.1 (Supp.1969); Okla.Stat.Ann., Tit. 10, § 1110 (Supp.1970); S.D.Comp.Laws § 26—8—31 (1967); Tex.Civ.Stat., Art. 2338—1, § 13(b) (Supp.1970); W.Va.Code Ann. § 49—5—6 (1966); Wis.Stat.Ann. § 48.25(2) (Supp.1971); Wyo.Stat.Ann. § 14—115.24 (Supp.1971).
1
'A criminal process which was fair and equitable but used no juries is easy to imagine. It would make use of alternative guarantees and protections which would serve the purposes that the jury serves in the English and American systems.' Duncan v. Louisiana, 391 U.S. 145, 150 n. 14, 88 S.Ct. 1444, 1448, 20 L.Ed.2d 491 (1968). This conclusion is, of course, inescapable in light of our decisions that petty criminal offenses may be tried without a jury notwithstanding the defendant's request. E.g., District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937).
2
The generally applicable statute, Pa.Stat.Ann., Tit. 11, § 245 (1965), merely provides that juvenile proceedings shall 'be separate' from regular court business. Pa.Stat.Ann., Tit. 11, § 269—402 (1965), requiring exclusion of the general public from juvenile hearings, applies only to Allegheny County. Both of the instant cases were tried in Philadelphia County.
3
'The judges of the Philadelphia Juvenile Court exercise varying degrees of control over admission to the courtroom, but the press is generally admitted. * * *' Brief for Appellants 9 n. 9.
4
N.C.Gen.Stat. § 110—24 (1966), in force at the time of these trials, appears on its face to permit but not require such exclusion, as does identical language in the present statute, N.C.Gen.Stat. § 7A—285 (1969). The North Carolina Supreme Court in the present cases has read these statutes as a legislative determination 'that a public hearing is (not) in the best interest of the youthful offender.' In re Burrus, 275 N.C. 517, 530, 169 S.E.2d 879, 887 (1969).
*
The Public Defender Service for the District of Columbia and the Neighborhood Legal Services Program of Washington, D.C., have filed a brief amicus in which the results of a survey of jury trials in delinquency cases in the 10 States requiring jury trials plus the District of Columbia are set forth. The cities selected were mostly large metropolitan areas. Thirty juvenile courts processing about 75,000 juvenile cases a year were canvassed:
'(W)e discovered that during the past five and a half years, in 22 out of 26 courts surveyed, cumulative requests for jury trials totaled 15 or less. In the remaining five courts in our sample, statistics were unavailable. During the same period, in 26 out of 29 courts the cumulative number of jury trials actually held numbered 15 or less, with statistics unavailable for two courts in our sample. For example, in Tulsa, Oklahoma, counsel is present in 100% of delinquency cases, but only one jury trial has been requested and held during the past five and one-half years. In the Juvenile Court of Fort Worth, Texas, counsel is also present in 100% of the cases, and only two jury trials have been requested since 1967. The Juvenile Court in Detroit, Michigan, reports that counsel is appointed in 70—80% of its delinquency cases, but thus far in 1970, it has had only four requests for a jury. Between 1965 and 1969 requests for juries were reported as 'very few.'
'In only four juvenile courts in our sample has there clearly been a total during the past five and one-half years of more than 15 jury trial requests and/or more than 15 such trials held.'
The four courts showing more than 15 requests for jury trials were Denver, Houston, Milwaukee, and Washington, D.C.
1
Reis, 7 CrL 2151 (1970).
2
333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682.
| 12
|
403 U.S. 443
91 S.Ct. 2022
29 L.Ed.2d 564
Edward H. COOLIDGE, Jr., Petitioner,v.NEW HAMPSHIRE.
No. 323.
Argued Jan. 12, 1971.
Decided June 21, 1971.
Rehearing Denied Oct. 12, 1971.
See 92 S.Ct. 26.
Syllabus
Police went to petitioner's home on January 28, 1964, to question him about a murder. In the course of their inquiry he showed them three guns; and he agreed to take a lie-detector test on February 2. The test was inconclusive on the murder but during its course petitioner admitted a theft. In petitioner's absence, two other policemen came to the house and questioned petitioner's wife to check petitioner's story and corroborate his admission of the theft. Unaware of the visit of the other officers who had been shown the guns and knowing little about the murder weapon, the police asked about any guns there might be in the house and were shown four by petitioner's wife which she offered to let them take. After one policeman first declined the offer, they took the guns, along with various articles of petitioner's clothing his wife made available to them. On February 19, petitioner was arrested in his house for the murder and on that date a warrant to search petitioner's automobile was applied for by the police chief and issued by the Attorney General (who had assumed charge of the investigation and was later the chief prosecutor at the trial), acting as a justice of the peace. The car, which at the time of the arrest was parked in petitioner's driveway, was subsequently towed to the police station, where on February 21 and on two occasions the next year it was searched. Vacuum sweepings from the car as well as from the clothing were used as evidence at the trial, along with one of the guns made available by petitioner's wife. Following the overruling of pretrial motions to suppress that evidence, petitioner was convicted, and the State Supreme Court affirmed. Held:
1. The warrant for the search and seizure of petitioner's automobile did not satisfy the requirements of the Fourth Amendment as made applicable to the States by the Fourteenth because it was not issued by a 'neutral and detached magistrate.' Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436. Pp. 449—453.
2. The basic constitutional rule is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and welldefined exceptions,' and, on the facts of this case, a warrantless search and seizure of the car cannot be justified under those exceptions. Pp. 453—482.
(a) The seizure of the car in the driveway cannot be justified as incidental to the arrest which took place inside the house. Even assuming, arguendo, that the police could properly have made a warrantless search of the car in the driveway when they arrested petitioner, they could not have done so at their leisure after its removal. Pp. 455—457.
(b) Under the circumstances present here—where the police for some time had known of the probable role of the car in the crime, petitioner had had ample opportunity to destroy incriminating evidence, the house was guarded at the time of arrest and petitioner had no access to the car—there were no exigent circumstances justifying the warrantless search even had it been made before the car was taken to the police station, and the special exceptions for automobile searches in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed. 419, are clearly inapplicable. Cf. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538. Pp. 458—464.
(c) Under certain circumstances the police may without a warrant seize evidence in 'plain view,' though not for that reason alone and only when the discovery of the evidence is inadvertent. That exception is inapplicable to the facts of the instant case, where the police had ample opportunity to obtain a valid warrant, knew in advance the car's description and location, intended to seize it when they entered on petitioner's property, and no contraband or dangerous objects were involved. Pp. 464—473.
3. No search and seizure were implicated in the February 2 visit when the police obtained the guns and clothing from petitioner's wife, and hence they needed no warrant. The police, who exerted no effort to coerce or dominate her, were not obligated to refuse her offer for them to take the guns, and in making these and the other items available to the police, she was not acting as the instrument or agent of the police. Pp. 484—490.
109 N.H. 403, 260 A.2d 547, reversed and remanded.
Archibald Cox, Washington, D.C., for petitioner.
Alexander Kalinski, Manchester, N.H., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.**
1
We are called upon in this case to decide issues under the Fourth and Fourteenth Amendments arising in the context of a state criminal trial for the commission of a particularly brutal murder. As in every case, our single duty is to determine the issues presented in accord with the Constitution and the law.
2
Pamela Mason, a 14-year-old girl, left her home in Manchester, New Hampshire, on the evening of January 13, 1964, during a heavy snowstorm, apparently in response to a man's telephone call for a babysitter. Eight days later, after a thaw, her body was found by the site of a major north-south highway several miles away. She had been murdered. The event created great alarm in the area, and the police immediately began a massive investigation.
3
On January 28, having learned from a neighbor that the petitioner, Edward Coolidge, had been away from home on the evening of the girl's disappearance, the police went to his house to question him. They asked him, among other things, if he owned any guns, and he produced three, two shotguns and a rifle. They also asked whether he would take a lie-detector test concerning his account of his activities on the night of the disappearance. He agreed to do so on the following Sunday, his day off. The police later described his attitude on the occasion of this visit as fully 'cooperative.' His wife was in the house throughout the interview.
4
On the following Sunday, a policeman called Coolidge early in the morning and asked him to come down to the police station for the trip to Concord, New Hampshire, where the lie-detector test was to be administered. That evening, two plainclothes policemen arrived at the Coolidge house, where Mrs. Coolidge was waiting with her mother-in-law for her husband's return. These two policemen were not the two who had visited the house earlier in the week, and they apparently did not know that Collidge had displayed three guns for inspection during the earlier visit. The plainclothesmen told Mrs. Coolidge that her husband was in 'serious trouble' and probably would not be home that night. They asked Coolidge's mother to leave, and proceeded to question Mrs. Coolidge. During the course of the interview they obtained from her four guns belonging to Coolidge, and some clothes that Mrs. Coolidge thought her husband might have been wearing on the evening of Pamela Mason's disappearance.
5
Coolidge was held in jail on an unrelated charge that night, but he was released the next day.1 During the ensuing two and a half weeks, the State accumulated a quantity of evidence to support the theory that it was he who had killed Pamela Mason. On February 19, the results of the investigation were presented at a meeting between the police officers working on the case and the State Attorney General, who had personally taken charge of all police activities relating to the murder, and was later to serve as chief prosecutor at the trial. At this meeting, it was decided that there was enough evidence to justify the arrest of Coolidge on the murder charge and a search of his house and two cars. At the conclusion of the meeting, the Manchester police chief made formal application, under oath, for the arrest and search warrants. The complaint supporting the warrant for a search of Coolidge's Pontiac automobile, the only warrant that concerns us here, stated that the affiant 'has probable cause to suspect and believe, and does suspect and believe, and herewith offers satisfactory evidence, that there are certain objects and things used in the Commission of said offense, now kept, and concealed in or upon a certain vehicle, to wit: 1951 Pontiac two-door sedan * * *.' The warrants were then signed and issued by the Attorney General himself, acting as a justice of the peace. Under New Hampshire law in force at that time, all justices of the peace were authorized to issue search warrants. N.H.Rev.Stat.Ann. § 595:1 (repealed 1969).
6
The police arrested Coolidge in his house on the day the warrant issued. Mrs. Coolidge asked whether she might remain in the house with her small child, but was told that she must stay elsewhere, apparently in part because the police believed that she would be harassed by reporters if she were accessible to them. When she asked whether she might take her car, she was told that both cars had been 'impounded,' and that the police would provide transportation for her. Some time later, the police called a towing company, and about two and a half hours after Coolidge had been taken into custody the cars were towed to the police station. It appears that at the time of the arrest the cars were parked in the Coolidge driveway, and that although dark had fallen they were plainly visible both from the street and from inside the house where Coolidge was actually arrested. The 1951 Pontiac was searched and vacuumed on February 21, two days after it was seized, again a year later, in January 1965, and a third time in April 1965.
7
At Coolidge's subsequent jury trial on the charge of murder, vacuum sweepings, including particles of gun powder, taken from the Pontiac were introduced in evidence against him, as part of an attempt by the State to show by microscopic analysis that it was highly probable that Pamela Mason had been in Coolidge's car.2 Also introduced in evidence was one of the guns taken by the police on their Sunday evening visit to the Coolidge house—a 22-caliber Mossberg rifle, which the prosecution claimed was the murder weapon. Conflicting ballistics testimony was offered on the question whether the bullets found in Pamela Mason's body had been fired from this rifle. Finally, the prosecution introduced vacuum sweepings of the clothes taken from the Coolidge house that same Sunday evening, and attempted to show through microscopic analysis that there was a high probability that the clothes had been in contact with Pamela Mason's body. Pretrial motions to suppress all this evidence were referred by the trial judge to the New Hampshire Supreme Court, which ruled the evidence admissible. 106 N.H. 186, 208 A.2d 322. The jury found Coolidge guilty and he was sentenced to life imprisonment. The New Hampshire Supreme Court affirmed the judgment of conviction, 109 N.H. 403, 260 A.2d 547, and we granted certiorari to consider the constitutional questions raised by the admission of this evidence against Coolidge at his trial. 399 U.S. 926, 90 S.Ct. 2253, 26 L.Ed.2d 806.
8
* The petitioner's first claim is that the warrant authorizing the seizure and subsequent search of his 1951 Pontiac automobile was invalid because not issued by a 'neutral and detached magistrate.' Since we agree with the petitioner that the warrant was invalid for this reason, we need not consider his further argument that the allegations under oath supporting the issuance of the warrant were so conclusory as to violate relevant constitutional standards. Cf. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.
9
The classic statement of the policy underlying the warrant requirement of the Fourth Amendment is that of Mr. Justice Jackson, writing for the Court in Johnson v. United States, 333 U.S. 10, 13—14, 68 S.Ct. 367, 369, 92 L.Ed. 436:
10
'The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. * * * When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.'
11
Cf. United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 423, 76 L.Ed. 877; Giordenello v. United States, supra, at 486, 78 S.Ct., at 1250; Wong Sun v. United States, 371 U.S. 471, 481—482, 83 S.Ct. 407, 413—414, 9 L.Ed.2d 441; Katz v. United States, 389 U.S. 347, 356—357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576.
12
In this case, the determination of probable cause was made by the chief 'government enforcement agent' of the State—the Attorney General—who was actively in charge of the investigation and later was to be chief prosecutor at the trial. To be sure, the determination was formalized here by a writing bearing the title 'Search Warrant,' whereas in Johnson there was no piece of paper involved, but the State has not attempted to uphold the warrant on any such artificial basis. Rather, the State argues that the Attorney General, who was unquestionably authorized as a justice of the peace to issue warrants under then existing state law, did in fact act as a 'neutral and detached magistrate.' Further, the State claims that any magistrate, confronted with the showing of probable cause made by the Manchester chief of police, would have issued the warrant in question. To the first proposition it is enough to answer that there could hardly be a more appropriate setting than this for a per se rule of disqualification rather than a case-by-case evaluation of all the circumstances. Without disrespect to the state law enforcement agent here involved, the whole point of the basic rule so well expressed by Mr. Justice Jackson is that prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations—the 'competitive enterprise' that must rightly engage their single-minded attention.3 Cf. Mancusi v. DeForte, 392 U.S. 364, 371, 88 S.Ct. 2120, 2125, 20 L.Ed.2d 1154. As for the proposition that the existence of probable cause renders noncompliance with the warrant procedure an irrelevance, it is enough to cite Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 416, 70 L.Ed. 145, decided in 1925:
13
'Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.'
14
See also Jones v. United States, 357 U.S. 493, 497—498, 78 S.Ct. 1253, 1256, 2 L.Ed.2d 1514; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319. ('(T)he rights * * * against unlawful search and seizure are to be protected even if the same result might have been achieved in a lawful way.')
15
But the New Hampshire Supreme Court, in upholding the conviction, relied upon the theory that even if the warrant procedure here in issue would clearly violate the standards imposed on the Federal Government by the Fourth Amendment, it is not forbidden the States under the Fourteenth. This position was premised on a passage from the opinion of this Court in Ker v. California, 374 U.S. 23, 31, 83 S.Ct. 1623, 1628, 10 L.Ed.2d 726:
16
'Preliminary to our examination of the search and seizures involved here, it might be helpful for us to indicate what was not decided in Mapp (v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081). First, it must be recognized that the 'principles governing the admissibility of evidence in federal criminal trials have not been restricted * * * to those derived solely from the Constitution. In the exercise of its supervisory authority over the administration of criminal justice in the federal courts * * * this Court has * * * formulated rules of evidence to be applied in federal criminal prosecutions.' McNabb v. United States, 318 U.S. 332, 341, 63 S.Ct. 608, 613, 87 L.Ed. 819 (1943); * * * Mapp, however, established no assumption by this Court of supervisory authority over state courts * * * and, consequently, it implied no total obliteration of state laws relating to arrests and searches in favor of federal law. Mapp sounded no death knell for our federalism; rather, it echoed the sentiment of Elkins v. United States, supra, 364 U.S. (206), at 221, 80 S.Ct. (1437), at 1446, 4 L.Ed.2d 1669, that 'a healthy federalism depends upon the avoidance of needless conflict between state and federal courts' by itself urging that '(f)ederal-state cooperation in the solution of crime under constitutional standards will be promoted, if only by recognition of their now mutual obligation to respect the same fundamental criteria in their approaches.' 367 U.S., at 658, 81 S.Ct., at 1693, 6 L.Ed.2d 1081.' (Emphasis in Ker.)
17
It is urged that the New Hampshire statutes which at the time of the searches here involved permitted a law enforcement officer himself to issue a warrant was one of those 'workable rules governing arrests, searches and seizures to meet 'the practical demands of effective criminal investigation and law enforcement' in the States,' id., at 34, 83 S.Ct., at 1630, authorized by Ker.
18
That such a procedure was indeed workable from the point of view of the police is evident from testimony at the trial in this case:
19
'The Court: You mean that another police officer issues these (search warrants)?
20
'The Witness: Yes. Captain Couture and Captain Shea and Captain Loveren are J.P.'s.
21
'The Court: Well, let me ask you, Chief, your answer is to the effect that you never go out of the department for the Justice of the Peace?
22
'The Witness: It hasn't been our—policy to go out of the deparment.
23
'Q. Right. Your policy and experience, is to have a fellow police officer take the warrant in the capacity of Justice of the Peace?
24
'A. That has been our practice.' But it is too plain for extensive discussion that this now abandoned New Hampshire method of issuing 'search warrants' violated a fundamental premise of both the Fourth and Fourteenth Amendments—a premise fully developed and articulated long before this Court's decisions in Ker v. California, supra, and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. As Mr.Justice Frankfurter put it in Wolf v. Colorado, 338 U.S. 25, 27—28, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782:
25
'The security of one's privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause. The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned * * *.'
26
We find no escape from the conclusion that the seizure and search of the Pontiac automobile cannot constitutionally rest upon the warrant issued by the state official who was the chief investigator and prosecutor in this case. Since he was not the neutral and detached magistrate required by the Constitution, the search stands on no firmer ground than if there had been no warrant at all. If the seizure and search are to be justified, they must, therefore, be justified on some other theory.
II
27
The State proposes three distinct theories to bring the facts of this case within one or another of the exceptions to the warrant requirement. In considering them, we must not lose sight of the Fourth Amendment's fundamental guarantee. Mr. Justice Bradley's admonition in his opinion for the Court almost a century ago in Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746, is worth repeating here:
28
'It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.'4
29
Thus the most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions.'5 The exceptions are 'jealously and carefully drawn,'6 and there must be 'a showing by those who seek exemption * * * that the exigencies of the situation made that course imperative.'7 '(T)he burden is on those seeking the exemption to show the need for it.'8 In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or 'extravagant' to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won—by legal and constitutional means in England,9 and by revolution on this continent—a right of personal security against arbitrary intrusions by official power. If times have changed, reducing everyman's scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important.10
A.
30
The State's first theory is that the seizure on February 19 and subsequent search of Coolidge's Pontiac were 'incident' to a valid arrest. We assume that the arrest of Coolidge inside his house was valid, so that the first condition of a warrantless 'search incident' is met. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 567 n. 11, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306. And since the events in issue took place in 1964, we assess the State's argua different result where the arrest is made inside the house and the search outside and at some distance away.11
31
Even assuming, arguendo, that the police might have searched the Pontiac in the driveway when they arrested Coolidge in the house, Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, makes plain that they could not legally seize the car, remove it, and search it at their leisure without a warrant. In circumstances virtually identical to those here, Mr. Justice Black's opinion for a unanimous Court held that '(o)nce an accused is under arrest and in custody, then a search (of his car) made at another place, without a warrant, is simply not incident to the arrest.' Id., at 367, 84 S.Ct., at 883. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538. Cf. Chambers v. Maroney, 399 U.S. 42, 47, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419. Search-incident doctrine, in short, has no applicability to this case.12
B
32
The second theory put forward by the State to justify a warrantless seizure and search of the Pontiac car is that under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, the police may make a warrantless search of an automobile whenever they have probable cause to do so, and, under our decision last Term in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, whenever the police may make a legal contemporaneous search under Carroll, they may also seize the car, take it to the police station, and search it there. But even granting that the police had probable cause to search the car, the application of the Carroll case to these facts would extend it far beyond its original rationale.
33
Carroll did indeed hold that 'contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant,'13 provided that 'the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported.'14 Such searches had been explicitly authorized by Congress, and, as we have pointed out elsewhere,15 in the conditions of the time '(a)n automobile * * * was an almost indispensable instrumentality in large-scale violation of the National Prohibition Act, and the car itself therefore was treated somewhat as an offender and became contraband.' In two later cases,16 each involving an occupied automobile stopped on the open highway and searched for contraband liquor, the Court followed and reaffirmed Carroll.17 And last Term in Chambers, supra, we did so again.
34
The underlying rationale of Carroll and of all the cases that have followed it is that there is
35
'a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.' 267 U.S., at 153, 45 S.Ct., at 285. (Emphasis supplied.)
36
As we said in Chambers, supra, at 51, 90 S.Ct., at 1981, 'exigent circumstances' justify the warrantless search of 'an automobile stopped on the highway,' where there is probable cause, because the car is 'movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained.' '(T)he opportunity to search is fleeting * * *.' (Emphasis supplied.)
37
In this case, the police had known for some time of the probable role of the Pontiac car in the crime. Coolidge was aware that he was a suspect in the Mason murder, but he had been extremely cooperative throughout the investigation, and there was no indication that he meant to flee. He had already had ample opportunity to destroy any evidence he thought incriminating. There is no suggestion that, on the night in question, the car was being used for any illegal purpose, and it was regularly parked in the driveway of his house. The opportunity for search was thus hardly 'fleeting.' The objects that the police are assumed to have had probable cause to search for in the car were neither stolen nor contraband nor dangerous.
38
When the police arrived at the Coolidge house to arrest him, two officers were sent to guard the back door while the main party approached from the front. Coolidge was arrested inside the house, without resistance of any kind on his part, after he had voluntarily admitted the officers at both front and back doors. There was no way in which he could conceivably have gained access to the automobile after the police arrived on his property. When Coolidge had been taken away, the police informed Mrs. Coolidge, the only other adult occupant of the house, that she and her bady had to spend the night elsewhere and that she could not use either of the Coolidge cars. Two police officers then drove her in a police car to the house of a relative in another town, and they stayed with her there until around midnight, long after the police had had the Pontiac towed to the station house. The Coolidge premises were guarded throughout the night by two policemen.18
39
The word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears. And surely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States—no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized autobile. In short, by no possible stretch of the legal imagination can this be made into a case where 'it is not practicable to secure a warrant,' Carroll, supra, at 153, 45 S.Ct., at 285, and the 'automobile exception,' despite its label, is simply irrelevant.19
40
Since Carroll would not have justified a warrantless search of the Pontiac at the time Coolidge was arrested, the later search at the station house was plainly illegal, at least so far as the automobile exception is concerned. Chambers, supra, is of no help to the State, since that case held only that, where the police may stop and search an automobile under Carroll, they may also seize it and search it later at the police station.20 Rather, this case is controlled by Dyke v. Taylor Implement Mfg. Co., supra. There the police lacked probable cause to seize or search the defendant's automobile at the time of his arrest, and this was enough by itself to condemn the subsequent search at the station house. Here there was probable cause, but no exigent circumstances justified the police in proceeding without a warrant. As in Dyke, the later search at the station house was therefore illegal.21
C
41
The State's third theory in support of the warrantless seizure and search of the Pontiac car is that the car itself was an 'instrumentality of the crime,' and as such might be seized by the police on Coolidge's property because it was in plain view. Supposing the seizure to be thus lawful, the case of Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730, is said to support a subsequent warrantless search at the station house, with or without probable cause. Of course, the distinction between an 'instrumentality of crime' and 'mere evidence' was done away with by Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, and we may assume that the police had probable cause to seize the automobile.22 But, for the reasons that follow, we hold that the 'plain view' exception to the warrant requirement is inapplicable to this case. Since the seizure was therefore illegal, it is unnecessary to consider the applicability of Cooper, supra, to the subsequent search.23
42
It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the 'plain view' doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal.
43
An example of the applicability of the 'plain view' doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character. Cf. Go-Bart Importing Co. v. United States, 282 U.S. 344, 358, 51 S.Ct. 153, 158, 75 L.Ed. 374; United States v. Lefkowitz, 285 U.S. 452, 465, 52 S.Ct. 420, 423, 76 L.Ed. 877; Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757; Stanley v. Georgia, 394 U.S. 557, 571, 89 S.Ct. 1243, 1251, 22 L.Ed.2d 542 (Stewart, J., concurring in result). Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus the police may inadvertently come across evidence while in 'hot pursuit' of a fleeing suspect. Warden v. Hayden, supra; cf. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898. And an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant.24 Chimel v. California, 395 U.S., at 762—763, 89 S.Ct., at 2039—2040. Finally, the 'plain view' doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684; Ker v. California, 374 U.S., at 43, 83 S.Ct., at 1635. Cf. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312.
44
What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification—whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused—and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the 'plan view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Cf. Stanley v. Georgia, supra, at 571—572, 89 S.Ct., at 1251 (Stewart, J., concurring in result).
45
The rationale for the 'plain view' exception is evident if we keep in mind the two distinct constitutional protections served by the warrant requirement. First, the magistrate's scrutiny is intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity. See, e.g., McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 83 L.Ed. 153; Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576; Chimel v. California, 395 U.S., at 761—762, 89 S.Ct., at 2039. The second, distinct objective is that those searches deemed necessary should be as limited as possible. Here, the specific evil is the 'general warrant' abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings. See, e.g., Boyd v. United States, 116 U.S., at 624—630, 6 S.Ct., at 528—532; Marron v. United States, 275 U.S. 192, 195—196, 48 S.Ct. 74, 75—76, 72 L.Ed. 231; Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431. The warrant accomplishes this second objective by requiring a 'particular description' of the things to be seized.
46
The 'plain view' doctrine is not in conflict with the first objective because plain view does not occur until a search is in progress. In each case, this initial intrusion is justified by a warrant or by an exception such as 'hot pursuit' or search incident to a lawful arrest, or by an extraneous valid reason for the officer's presence. And, given the initial intrusion, the seizure of an object in plain view is consistent with the second objective, since it does not convert the search into a general or exploratory one. As against the minor peril to Fourth Amendment protections, there is a major gain in effective law enforcement. Where, once an otherwise lawful search is in progress, the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous—to the evidence or to the police themselves—to require them to ignore it until they have obtained a warrant particularly describing it.
47
The limits on the doctrine are implicit in the statement of its rationale. The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent 'exigent circumstances.' Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure. Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; Jones v. United States, 357 U.S. 493, 497—498, 78 S.Ct. 1253, 1256—1257, 2 L.Ed.2d 1514; Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663.25
48
The second limitation is that the discovery of evidence in plain view must be inadvertent.26 The rationale of the exception to the warrant requirement, as just stated, is that a plain-view seizure will not turn an initially valid (and therefore limited) search into a 'general' one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as 'per se unreasonable' in the absence of 'exigent circumstances.'
49
If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a violation of the express constitutional requirement of 'Warrants * * * particularly describing * * * (the) things to be seized.' The initial intrusion may, of course, be legitimated not by a warrant but by one of the exceptions to the warrant requirement, such as hot pursuit or search incident to lawful arrest. But to extend the scope of such an intrusion to the seizure of objects—not contraband nor stolen nor dangerous in themselves—which the police know in advance they will find in plain view and intend to seize, would fly in the face of the basic rule that no amount of probable cause can justify a warrantless seizure.27
50
In the light of what has been said, it is apparent that the 'plain view' exception cannot justify the police seizure of the Pontiac car in this case. The police had ample opportunity to obtain a valid warrant; they knew the automobile's exact description and location well in advance; they intended to seize it when they came upon Coolidge's property. And this is not a case involving contraband or stolen goods or objects dangerous in themselves.28
51
The seizure was therefore unconstitutional, and so was the subsequent search at the station house. Since evidence obtained in the course of the search was admitted at Coolidge's trial, the judgment must be reversed and the case remanded to the New Hampshire Supreme Court. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
D
52
In his dissenting opinion today, Mr. Justice WHITE marshals the arguments that can be made against our interpretation of the 'automobile' and 'plain view' exceptions to the warrant requirement. Beyond the unstartling proposition that when a line is drawn there is often not a great deal of difference between the situations closest to it on either side, there is a single theme that runs through what he has to say about the two exceptions. Since that theme is a recurring one in controversies over the proper meaning and scope of the Fourth Amendment, it seems appropriate to treat his views in this separate section, rather than piecemeal.
53
Much the most important part of the conflict that has been so notable in this Court's attempts over a hundred years to develop a coherent body of Fourth Amendment law has been caused by disagreement over the importance of requiring law enforcement officers to secure warrants. Some have argued that a determination by a magistrate of probable cause as a precondition of any search or seizure is so essential that the Fourth Amendment is violated whenever the police might reasonably have obtained a warrant but failed to do so. Others have argued with equal force that a test of reasonableness, applied after the fact of search or seizure when the police attempt to introduce the fruits in evidence, affords ample safeguard for the rights in question, so that '(t)he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.'29
54
Both sides to the controversy appear to recognize a distinction between searches and seizures that take place on a man's property—his home or office—and those carried out elsewhere. It is accepted, at least as a matter of principle, that a search or seizure carried out on a suspect's premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of 'exigent circumstances.'30 As to other kinds of intrusions, however, there has been disagreement about the basic rules to be applied, as our cases concerning automobile searches, electronic surveillance, street searches and administrative searches make clear.31
55
With respect to searches and seizures carried out on a suspect's premises, the conflict has been over the question of what qualifies as an 'exigent circumstance.' It might appear that the difficult inquiry would be when it is that the police can enter upon a person's property to seize his 'person * * * papers, and effects,' without prior judicial approval. The question of the scope of search and seizure once the police are on the premises would appear to be subsidiary to the basic issue of when intrusion is permissible. But the law has not developed in this fashion.
56
The most common situation in which Fourth Amendment issues have arisen has been that in which the police enter the suspect's premises, arrest him, and then carry out a warrantless search and seizure of evidence. Where there is a warrant for the suspect's arrest, the evidence seized may later be challenged either on the ground that the warrant was improperly issued because there was not probable cause,32 or on the ground that the police search and seizure went beyond that which they could carry out as an incident to the execution of the arrest warrant.33 Where the police act without an arrest warrant, the suspect may argue that an arrest warrant was necessary, that there was no probable cause to arrest,34 or that even if the arrest was valid, the search and seizure went beyond permissible limits.35 Perhaps because each of these lines of attack offers a plethora of litigable issues, the more fundamental question of when the police may arrest a man in his house without a warrant has been little considered in the federal courts. This Court has chosen on a number of occasions to assume the validity of an arrest and decide the case before it on the issue of the scope of permissible warrantless search. E.g., Chimel v. California, supra. The more common inquiry has therefore been: 'Assuming a valid police entry for purposes of arrest, what searches and seizures may the police carry out without prior authorization by a magistrate?'
57
Two very broad, and sharply contrasting answers to this question have been assayed by this Court in the past. The answer of Trupiano v. United States, supra, was that no searches and seizures could be legitimated by the mere fact of valid entry for purposes of arrest, so long as there was no showing of special difficulties in obtaining a warrant for search and seizure. The contrasting answer in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, and United States v. Rabinowitz, supra, was that a valid entry for purposes of arrest served to legitimate warrantless searches and seizure throughout the premises where the arrest occurred, however spacious those premises might be.
58
The approach taken in Harris and Rabinowitz was open to the criticism that it made it so easy for the police to arrange to search a man's premises without a warrant that the Constitution's protection of a man's 'effects' became a dead letter. The approach taken in Trupiano, on the other hand, was open to the criticism that it was absurd to permit the police to make an entry in the dead of night for purposes of seizing the 'person' by main force, and then refuse them permission to seize objects lying around in plain sight. It is arguable that if the very substantial intrusion implied in the entry and arrest are 'reasonable' in Fourth Amendment terms, then the less intrusive search incident to arrest must also be reasonable.
59
This argument against the Trupiano approach is of little force so long as it is assumed that the police must, in the absence of one of a number of defined exceptions based on 'exigent circumstances,' obtain an arrest warrant before entering a man's house to seize his person. If the Fourth Amendment requires a warrant to enter and seize the person, then it makes sense as well to require a warrant to seize other items that may be on the premises. The situation is different, however, if the police are under no circumstances required to obtain an arrest warrant before entering to arrest a person they have probable cause to believe has committed a felony. If no warrant is ever required to legitimate the extremely serious intrusion of a midnight entry to seize the person, then it can be argued plausibly that a warrant should never be required to legitimate a very sweeping search incident to such an entry and arrest. If the arrest without a warrant is per se reasonable under the Fourth Amendment, then it is difficult to perceive way a search incident in the style of Harris and Rabinowitz is not per se reasonable as well.
60
It is clear, then, that the notion that the warrantless entry of a man's house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man's house without warrant are per se unreasonable in the absence of some one of a number of well defined 'exigent circumstances.' This conflict came to the fore in Chimel v. California, supra. The Court there applied the basic rule that the 'search incident to arrest' is an exception to the warrant requirement and that its scope must therefore be strictly defined in terms of the justifying 'exigent circumstances.' The exigency in question arises from the dangers of harm to the arresting officer and of destruction of evidence within the reach of the arrestee. Neither exigency can conceivably justify the far-ranging searches authorized under Harris and Rabinowitz. The answer of the dissenting opinion of Mr. Justice White in Chimel, supported by no decision of this Court, was that a warrantless entry for the purpose of arrest on probable cause is legitimate and reasonable no matter what the circumstances. 395 U.S., at 776 780, 89 S.Ct., at 2047—2049. From this it was said to follow that the full-scale search incident to arrest was also reasonable since it was a lesser intrusion. 395 U.S., at 772—775, 89 S.Ct., at 2045 2047.
61
The same conflict arises in this case. Since the police knew of the presence of the automobile and planned all along to seize it, there was no 'exigent circumstance' to justify their failure to obtain a warrant. The application of the basic rule of Fourth Amendment law therefore requires that the fruits of the warrantless seizure be suppressed. Mr. Justice WHITE's dissenting opinion, however, argues once again that so long as the police could reasonably make a warrantless nighttime entry onto Coolidge's property in order to arrest him, with no showing at all of an emergency, then it is absurd to prevent them from seizing his automobile as evidence of the crime.
62
Mr. Justice WHITE takes a basically similar approach to the question whether the search of the automobile in this case can be justified under Carroll v. United States, supra, and Chambers v. Maroney, supra. Carroll, on its face, appears to be a classic example of the doctrine that warrantless searches are per se unreasonable in the absence of exigent circumstances. Every word in the opinion indicates the Court's adherence to the underlying rule and its care in delineating a limited exception. Read thus, the case quite evidently does not extend to the situation at bar. Yet if we take the viewpoint of a judge called on only to decide in the abstract, after the fact, whether the police have behaved 'reasonably' under all the circumstances—in short if we simply ignore the warrant requirement—Carroll comes to stand for something more. The stopping of a vehicle on the open highway and a subsequent search amount to a major interference in the lives of the occupants. Carroll held such an interference to be reasonable without a warrant, given probable cause. It may be thought to follow a fortiori that the seizure and search here where there was no stopping and the vehicle was unoccupied—were also reasonable, since the intrusion was less substantial, although there were no exigent circumstances whatever. Using reasoning of this sort, it is but a short step to the position that it is never necessary for the police to obtain a warrant before searching and seizing an automobile, provided that they have probable cause. And Mr. Justice WHITE appears to adopt exactly this view when he proposes that the Court should 'treat searches of automobiles as we do the arrest of a person.'
63
If we were to accept Mr. Justice WHITE's view that warrantless entry for purposes of arrest and warrantless seizure and search of automobiles are per se reasonable, so long as the police have probable cause, it would be difficult to see the basis for distinguishing searches of houses and seizures of effects. If it is reasonable for the police to make a warrantless nighttime entry for the purpose of arresting a person in his bed, then surely it must be reasonable as well to make a warrantless entry to search for and seize vital evidence of a serious crime. If the police may, without a warrant, seize and search an unoccupied vehicle parked on the owner's private property, not being used for any illegal purpose, then it is hard to see why they need a warrant to seize and search a suitcase, a trunk, a shopping bag, or any other portable container in a house, garage, or back yard.
64
The fundamental objection, then, to the line of argument adopted by Mr. Justice WHITE in his dissent in this case and in Chimel v. California, supra, is that it proves too much. If we were to agree with Mr. Justice WHITE that the police may, whenever they have probable cause, make a warrantless entry for the purpose a making an arrest, and that seizures and searches of automobiles are likewise per se reasonable given probable cause, then by the same logic any search or seizure could be carried out without a warrant, and we would simply have read the Fourth Amendment out of the Constitution. Indeed, if Mr. Justice WHITE is correct that it has generally been assumed that the Fourth Amendment is not violated by the warrantless entry of a man's house for purposes of arrest, it might be wise to re-examine the assumption. Such a re-examination 'would confront us with a grave constitutional question, namely, whether the forceful nighttime entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a felony, under circumstances where no reason appears why an arrest warrant could not have been sought, is consistent with the Fourth Amendment.' Jones v. United States, 357 U.S., at 499—500, 78 S.Ct., at 1257.
65
None of the cases cited by Mr. Justice WHITE disposes of this 'grave constitutional question.' The case of Warden v. Hayden, supra, where the Court elaborated a 'hot pursuit' justification for the police entry into the defendant's house without a warrant for his arrest, certainly stands by negative implication for the proposition that an arrest warrant is required in the absence of exigent circumstances. See also Davis v. Mississippi, 394 U.S. 721, 728, 89 S.Ct. 1394, 1398, 22 L.Ed.2d 676; Wong Sun v. United States, 371 U.S., at 481—482, 83 S.Ct., at 413—415. The Court of Appeals for the District of Columbia Circuit, sitting en banc, has unanimously reached the same conclusion.36 But we find it unnecessary to decide the question in this case. The rule that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions,'37 is not so frail that its continuing vitality depends on the fate of a supposed doctrine of warrantless arrest. The warrant requirement has been a valued part of our constitutional law for decades, and it has determined the result in scores and scores of cases in courts all over this country. It is not an inconvenience to be somehow 'weighed' against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the 'well-intentioned but mistakenly over-zealous, executive officers'38 who are a part of any system of law enforcement. If it is to be a true guide to constitutional police action, rather than just a pious phrase, then '(t)he exceptions cannot be enthroned into the rule.' United States v. Rabinowitz, supra, at 80, 70 S.Ct., at 441 (Frankfurter, J., dissenting). The confinement of the exceptions to their appropriate scope was the function of Chimel v. California, supra, where we dealt with the assumption that a search 'incident' to a lawful arrest may encompass all of the premises where the arrest occurs, however spacious. The 'plain view' exception is intimately linked with the search-incident exception, as the cases discussed in Part C above have repeatedly shown. To permit warrantless plain-view seizures without limit would be to undo much of what was decided in Chimel, as the similar arguments put forward in dissent in the two cases indicate clearly enough.
66
Finally, a word about Trupiano v. United States, supra. Our discussion of 'plain view' in Part C above corresponds with that given in Trupiano. Here, as in Trupiano, the determining factors are advance police knowledge of the existence and location of the evidence, police intention to seize it, and the ample opportunity for obtaining a warrant. See 334 U.S., at 707—708, 68 S.Ct., at 1233—1234 and n. 27, supra. However, we do not 'reinstate' Trupiano, since we cannot adopt all its implications. To begin with, in Chimel v. California, supra, we held that a search of the person of an arrestee and of the area under his immediate control could be carried out without a warrant. We did not indicate there, and do not suggest here, that the police must obtain a warrant if they anticipate that they will find specific evidence during the course of such a search. See n. 24, supra. And as to the automobile exception, we do not question the decisions of the Court in Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, and Chambers v. Maroney, supra, although both are arguably inconsistent with Trupiano.
67
Mr. Justice WHITE's dissent characterizes the coexistence of Chimel, Cooper, Chambers, and this case as 'punitive,' 'extravagant,' 'inconsistent,' 'without apparent reason,' 'unexplained,' and 'inexplicable.' Post, at 517, 519, 521. It is urged upon us that we have here a 'ready opportunity, one way or another, to bring clarity and certainty to a body of law that lower courts and law enforcement officials often find confusing.' Post, at 521. Presumably one of the ways in which Mr. Justice WHITE believes we might achieve clarity and certainty would be the adoption of his proposal that we treat entry for purposes of arrest and seizure of an automobile alike as per se reasonable on probable cause. Such an approach might dispose of this case clearly and certainly enough, but, as we have tried to show above, it would cast into limbo the whole notion of a Fourth Amendment warrant requirement. And it is difficult to take seriously Mr. Justice WHITE's alternative suggestion that clarity and certainty, as well as coherence and credibility, might also be achieved by modifying Chimel and overruling Chambers and Cooper. Surely, quite apart from his strong disagreement on the merits, he would take vehement exception to any such cavalier treatment of this Court's decisions.
68
Of course, it would be nonsense to pretend that our decision today reduces Fourth Amendment law to complete order and harmony. The decisions of the Court over the years point in differing directions and differ in emphasis. No trick of logic will make them all perfectly consistent. But it is no less nonsense to suggest, as does Mr. Justice WHITE, post, at 521, 520 that we cease today 'to strive for clarity and consistency of analysis,' or that we have 'abandoned any attempt' to find reasoned distinctions in this area. The time is long past when men believed that development of the law must always proceed by the smooth incorporation of new situations into a single coherent analytical framework. We need accept neither the 'clarity and certainty' of a Fourth Amendment without a warrant requirement nor the facile consistency obtained by wholesale overruling of recently decided cases. A remark by Mr. Justice Harlan concerning the Fifth Amendment is applicable as well to the Fourth:
69
'There are those, I suppose, who would put the 'liberal construction' approach of cases like Miranda (v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694,) and Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), side-by-side with the balancing approach of Schmerber (v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908,) and perceive nothing more subtle than a set of constructional antinomies to be utilized as convenient bootstraps to one result or another. But I perceive in these cases the essential tension that springs from the uncertain mandate which this provision of the Constitution gives to this Court.' California v. Byers, 402 U.S. 449—450, 91 S.Ct. 1535, 1548, 29 L.Ed.2d 9 (concurring in judgment).
70
We are convinced that the result reached in this case is correct, and that the principle it reflects—that the police must obtain a warrant when they intend to seize an object outside the scope of a valid search incident to arrest—can be easily understood and applied by courts and law enforcement officers alike. It is a principle that should work to protect the citizen without overburdening the police, and a principle that preserves and protects the guarantees of the Fourth Amendment.
III
71
Because of the prospect of a new trial, the efficient administration of justice counsels consideration of the second substantial question under the Fourth and Fourteenth Amendments presented by this case. The petitioner contends that when the police obtained a rifle and articles of his clothing from his home on the night of Sunday, February 2, 1964, while he was being interrogated at the police station, they engaged in a search and seizure violative of the Constitution. In order to understand this contention, it is necessary to review in some detail the circumstances of the February 2 episode.
A.
72
The lie-detector test administered to Coolidge in Concord on the afternoon of the 2d was inconclusive as to his activities on the night of Pamela Mason's disappearance, but during the course of the test Coolidge confessed to stealing $375 from his employer. After the group returned from Concord to Manchester, the interrogation about Coolidge's movements on the night of the disappearance continued, and Coolidge apparently made a number of statements which the police immediately checked out as best they could. The decision to send two officers to the Coolidge house to speak with Mrs. Coolidge was apparently motivated in part by a desire to check his story against whatever she might say, and in part by the need for some corroboration of his admission to the theft from his employer. The trial judge found as a fact, and the record supports him, that at the time of the visit the police knew very little about the weapon that had killed Pamela Mason. The bullet that had been retrieved was of small caliber, but the police were unsure whether the weapon was a rifle or a pistol. During the extensive investigation following the discovery of the body, the police had made it a practice to ask all those questioned whether they owned any guns, and to ask the owners for permission to run tests on those that met the very general description of the murder weapon. The trial judge found as a fact that when the police visited Mrs. Coolidge on the night of the 2d, they were unaware of the previous visit during which Coolidge had shown other officers three guns, and that they were not motivated by a desire to find the murder weapon.
73
The two plainclothesmen asked Mrs. Coolidge whether her husband had been at home on the night of the murder victim's disappearance, and she replied that he had not. They then asked her if her husband owned any guns. According to her testimony at the pretrial suppression hearing, she replied, 'Yes, I will get them in the bedroom.' One of the officers replied, 'We will come with you.' The three went into the bedroom where Mrs. Coolidge took all four guns out of the closet. Her account continued:
74
'A. I believe I asked if they wanted the guns. One gentleman said, 'No;' then the other gentleman turned around and said, 'We might as well take them.' I said, 'If you would like them, you may take them.'
75
'Q. Did you go further and say, 'We have nothing to hide.'?
76
'A. I can't recall if I said that then or before. I don't recall.
77
'Q. But at some time you indicated to them that as far as you were concerned you had nothing to hide, and they might take what they wanted?
78
'A. That was it.
79
'Q. Did you feel at that time that you had something to hide?
80
'A. No.'
81
The two policemen also asked Mrs. Coolidge what her husband had been wearing on the night of the disappearance. She then produced four pairs of trousers and indicated that her husband had probably worn either of two of them on that evening. She also brought out a hunting jacket. The police gave her a receipt for the guns and the clothing, and, after a search of the Coolidge cars not here in issue, took the various articles to the police station.
B
82
The first branch of the petitioner's argument is that when Mrs. Coolidge brought out the guns and clothing and then handed them over to the police, she was acting as an 'instrument' of the officials, complying with a 'demand' made by them. Consequently, it is argued, Coolidge was the victim of a search and seizure within the constitutional meaning of those terms. Since we cannot accept this interpretation of the facts, we need not consider the petitioner's further argument that Mrs. Coolidge could not or did not 'waive' her husband's constitutional protection against unreasonable searches and seizures.
83
Had Mrs. Coolidge, wholly on her own initiative, sought out her husband's guns and clothing and then taken them to the police station to be used as evidence against him, there can be no doubt under existing law that the articles would later have been admissible in evidence. Cf. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048. The question presented here is whether the conduct of the police officers at the Coolidge house was such as to make her actions their actions for purposes of the Fourth and Fourteenth Amendments and their attendant exclusionary rules. The test, as the petitioner's argument suggests, is whether Mrs. Coolidge, in light of all the circumstances of the case, must be regarded as having acted as an 'instrument' or agent of the state when she produced her husband's belongings. Cf. United States v. Goldberg, 330 F.2d 30 (CA3), cert. denied, 377 U.S. 953, 84 S.Ct. 1630, 12 L.Ed.2d 497 (1964); People v. Tarantino, 45 Cal.2d 590, 290 P.2d 505 (1955); see Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520; Gambino v. United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293.
84
In a situation like the one before us there no doubt always exist forces pushing the spouse to cooperate with the police. Among these are the simple but often powerful convention of openness and honesty, the fear that secretive behavior will intensify suspicion, and uncertainty as to what course is most likely to be helpful to the absent spouse. But there is nothing constitutionally suspect in the existence, without more, of these incentives to full disclosure or active cooperation with the police. The exclusionary rules were fashioned 'to prevent, not to repair,' and their target is official misconduct. They are 'to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.' Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669. But it is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals. If, then, the exclusionary rule is properly applicable to the evidence taken from the Coolidge house on the night of February 2, it must be upon the basis that some type of unconstitutional police conduct occurred.
85
Yet it cannot be said that the police should have obtained a warrant for the guns and clothing before they set out to visit Mrs. Coolidge, since they had no intention of rummaging around among Coolidge's effects or of dispossessing him of any of his property. Nor can it be said that they should have obtained Coolidge's permission for a seizure they did not intend to make. There was nothing to compel them to announce to the suspect that they intended to question his wife about his movements on the night of the disappearance or about the theft from his employer. Once Mrs. Coolidge had admitted them, the policemen were surely acting normally and properly when they asked her, as they had asked those questioned earlier in the investigation, including Coolidge himself, about any guns there might be in the house. The question concerning the clothes Coolidge had been wearing on the night of the disappearance was logical and in no way coercive. Indeed, one might doubt the competence of the officers involved had they not asked exactly the questions they did ask. And surely when Mrs. Coolidge of her own accord produced the guns and clothes for inspection, rather than simply describing them, it was not incumbent on the police to stop her or avert their eyes.
86
The crux of the petitioner's argument must be that when Mrs. Coolidge asked the policemen whether they wanted the guns, they should have replied that they could not take them, or have first telephoned Coolidge at the police station and asked his permission to take them, or have asked her whether she had been authorized by her husband to release them. Instead, after one policeman had declined the offer, the other turned and said, 'We might as well take them,' to which Mrs. Coolidge replied, 'If you would like them, you may take them.'
87
In assessing the claim that this course of conduct amounted to a search and seizure, it is well to keep in mind that Mrs. Coolidge described her own motive as that of clearing her husband, and that she believed that she had nothing to hide. She had seen her husband himself produce his guns for two other policemen earlier in the week, and there is nothing to indicate that she realized that he had offered only three of them for inspection on that occasion. The two officers who questioned her behaved, as her own testimony shows, with perfect courtesy. There is not the slightest implication of an attempt on their part to coerce or dominate her, or, for that matter, to direct her actions by the more subtle techniques of suggestion that are available to officials in circumstances like these. To hold that the conduct of the police here was a search and seizure would be to hold, in effect, that a criminal suspect has constitutional protection against the adverse consequences of a spontaneous, good-faith effort by his wife to clear him of suspicion.39
88
The judgment is reversed and the case is remanded to the Supreme Court of New Hampshire for further proceedings not inconsistent with this opinion.
89
It is so ordered.
90
Judgment reversed and case remanded.
91
Mr. Justice HARLAN, concurring.
92
From the several opinions that have been filed in this case it is apparent that the law of search and seizure is due for an overhauling. State and federal law enforcement officers and prosecutorial authorities must find quite intolerable the present state of uncertainty, which extends even to such an everyday question as the circumstances under which police may enter a man's property to arrest him and seize a vehicle believed to have been used during the commission of a crime.
93
I would begin this process of re-evaluation by overruling Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The former of these cases made the federal 'exclusionary rule' applicable to the States. The latter forced the States to follow all the ins and outs of this Court's Fourth Amendment decisions, handed down in federal cases.
94
In combination Mapp and Ker have been primarily responsible for bringing about serious distortious and incongruities in this field of constitutional law. Basically these have had two aspects, as I believe an examination of our more recent opinions and certiorari docket will show. First, the States have been put in a federal mold with respect to this aspect of criminal law enforcement, thus depriving the country of the opportunity to observe the effects of different procedures in similar settings. See, e.g., Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665 (1970), suggesting that the assumed 'deterrent value' of the exclusionary rule has never been adequately demonstrated or disproved, and pointing out that because of Mapp all comparative statistics are 10 years old and no new ones can be obtained. Second, in order to leave some room for the States to cope with their own diverse problems, there has been generated a tendency to relax federal requirements under the Fourth Amendment, which now govern state procedures as well. For an illustration of that tendency in another constitutional field, again resulting from the infelicitous 'incorporation' doctrine, see Williams v. Florida, 399 U.S. 78, 90 S.Ct., 1893, 26 L.Ed.2d 446 (1970). Until we face up to the basic constitutional mistakes of Mapp and Ker, no solid progress in setting things straight in search and seizure law will, in my opinion, occur.
95
But for Mapp and Ker, I would have little difficulty in voting to sustain this conviction, for I do not think that anything the State did in this case could be said to offend those values which are 'at the core of the Fourth Amendment.' Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949); cf. Irvine v. California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561 (1954); Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952).
96
Because of Mapp and Ker, however, this case must be judged in terms of federal standards, and on that basis I concur, although not without difficulty, in Parts I, II—D, and III of the Court's opinion and in the judgment of the Court.* It must be recognized that the case is a close one. The reason I am tipped in favor of Mr. Justice STEWART's position is that a contrary result in this case would, I fear, go far toward relegating the warrant requirement of the Fourth Amendment to a position of little consequence in federal search and seizure law, a course which seems to me opposite to the one we took in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), two Terms ago.
97
Recent scholarship has suggested that in emphasizing the warrant requirement over the reasonableness of the search the Court has 'stood the fourth amendment on its head' from a historical standpoint. T. Taylor, Two Studies in Constitutional Interpretation 23—24 (1969). This issue is perhaps most clearly presented in the case of a warrantless entry into a man's home to arrest him on probable cause. The validity of such entry was left open in Jones v. United States, 357 U.S. 493, 499—500, 78 S.Ct. 1253, 1257—1258, 2 L.Ed.2d 514 (1958), and although my Brothers WHITE and STEWART both feel that their contrary assumptions on this point are at the root of their disagreement in this case, ante, at 477—479; Post, at 510—512, 521, the Court again leaves the issue open. Ante, at 481. In my opinion it does well to do so. This matter should not be decided in a state case not squarely presenting the issue and where it was not fully briefed and argued. I intimate no view on this subject, but until it is ripe for decision, I hope in a federal case, I am unwilling to lend my support to setting back the trend of our recent decisions.
98
Mr. Chief Justice BURGER, dissenting in part and concurring in part.
99
I join the dissenting opinion of Mr. Justice WHITE and in Parts II and III of Mr. Justice BLACK's concurring and dissenting opinion. I also agree with most of what is said in Part I of Mr. Justice BLACK's opinion, but I am not prepared to accept the proposition that the Fifth Amendment requires the exclusion of evidence seized in violation of the Fourth Amendment. I join in Part III of Mr. Justice STEWART's opinion.
100
This case illustrates graphically the monstrous price we pay for the exclusionary rule in which we seem to have imprisoned ourselves. See my dissent in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619.
101
On the merits of the case I find not the slightest basis in the record to reverse this conviction. Here again the Court reaches out, strains, and distorts rules that were showing some signs of stabilizing, and directs a new trial which will be held more than seven years after the criminal acts charged.
102
Mr. Justice Stone, of the Minnesota Supreme Court, called the kind of judicial functioning in which the Court indulges today 'bifurcating elements too infinitesimal to be split.'
103
Mr. Justice BLACK, concurring and dissenting.
104
After a jury trial in a New Hampshire state court, petitioner was convicted of murder and sentenced to life imprisonment. Holding that certain evidence introduced by the State was seized during an 'unreasonable' search and that the evidence was inadmissible under the judicially created exclusionary rule of the Fourth Amendment, the majority reverses that conviction. Believing that the search and seizure here was reasonable and that the Fourth Amendment properly construed contains no such exclusionary rule, I dissent.
105
The relevant facts are these. Pamela Mason, a 14-year-old school girl, lived with her mother and younger brother in Manchester, New Hampshire. She occasionally worked after school as a baby sitter and sought such work by posting a notice on a bulletin board in a local laundromat. On January 13, 1964, she arrived home from school about 4:15 p.m. Pamela's mother told her that a man had called seeking a babysitter for that evening and said that he would call again later. About 4:30 p.m. after Pamela's mother had left for her job as a waitress at a nearby restaurant, Pamela received a phone call. Her younger brother, who answered the call but did not overhear the conversation, later reported that the caller was a man. After the call, Pamela prepared dinner for her brother and herself, then left the house about 6 p.m. Her family never again saw her alive. Eight days later, on January 21, 1964, Pamela's frozen body was discovered in a snowdrift beside an interstate highway a few miles from her home. Her throat had been slashed and she had been shot in the head. Medical evidence showed that she died some time between 8 and 10 p.m. on January 13, the night she left home.
106
A manhunt ensued. The witnesses informed the police that about 9:30 p.m. on the night of the murder they had stopped to offer assistance to a man in a 1951 Pontiac automobile which was parked beside the interstate highway near the point where the little girl's dead body was later found. Petitioner came under suspicion seven days after the body was discovered when one of his neighbors reported to the police that petitioner had been absent from his home between 5 and 11 p.m. on January 13, the night of the murder. Petitioner owned a 1951 Pontiac automobile that matched the description of the car which the two witnesses reported seeing parked where the girl's body had been found. The police first talked with petitioner at his home on the evening of January 28, fifteen days after the girl was killed, and arranged for him to come to the police station the following Sunday, February 2, 1964. He went to the station that Sunday and answered questions concerning his activities on the night of the murder, telling the police that he had been shopping in a neighboring town at the time the murder was committed. During questioning, petitioner confessed to having committed an unrelated larceny from his employer and was held overnight at the police station in connection with that offense. On the next day, he was permitted to go home.
107
While petitioner was being questioned at the police station on February 2, two policemen went to petitioner's home to talk with his wife. They asked what firearms the petitioner owned and his wife produced two shotguns and two rifles which she voluntarily offered to the police. Upon examination the University of Rhode Island Criminal Investigation Laboratory concluded that one of the firearms, a Mossberg .22-caliber rifle, had fired the bullet found in the murdered girl's brain.
108
Petitioner admitted that he was a frequent visitor to the laundromat where Pamela posted her babysitting notice and that he had been there on the night of the murder. The following day a knife belonging to petitioner, which could have inflicted the murdered girl's knife wounds, was found near that laundromat. The police also learned that petitioner had unsuccessfully contacted four different persons before the girl's body had been discovered in an attempt to fabricate an alibi for the night of January 13.
109
On February 19, 1964, all this evidence was presented to the state attorney general who was authorized under New Hampshire law to issue arrest and search warrants. The attorney general considered the evidence and issued a warrant for petitioner's arrest and four search warrants including a warrant for the seizure and search of petitioner's Pontiac automobile.
110
On the day the warrants issued, the police went to the petitioner's residence and placed him under arrest. They took charge of his 1951 Pontiac which was parked in plain view in the driveway in front of the house, and two hours later, towed the car to the police station. During the search of the automobile at the station, the police obtained vacuum sweepings of dirt and other fine particles which matched like sweepings taken from the clothes of the murdered girl. Based on the similarity between the sweepings taken from petitioner's automobile and those taken from the girl's clothes, experts who testified at trial concluded that Pamela had been in the petitioner's car. The rifle given to the police by petitioner's wife was also received in evidence.
111
Petitioner challenges his conviction on the ground that the rifle obtained from his wife and the vacuum sweepings taken from his car were seized in violation of the Fourth Amendment and were improperly admitted at trial. With respect to the rifle voluntarily given to the police by petitioner's wife, the majority holds that it was properly received in evidence. I agree. But the Court reverses petitioner's conviction on the ground that the sweepings taken from his car were seized during an illegal search and for this reason the admission of the sweepings into evidence violated the Fourth Amendment. I dissent.
112
* The Fourth Amendment prohibits unreasonable searches and seizures. The Amendment says nothing about consequences. It certainly nowhere provides for the exclusion of evidence as the remedy for violation. The Amendment states: 'The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' No examination of that text can find an exclusionary rule by a mere process of construction. Apparently the first suggestion that the Fourth Amendment somehow embodied a rule of evidence came in Justice Bradley's majority opinion in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). The holding in that case was that ordinarily a person may not be compelled to produce his private books and papers for use against him as proof of crime. That decision was a sound application of accepted principles of common law and the command of the Fifth Amendment that no person shall be compelled to be a witness against himself. But Justice Bradley apparently preferred to formulate a new exclusionary rule from the Fourth Amendment rather than rely on the already existing exclusionary rule contained in the language of the Fifth Amendment. His opinion indicated that compulsory production of such evidence at trial violated the Fourth Amendment. Mr. Justice Miller, with whom Chief Justice Waite joined, concurred solely on the basis of the Fifth Amendment, and explicitly refused to go along with Justice Bradley's novel reading of the Fourth Amendment. It was not until 1914, some 28 years after Boyd and when no member of the Boyd Court remained, that the Court in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, stated that the Fourth Amendment itself barred the admission of evidence seized in violation of the Fourth Amendment. The Weeks opinion made no express confession of a break with the past. But if it was merely a proper reading of the Fourth Amendment, it seems strange that it took this Court nearly 125 years to discover the true meaning of those words. The truth is that the source of the exclusionary rule simply cannot be found in the Fourth Amendment. That Amendment did not when adopted, and does not now, contain any constitutional rule barring the admission of illegally seized evidence.
113
In striking contrast to the Fourth Amendment, the Fifth Amendment states in express, unambiguous terms that no person 'shall be compelled in any criminal case to be a witness against himself.' The Fifth Amendment in and of itself directly and explicitly commands its own exclusionary rule a defendant cannot be compelled to give evidence against himself. Absent congressional action taken pursuant to the Fourth Amendment, if evidence is to be excluded, it must be under the Fifth Amendment, not the Fourth. That was the point so ably made in the concurring opinion of Justice Miller, joined by Chief Justice Waite, in Boyd v. United States, supra, and that was the thrust of my concurring opinion in Mapp v. Ohio, 367 U.S. 643, 661, 81 S.Ct. 1684, 1694, 6 L.Ed.2d 1081 (1961).
114
The evidence seized by breaking into Mrs. Mapp's house and the search of all her possessions, was excluded from evidence, not by the Fourth Amendment which contains no exclusionary rule, but by the Fifth Amendment which does. The introduction of such evidence compels a man to be a witness against himself, and evidence so compelled must be excluded under the Fifth Amendment, not because the Court says so, but because the Fifth Amendment commands it.
115
The Fourth Amendment provides a constitutional means by which the Government can act to obtain evidence to be used in criminal prosecutions. The people are obliged to yield to a proper exercise of authority under that Amendment.1 Evidence properly seized under the Fourth Amendment, of course, is admissible at trial. But nothing in the Fourth Amendment provides that evidence seized in violation of that Amendment must be excluded.
116
The majority holds that evidence it views as improperly seized in violation of its ever changing concept of the Fourth Amendment is inadmissible. The majority treats the exclusionary rule as a judge-made rule of evidence designed and utilized to enforce the majority's own notions of proper police conduct. The Court today announces its new rules of police procedure in the name of the Fourth Amendment, then holds that evidence seized in violation of the new 'guidelines' is automatically inadmissible at trial. The majority does not purport to rely on the Fifth Amendment to exclude the evidence in this case. Indeed it could not. The majority prefers instead to rely on 'changing times' and the Court's role as it sees it, as the administrator in charge of regulating the contacts of officials with citizens. The majority states that in the absence of a better means of regulation, it applies a court-created rule of evidence.
117
I readily concede that there is much recent precedent for the majority's present announcement of yet another new set of police operating procedures. By invoking this rulemaking power found not in the words but somewhere in the 'spirit' of the Fourth Amendment, the Court has expanded that Amendment beyond recognition. And each new step is justified as merely a logical extension of the step before.
118
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. But see Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). No such proceeding was required before or after the adoption of the Fourth Amendment, until this Court decided Aguilar and Spinelli. Likewise, eavesdroppers 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. Berger v. New York, 388 U.S. 41, 70, 87 S.Ct. 1873, 1889, 18 L.Ed.2d 1040 (1967) (Black, J., dissenting); Katz v. United States, 389 U.S. 347, 364, 88 S.Ct. 507, 518, 19 L.Ed.2d 576 (1967) (Black, J., dissenting). 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, 89 S.Ct. 2034, 23 L.Ed.2d 685 (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, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).
119
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 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. It is my conclusion that both the seizure of the rifle offered by petitioner's wife and the seizure of the automobile at the time of petitioner's arrest were consistent with the Fourth Amendment and that the evidence so obtained under the circumstances shown in the record in this case could not be excluded under the Fifth Amendment.
II
120
The majority holds that the warrant authorizing the seizure and search of petitioner's automobile was constitutionally defective and void. With respect to search warrants, the Fourth Amendment provides that 'no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' The majority concedes that the police did show probable cause for the issuance of the warrant. The majority does not contest that the warrant particularly described the place to be searched, and the thing to be seized.
121
But compliance with state law and the requirements of the Fourth Amendment apparently is not enough. The majority holds that the state attorney general's connection with the investigation automatically rendered the search warrant invalid. In the first place, there is no language in the Fourth Amendment which provides any basis for the disqualification of the state attorney general to act as a magistrate. He is a state official of high office. The Fourth Amendment does not indicate that his position of authority over state law enforcement renders him ineligible to issue warrants upon a showing of probable cause supported by oath or affirmation. The majority's argument proceeds on the 'little trial' theory that the magistrate is to sit as a judge and weigh the evidence and practically determine guilt or innocence before issuing a warrant. There is nothing in the Fourth Amendment to support such a magnified view of the magistrate's authority. The state attorney general was not barred by the Fourth Amendment or any other constitutional provision from issuing the warrant.
122
In the second place, the New Hampshire Supreme Court held in effect that the state attorney general's participation in the investigation of the case at the time he issued the search warrant was 'harmless error' if it was error at all. I agree. It is difficult to imagine a clearer showing of probable cause. There was no possibility of prejudice because there was no room for discretion. Indeed, it could be said that a refusal to issue a warrant on the showing of probable cause made in this case would have been an abuse of discretion. In light of the showing made by the police, there is no reasonable possibility that the state attorney general's own knowledge of the investigation contributed to the issuance of the warrant. I see no error in the state attorney general's action. But even if there was error, it was harmless beyond reasonable doubt. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
123
Therefore, it is my conclusion that the warrant authorizing the seizure and search of petitioner's automobile was constitutional under the Fourth Amendment, and that the evidence obtained during that search cannot be excluded under the Fifth Amendment. Moreover, I am of the view that, even if the search warrant had not issued, the search in this case nonetheless would have been constitutional under all three of the principles considered and rejected by the majority.
III
124
It is important to point out that the automobile itself was evidence and was seized as such. Prior to the seizure the police had been informed by two witnesses that on the night of the murder they had seen an automobile parked near the point where the little girl's dead body was later discovered. Their description of the parked automobile matched petitioner's car. At the time of the seizure the identification of petitioner's automobile by the witnesses as the car they had seen on the night of the murder was yet to be made. The police had good reason to believe that the identification would be an important element of the case against the petitioner. Preservation of the automobile itself as evidence was a reasonable motivation for its seizure. Considered in light of the information in the hands of the New Hampshire police at the time of the seizure, I conclude that the seizure and search were constitutional, even had there been no search warrant, for the following among other reasons.
125
* First, the seizure of petitioner's automobile was valid as incident to a lawful arrest. The majority concedes that there was probable cause for petitioner's arrest. Upon arriving at petitioner's residence to make that arrest, the police saw petitioner's automobile which they knew fitted the description of the car observed by two witnesses at the place where the murdered girl's body had been found. The police arrested the petitioner and seized the automobile. The majority holds that because the police had to go into petitioner's residence in order to place petitioner under arrest, the contemporaneous seizure of the automobile outside the house was not incident to that arrest. I cannot accept this elevation of form over reason.
126
After stating that Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), is inapplicable to this case, the majority goes on to formulate and apply a per se rule reaching far beyond Chimel. To do so, the majority employs a classic non sequitur. Because this Court has held that police arresting a defendant on the street in front of his house cannot go into that house and make a general search, it follows, says the majority, that the police having entered a house to make an arrest cannot step outside the house to seize clearly visible evidence. Even though the police, upon entering a doorway to make a valid arrest, would be authorized under the pre-Chimel law the majority purports to apply, to make a five-hour search of a four-room apartment, see Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), the majority holds that the police could not step outside the doorway to seize evidence they passed on their way in. The majority reasons that as the doorway locks the policeman out, once entered, it must lock him in.
127
The test of reasonableness cannot be governed by such arbitrary rules. Each case must be judged on its own particular facts. Here, there was no general exploration, only a direct seizure of important evidence in plain view from both inside as well as outside the house. On the facts of this case, it is my opinion that the seizure of petitioner's automobile was incident to his arrest and was reasonable under the terms of the Fourth Amendment.
B
128
Moreover, under our decision last Term in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the police were entitled not only to seize petitioner's car but also to search the car after it had been taken to the police station. The police had probable cause to believe that the car had been used in the commission of the murder and that it contained evidence of the crime. Under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and Chambers v. Maroney, supra, such belief was sufficient justification for the seizure and the search of petitioner's automobile.
129
The majority reasons that the Chambers and Carroll rationale, based on the mobility of automobiles, is inapplicable here because the petitioner's car could have been placed under guard and, thereby, rendered immobile. But this Court explicitly rejected such reasoning in Chambers: 'For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. * * * The probable-cause factor still obtained at the station house and so did the mobility of the car * * *.' 399 U.S., at 52, 90 S.Ct., at 1981. This Court held there that the delayed search at the station house, as well as an immediate search at the time of seizure, was reasonable under the Fourth Amendment.
130
As a second argument for holding that the Chambers decision does not apply to this case, the majority reasons that the evidence could not have been altered or the car moved because petitioner was in custody and his wife was accompanied by police, at least until the police towed the car to the station. But the majority's reasoning depends on two assumptions: first, that the police should, or even could, continue to keep petitioner's wife effectively under house arrest; and, second, that no one else had any motivation to alter or remove the car. I cannot accept the first assumption, nor do I believe that the police acted unreasonably in refusing to accept the second.2
C
131
I believe the seizure of petitioner's automobile was valid under the well-established right of the police to seize evidence in plain view at the time and place of arrest. The majority concedes that the police were rightfully at petitioner's residence to make a valid arrest at the time of the seizure. To use the majority's words, the 'initial intrusion' which brought the police within plain view of the automobile was legitimate. The majority also concedes that the automobile was 'plainly visible both from the street and from inside the house where Coolidge was actually arrested,' ante, at 448, and that the automobile itself was evidence which the police had probable cause to seize. Ante, at 464. Indeed, the majority appears to concedes that the seizure of petitioner's automobile was valid under the doctrine upholding seizures of evidence in plain view at the scene of arrest, at least as it stood before today. Ante, at 465—466 n. 24.
132
However, even after conceding that petitioner's automobile itself was evidence of the crime, that the police had probable cause to seize it as such, and that the automobile was in plain view at the time and place of arrest, the majority holds the seizure to be a violation of the Fourth Amendment because the discovery of the automobile was not 'inadvertent.' The majority confidently states: 'What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused.' But the prior holdings of this Court not only fail to support the majority statement they flatly contradict it. One need look no further than the cases cited in the majority opinion to discover the invalidity of that assertion.
133
In one of these cases, Ker v. California 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), the police observed the defendant's participation in an illegal marihuana transaction, then went to his apartment to arrest him. After entering the apartment, the police saw and seized a block of marihuana as they placed the defendant under arrest. This Court upheld that seizure on the ground that the police were justifiably in the defendant's apartment to make a valid arrest, there was no search because the evidence was in plain view, and the seizure of such evidence was authorized when incident to a lawful arrest. The discovery of the marihuana there could hardly be described as 'inadvertent.'3
134
In Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927), also cited by the majority, the Court upheld the seizure of business records as being incident to a valid arrest for operating an illegal retail whiskey enterprise. The records were discovered in plain view. I cannot say that the seizure of business records from a place of business during the course of an arrest for operating an illegal business was 'inadvertent.'4
135
The majority confuses the historically justified right of the police to seize visible evidence of the crime in open view at the scene of arrest with the 'plain view' exception to the requirement of particular description in search warrants. The majority apparently reasons that unless the seizure made pursuant to authority conferred by a warrant is limited to the particularly described object of seizure, the warrant will become a general writ of assistance. Evidently, as a check on the requirement of particular description in search warrants, the majority announces a new rule that items not named in a warrant cannot be seized unless their discovery was unanticipated or 'inadvertent.'5 The majority's concern is with the scope of the intrusion authorized by a warrant. But the right to seize items properly subject to seizure because in open view at the time of arrest is quite independent of any power to search for such items pursuant to a warrant. The entry in the present case did not depend for its authority on a search warrant but was concededly authorized by probable cause to effect a valid arrest. The intrusion did not exceed that authority. The intrusion was limited in scope to the circumstances which justified the entry in the first place—the arrest of petitioner. There was no general search; indeed, there was no search at all. The automobile itself was evidence properly subject to seizure and was in open view at the time and place of arrest.6
136
Only rarely can it be said that evidence seized incident to an arrest is truly unexpected or inadvertent. Indeed, if the police officer had no expectation of discovering weapons, contraband, or other evidence, he would make no search. It appears to me that the rule adopted by the Court today, for all practical purposes, abolishes seizure incident to arrest. The majority rejects the test of reasonableness provided in the Fourth Amendment and substitutes a per se rule—if the police could have obtained a warrant and did not, the seizure, no matter how reasonable, is void. But the Fourth Amendment does not require that every search be made pursuant to a warrant. It prohibits only 'unreasonable searches and seizures.' The relevant test is not the reasonableness of the opportunity to procure a warrant, but the reasonableness of the seizure under all the circumstances. The test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts.
137
For all the reasons stated above, I believe the seizure and search of petitioner's car was reasonable and, therefore, authorized by the Fourth Amendment. The evidence so obtained violated neither the Fifth Amendment which does contain an exclusionary rule, nor the Fourth Amendment which does not. The jury of petitioner's peers, as conscious as we of the awesome gravity of their decision, heard that evidence and found the petitioner guilty of murder. I cannot in good conscience upset that verdict.
138
Mr. Justice BLACKMUN joins Mr. Justice BLACK in Parts II and III of this opinion and in that portion of Part I thereof which is to the effect that the Fourth Amendment supports no exclusionary rule.
139
Mr. Justice WHITE, with whom THE CHIEF JUSTICE joins, concurring and dissenting.
140
I would affirm the judgment. In my view, Coolidge's Pontiac was lawfully seized as evidence of the crime in plain sight and thereafter was lawfully searched under Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). I am therefore in substantial disagreement with Parts II—C and II—D of the Court's opinion. Neither do I agree with Part II-B, and I can concur only in the result as to Part III.
141
* The Fourth Amendment commands that the public shall be secure in their 'persons, houses, papers, and effects, against unreasonable searches and seizures * * *.' As to persons, the overwhelming weight of authority is that a police officer may make an arrest without a warrant when he has probable cause to believe the suspect has committed a felony.1 The general rule also is that upon the lawful arrest of a person, he and the area under his immediate control may be searched and contraband or evidence seized without a warrant. The right 'to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime * * * has been uniformly maintained in many cases.' Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652 (1914). Accord, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).
142
With respect to houses and other private places, the general rule is otherwise: a search is invalid unless made on probable cause and under the authority of a warrant specifying the area to be searched and the objects to be seized. There are various exceptions to the rule, however, permitting warrantless entries and limited searches, the most recurring being the arrest without a warrant.
143
The case before us concerns the protection offered by the Fourth Amendment to 'effects' other than person papers or documents. It is clear that effects may not be seized without probable cause but the law as to when a warrant is required to validate their seizure is confused and confusing. Part of the difficulty derives from the fact that effects enjoy derivative protection when located in a house or other area within reach of the Fourth Amendment. Under existing doctrine, effects seized in warrantless, illegal searches of houses are fruits of a constitutional violation and may not be received in evidence. But is a warrant required to seize contraband or criminal evidence when it is found by officers at a place where they are legally entitled to be at the time? Before a person is deprived of his possession or right to possession of his effects, must a magistrate confirm that what the officer has legally seen (and would be permitted to testify about, if relevant and material) is actually contraband or criminal evidence?
144
The issue arises in different contexts. First, the effects may be found on public property. Suppose police are informed that important evidence has been secreted in a public park. A search is made and the evidence found. Although the evidence was hidden rather than abandoned, I had not thought a search warrant was required for officers to make a seizure, see United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927) (boat seized on public waters);2 Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924) (liquor seized in open field); any more than a warrant is needed to seize an automobile which is itself evidence of crime and which is found on a public street or in a parking lot. See Cooper v. California, supra.
145
Second, the items may be found on the premises of a third party who gives consent for an official search but who has no authority to consent to seizure of another person's effects. Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), would seem to settle the validity of the seizure without a warrant as long as the search itself involves no Fourth Amendment violation.
146
Third, the police may arrest a suspect in his home and in the course of a properly limited search discover evidence of crime. The line of cases from Weeks v. United States, supra, to Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), had recognized the rule that upon arrest searches of the person and of adjacent areas were reasonable, and Harris had approved an incidental search of broad scope. In the next Term, however, Trupiano v. United States, 334 U.s. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948), departed from the Harris approach. In Trupiano, officers, with probable cause to arrest, entered property and arrested the defendant while he was operating an illegal still. The still was seized. Time and circumstance would have permitted the officers to secure both arrest and search warrants, but they had obtained neither. The Court did not disturb seizure of the person without warrant but invalidated seizure of the still since the officers could have had a warrant but did not. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), however, returned to the rule that the validity of searches incident to arrest does not depend on the practicability of securing a warrant. And, while Chimel v. California, supra, narrowed the permissible scope of incident searches to the person and the immediate area within reach of the defendant, it did not purport to reestablish the Trupiano rule that searches accompanying arrests are invalid if there is opportunity to get a warrant.
147
Finally, officers may be on a suspect's premises executing a search warrant and in the course of the authorized search discover evidence of crime not covered by the warrant. Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231(1927), flatly held that legal presence under a warrant did not itself justify the seizure of such evidence. However, seizure of the same evidence was permitted because it was found in plain sight in the course of making an arrest and an accompanying search. It is at least odd to me to permit plain-sight seizures arising in connection with warrantless arrests, as the long line of cases ending with Chimel has done, or arising in the course of a hot-pursuit search for a felon, Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Hester v. United States, supra; and yet forbid the warrantless seizure of evidence in plain sight when officers enter a house under a search warrant that is perfectly valid but does not cover the items actually seized. I have my doubts that this aspect of Marron can survive later cases in this Court, particularly Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477 (1946), vacated on other grounds, 330 U.S. 800, 67 S.Ct. 857, 91 L.Ed. 1259 (1947), where federal investigators seized a cancelled check evidencing a crime that had been observed during the course of an otherwise lawful search. See also Stanley v. Georgia, 394 U.S. 557, 569, 89 S.Ct. 1243, 1250, 22 L.Ed.2d 542 (1969) (Stewart, J., concurring in result). Cf. Chimel v. California, supra; Warden v. Hayden, supra; Frazier v. Cupp, supra. Apparently the majority agrees, for it lumps plain-sight seizures in such circumstances along with other situations where seizures are made after a legal entry.
148
In all of these situations, it is apparent that seizure of evidence without a warrant is not itself an invasion either of personal privacy or of property rights beyond that already authorized by law. Only the possessory interest of a defendant in his effects is implicated. And in these various circumstances, at least where the discovery of evidence is 'inadvertent,' the Court would permit the seizure because, it is said, 'the minor peril to Fourth Amendment protections' is overridden by the 'major gain in effective law enforcement' inherent in avoiding the 'needless inconvenience' of procuring a warrant. Ante, at 467, 468. I take this to mean that both the possessory interest of the defendant and the importance of having a magistrate confirm that what the officer saw with his own eyes is in fact contraband or evidence of crime are not substantial constitutional considerations. Officers in these circumstances need neither guard nor ignore the evidence while a warrant is sought. Immediate seizure is justified and reasonable under the Fourth Amendment.
149
The Court would interpose in some or all of these situations, however, a condition that the discovery of the disputed evidence be 'inadvertent.' If it is 'anticipated,' that is if 'the police know in advance the location of the evidence and intend to seize it,' the seizure is invalid. Id., at 470.
150
I have great difficulty with this approach. Let us suppose officers secure a warrant to search a house for a rifle. While staying well within the range of a rifle search, they discover two photographs of the murder victim, both in plain sight in the bedroom. Assume also that the discovery of the one photograph was inadvertent but finding the other was anticipated. The Court would permit the seizure of only one of the photographs. But in terms of the 'minor' peril to Fourth Amendment values there is surely no difference between these two photographs: the interference with possession is the same in each case and the officers' appraisal of the photograph they expected to see is no less reliable than their judgment about the other. And in both situations the actual inconvenience and danger to evidence remain identical if the officers must depart and secure a warrant. The Court, however, states that the State will suffer no constitutionally cognizable inconvenience from invalidating anticipated seizures since it had probable cause to search for the items seized and could have included them in a warrant.
151
This seems a punitive and extravagant application of the exclusionary rule. If the police have probable cause to search for a photograph as well as a rifle and they proceed to seek a warrant, they could have no possible motive for deliberately including the rifle but omitting the photograph. Quite the contrary is true. Only oversight or careless mistake would explain the omission in the warrant application if the police were convinced they had probable cause to search for the photograph. Of course, they may misjudge the facts and not realize they have probable cause for the picture, or the magistrate may find against them and not issue a warrant for it. In either event the officers may validly seize the photograph for which they had no probable cause to search but the other photograph is excluded from evidence when the Court subsequently determines that the officers, after all, had probable cause to search for it.
152
More important, the inadvertence rule is unnecessary to further any Fourth Amendment ends and will accomplish nothing. Police with a warrant for a rifle may search only places where rifles might be and must terminate the search once the rifle is found; the inadvertence rule will in no way reduce the number of places into which they may lawfully look. So, too, the areas of permissible search incident to arrest are strictly circumscribed by Chimel. Excluding evidence seen from within those areas can hardly be effective to operate to prevent wider, unauthorized searches. If the police stray outside the scope of an authorized Chimel search they are already in violation of the Fourth Amendment, and evidence so seized will be excluded; adding a second reason for excluding evidence hardly seems worth the candle. Perhaps the Court is concerned that officers, having the right to intrude upon private property to make arrests, will use that right as a pretext to obtain entry to search for objects in plain sight, cf. Chimel v. California, supra, 395 U.S., at 767, 89 S.Ct., at 2042, but, if so, such a concern is unfounded. The reason is that under Chimel the police can enter only into those portions of the property into which entry is necessary to effect the arrest. Given the restrictions of Chimel, the police face a substantial risk that in effecting an arrest and a search incident thereto they will never enter into those portions of the property from which they can plainly see the objects for which they are searching and that, if they do not, those objects will be destroyed before they can return and conduct a search of the entire premises pursuant to a warrant. If the police in fact possess probable cause to believe that weapons, contraband, or evidence of crime is in plain view on the premises, it will be far safer to obtain a search warrant than to take a chance that in making an arrest they will come into plain view of the object they are seeking. It is only when they lack probable cause for a search when, that is, discovery of objects in plain view from a lawful vantage point is inadvertent—that entry to make an arrest might, as a practical matter, assist the police in discovering an object for which they could not have obtained a warrant. But the majority in that circumstance would uphold their authority to seize what they see. I thus doubt that the Court's new rule will have any measurable effect on police conduct. It will merely attach undue consequences to what will most often be an unintended mistake or a misapprehension of some of this Court's probable-cause decisions, a failing which, I am afraid, we all have.
153
By invalidating otherwise valid, plain-sight seizures where officers have probable cause and presumably, although the Court does not say so, opportunity to secure a warrant, the Court seems to turn in the direction of the Trupiano rule, rejected in Rabinowitz and not revived in Chimel. But it seems unsure of its own rule.
154
It is careful to note that Coolidge's car is not contraband, stolen, or in itself dangerous. Apparently, contraband, stolen, or dangerous materials may be seized when discovered in the course of an otherwise authorized search even if the discovery is fully anticipated and a warrant could have been obtained. The distinction the Court draws between contraband and mere evidence of crime is reminiscent of the confusing and unworkable approach that I thought Warden v. Hayden, supra, had firmly put aside.
155
Neither does the Court in so many words limit Chimel; on the contrary, it indicates that warrantless Chimel-type searches will not be disturbed, even if the police 'anticipate that they will find specific evidence during the course of such a search.' Ante, at 482. The Court also concedes that, when an arresting officer 'comes within plain view of a piece of evidence, not concealed, although outside of the area under the immediate control of the arrestee, the officer may seize it, so long as the plain view was obtained in the course of an appropriately limited search of the arrestee.' Id., at 466 n. 24. Yet today's decision is a limitation on Chimel, for in the latter example, the Court would permit seizure only if the plain view was inadvertently obtained. If the police, that is, fully anticipate that, when they arrest a suspect as he is entering the front door of his home, they will find a credit card in his pocket and a picture in plain sight on the wall opposite the door, both of which will implicate him in a crime, they may under today's decision seize the credit card but not the picture. This is a distinction that I find to be without basis and which the Court makes no attempt to explain. I can therefore conclude only that Chimel and today's holding are squarely inconsistent and that the Court, unable to perceive any reasoned distinction, has abandoned any attempt to find one.
156
The Court also fails to mention searches carried out with third-party consent. Assume for the moment that authorities are reliably informed that a suspect, subject to arrest, but not yet apprehended, has concealed specified evidence of his crime in the house of a friend. The friend freely consents to a search of his house and accompanies the officers in the process. The evidence is found precisely where the officers were told they would find it, and the officers proceed to seize it, aware, however, that the friend lacks authority from the suspect to confer possession on them. The suspect's interest in not having his possession forcibly interfered with in the absence of a warrant from a magistrate is identical to the interest of Coolidge, and one would accordingly expect the Court to deal with the question. Frazier v. Cupp, supra, indicates that a seizure in these circumstances would be lawful, and the Court today neither overrules nor distinguishes Frazier; in fact, Part III of the Court's opinion, which discusses the officers' receipt of Coolidge's clothing and weapons from Mrs. Coolidge, implicitly approves Frazier.
157
Neither does the Court indicate whether it would apply the inadvertence requirement to searches made in public places, although one might infer from its approval of United States v. Lee, supra, which held admissible a chemical analysis of bootleg liquor observed by revenue officers in plain sight, that it would not.
158
Aware of these inconsistencies, the Court admits that 'it would be nonsense to pretend that our decision today reduces Fourth Amendment law to complete order and harmony.' Ante, at 483. But it concludes that logical consistency cannot be attained in constitutional law and ultimately comes to rest upon its belief 'that the result reached in this case is correct * * *.' Id., at 484. It may be that constitutional law cannot be fully coherent and that constitutional principles ought not always be spun out to their logical limits, but this does not mean that we should cease to strive for clarity and consistency of analysis. Here the Court has a ready opportunity, one way or another, to bring clarity and certainty to a body of law that lower courts and law enforcement officials often find confusing. Instead, without apparent reason, it only increases their confusion by clinging to distinctions that are both unexplained and inexplicable.
II
159
In the case before us, the officers had probable cause both to arrest Coolidge and to seize his car. In order to effect his arrest, they went to his home—perhaps the most obvious place in which to look for him. They also may have hoped to find his car at home and, in fact, when they arrived on the property to make the arrest, they did find the 1951 Pontiac there. Thus, even assuming that the Fourth Amendment protects against warrantless seizures outside the house, but see Hester v. United States, supra, 265 U.S., at 59, 44 S.Ct., at 446, the fact remains that the officers had legally entered Coolidge's property to effect an arrest and that they seized the car only after they observed it in plain view before them. The Court, however, would invalidate this seizure on the premise that officers should not be permitted to seize effects in plain sight when they have anticipated they will see them.
160
Even accepting this premise of the Court, seizure of the car was not invalid. The majority makes an assumption that, when the police went to Coolidge's house to arrest him, they anticipated that they would also find the 1951 Pontiac there. In my own reading of the record, however, I have found no evidence to support this assumption. For all the record shows, the police, although they may have hoped to find the Pontiac at Coolidge's home, did not know its exact location when they went to make the arrest, and their observation of it in Coolidge's driveway was truly inadvertent. Of course, they did have probable cause to seize the car, and, if they had had a valid warrant as well, they would have been justified in looking for it in Coolidge's driveway—a likely place for it to be. But if the fact of probable cause bars this seizure, it would also bar seizures not only of cars found at a house, but also of cars parked in a parking lot, hidden in some secluded spot, or delivered to the police by a third party at the police station. This would simply be a rule that the existence of probable cause bars all warrantless seizures.
161
It is evident on the facts of this case that Coolidge's Pontiac was subject to seizure if proper procedures were employed. It is also apparent that the Pontiac was in plain view of the officers who had legally entered Coolidge's property to effect his arrest. I am satisfied that it was properly seized whether or not the officers expected that it would be found where it was. And, since the Pontiac was legally seized as evidence of the crime for which Coolidge was arrested, Cooper v. California, supra, authorizes its warrantless search while in lawful custody of the police. 'It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. It is no answer to say that the police could have obtained a search warrant, for '(t)he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.' * * * Under the circumstances of this case, we cannot hold unreasonable under the Fourth Amendment the examination or search of a car validly held by officers for use as evidence * * *.' Cooper v. California, supra, 386 U.S., at 61—62, 87 S.Ct., at 791.
III
162
Given the foregoing views, it is perhaps unnecessary to deal with the other grounds offered to sustain the search of Coolidge's car. Nonetheless, it may be helpful to explain my reasons for relying on the plain-sight rule rather than on Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), to validate this search.
163
Chambers upheld the seizure and subsequent search of automobiles at the station house rather than requiring the police to search cars immediately at the places where they are found. But Chambers did not authorize indefinite detention of automobiles so seized; it contemplated some expedition in completing the searches so that automobiles could be released and returned to their owners. In the present case, however, Coolidge's Pontiac was not released quickly but was retained in police custody for more than a year and was searched not only immediately after seizure but also on two other occasions: one of them 11 months and the other 14 months after seizure. Since fruits of the later searches as well as the earlier one were apparently introduced in evidence, I cannot look to Chambers and would invalidate the later searches but for the fact that the police had a right to seize and detain the car not because it was a car, but because it was itself evidence of crime. It is only because of the long detention of the car that I find Chambers inapplicable, however, and I disagree strongly with the majority's reasoning for refusing to apply it.
164
As recounted earlier, arrest and search of the person on probable cause but without a warrant is the prevailing constitutional and legislative rule, without regard to whether on the particular facts there was opportunity to secure a warrant. Apparently, exigent circumstances are so often present in arrest situations that it has been deemed improvident to litigate the issue in every case.
165
In similar fashion, 'practically since the beginning of the Government,' Congress and the Court have recognized 'a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.' Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). As in the case of an arrest and accompanying search of a person, searches of vehicles on probable cause but without a warrant have been deemed reasonable within the meaning of the Fourth Amendment without requiring proof of exigent circumstances beyond the fact that a movable vehicle is involved. The rule has been consistently recognized, see Cooper v. California, supra; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Harris v. United States, supra, 331 U.S., at 168, 67 S.Ct., at 1110 (dissenting opinion); Davis v. United States, 328 U.S. 582, 609, 66 S.Ct. 1256, 1269, 90 L.Ed. 1453 (1946) (dissenting opinion); Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931); United States v. Lee, supra; and was reaffirmed less than a year ago in Chambers v. Maroney, supra, where a vehicle was stopped on the highway but was searched at the police station, there being probable cause but no warrant.
166
The majority now approves warrantless searches of vehicles in motion when seized. On the other hand, warrantless, probable-cause searches of parked but movable vehicles in some situations would be valid only upon proof of exigent circumstances justifying the search. Although I am not sure, it would seem that, when police discover a parked car that they have probable cause to search, they may not immediately search but must seek a warrant. But if before the warrant arrives, the car is put in motion by its owner or others, it may be stopped and searched on the spot or elsewhere. In the case before us, Coolidge's car, parked at his house, could not be searched without a valid warrant, although if Coolidge had been arrested as he drove away from his home, immediate seizure and subsequent search of the car would have been reasonable under the Fourth Amendment.
167
I find nothing in the language or the underlying rationale of the line of cases from Carroll to Chambers limiting vehicle searches as the Court now limits them in situations such as the one before us. Although each of those cases may, as the Court argues, have involved vehicles or vessels in motion prior to their being stopped and searched, each of them approved the search of a vehicle that was no longer moving and, with the occupants in custody, no more likely to move than the unattended but movable vehicle parked on the street or in the driveway of a person's house. In both situations the probability of movement at the instance of family or friends is equally real, and hence the result should be the same whether the car is at rest or in motion when it is discovered.
168
In Husty v. United States, supra, the police had learned from a reliable informant that Husty had two loads of liquor in automobiles of particular make and description parked at described locations. The officers found one of the cars parked and unattended at the indicated spot. Later, as officers watched, Husty and others entered and started to drive away. The car was stopped after having moved no more than a foot or two; immediate search of the car produced contraband. Husty was then arrested. The Court, in a unanimous opinion, sustained denial of a motion to suppress the fruits of the search, saying that '(t)he Fourth Amendment does not prohibit the search, without warrant, of an automobile, for liquor illegally transported or possessed, if the search is upon probable cause * * *.' Id., at 700, 51 S.Ct., at 241. Further, '(t)he search was not unreasonable because, as petitioners argue, sufficient time elapsed between the receipt by the officer of the information and the search of the car to have enabled him to procure a search warrant. He could not know when Husty would come to the car or how soon it would be removed. In such circumstances we do not think the officers should be required to speculate upon the chances of successfully carrying out the search, after the delay and withdrawal from the scene of one or more officers which would have been necessary to procure a warrant. The search was, therefore, on probable cause, and not unreasonable * * *.' Id., at 701, 51 S.Ct., at 242.
169
The Court apparently cites Husty with approval as involving a car in motion on the highway. But it was obviously irrelevant to the Court that the officers could have obtained a warrant before Husty attempted to drive the car away. Equally immaterial was the fact that the car had moved one or two feet at the time it was stopped. The search would have been approved even if it had occurred before Husty's arrival or after his arrival but before he had put the car in motion. The Court's attempt to distinguish Husty on the basis of the car's negligible movement prior to its being stopped is without force.
170
The Court states flatly, however, that this case is not ruled by the Carroll-Chambers$ line of cases but by Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968). There the car was properly stopped and the occupants arrested for reckless driving, but the subsequent search at the station house could not be justified as incident to the arrest. See Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). Nor could the car itself be seized and later searched, as it was, absent probable cause to believe it contained evidence of crime. In Dyke, it was pointed out that probable cause did not exist at the time of the search, and we expressly rested our holding on this fact, noting that, '(s)ince the search was not shown to have been based upon sufficient cause,' it was not necessary to reach other grounds urged for invalidating it. 391 U.S., at 222, 88 S.Ct., at 1476. Given probable cause, however, we would have upheld the search in Dyke.
171
For Fourth Amendment purposes, the difference between a moving and movable vehicle is tenuous at best. It is a metaphysical distinction without roots in the commonsense standard of reasonableness governing search and seizure cases. Distinguishing the case before us from the Carroll-Chambers line of cases further enmeshes Fourth Amendment law in litigation breeding refinements having little relation to reality. I suggest that in the interest of coherence and credibility we either overrule our prior cases and treat automobiles precisely as we do houses or apply those cases to readily movable as well as moving vehicles and thus treat searches of automobiles as we do the arrest of a person. By either course we might bring some modicum of certainty to Fourth Amendment law and give the law enforcement officers some slight guidance in how they are to conduct themselves.
172
I accordingly dissent from Parts II—B, II—C, and II—D of the Court's opinion. I concur, however, in the result reached in Part III of the opinion. I would therefore affirm the judgment of the New Hampshire Supreme Court.
**
Parts II-A, II-B, and II-C of this opinion are joined only by Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL.
1
During the lie-detector test, Coolidge had confessed to a theft of money from his employer. See III-A of text, infra.
2
For a very strong argument that this evidence should have been excluded because altogether lacking in probative value, see Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv.L.Rev. 1329, 1342 n. 40 (1971).
3
After hearing the Attorney General's testimony on the issuance of the warrants, the trial judge said:
'I found that an impartial Magistrate would have done the same as you did. I don't think, in all sincerity, that I would expect that you could wear two pairs of shoes.'
4
See also Gouled v. United States, 255 U.S. 298, 303—304, 41 S.Ct. 261, 263, 65 L.Ed. 647 (1921):
'It would not be possible to add to the emphasis with which the framers of our Constitution and this court * * * have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two Amendments (the Fourth and Fifth). The effect of the decisions cited is: that such rights are declared to be indispensable to the 'full enjoyment of personal security, personal liberty and private property'; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen,—the right, to trial by jury, to the writ of habeas corpus and to due process of law. It has been repeatedly decided that these Amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or 'gradual depreciation' of the rights secured by them, by imperceptible practice of courts or by well-intentioned, but mistakenly overzealous executive officers.' See also Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374.
5
Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576.
6
Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514.
7
McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153.
8
United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59.
9
See Entick v. Carrington, 19 How.St.Tr. 1029, 95 Eng.Rep. 807 (1765), and Wilkes v. Wood, 19 How.St.Tr. 1153, 98 Eng.Rep. 489 (1763).
10
See Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669. 456
ment in terms of the law as it existed before Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, which substantially restricted the 'search incident' exception to the warrant requirement, but did so only prospectively. Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388. But even under pre-Chimel law, the State's position is untenable.
The leading case in the area before Chimel was United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, which was taken to stand 'for the proposition, inter alia, that a warrantless search 'incident to a lawful arrest' may generally extend to the area that is considered to be in the 'possession' or under the 'control' of the person arrested.' Chimel, supra, at 760, 89 S.Ct., at 2038. In this case, Coolidge was arrested inside his house; his car was outside in the driveway. The car was not touched until Coolidge had been removed from the scene. It was then seized and taken to the station, but it was not actually searched until two days later.
First, it is doubtful whether the police could have carried out a contemporaneous search of the car under Rabinowitz standards. For this Court has repeatedly held that, even under Rabinowitz, '(a) search may be incident to an arrest "only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. * * *'" Vale v. Louisiana, 399 U.S. 30, 33, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409, quoting from Shipley v. California, 395 U.S. 818, 819, 89 S.Ct. 2053, 2054, 23 L.Ed.2d 732, quoting from Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856 (Emphasis in Shipley.) Cf. Agnello v. United States, 269 U.S., at 30—31, 46 S.Ct., at 5—6; James v. Louisiana, 382 U.S. 36, 88 S.Ct. 151, 15 L.Ed.2d 30. These cases make it clear beyond any question that a lawful pre-Chimel arrest of a suspect outside his house could never by itself justify a warrantless search inside the house. There is nothing in search-incident doctrine (as opposed to the special rules for automobiles and evidence in 'plain view,' to be considered below) that suggests
11
The suggestion in Part III-A of the concurring and dissenting opinion of Mr. Justice BLACK that this represents the formulation of 'a per se rule reaching far beyond' Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, post, at 503, is mistaken. The question discussed here is whether under pre-Chimel law the police could, contemporaneously with the arrest of Coolidge inside his house, make a search of his car for evidence—i.e., the particles later introduced at his trial. There can be no question that after Chimel, such a search could not be justified as 'incident' to the arrest, since Chimel held that a search so justified can extend only to the 'arrestee's person and the area 'within his immediate control'—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.' 395 U.S., at 763, 89 S.Ct., at 2040. The quite distinct question whether the police were entitled to seize the automobile as evidence in plain view is discussed in Part II-C below. Cf. n. 24, infra.
12
Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730, is not in point, since there the State did not rely on the theory of a search incident to arrest, but sought to justify the search on other grounds. Id., at 60, 87 S.Ct., at 790. Mr. Justice Black's opinion for the Court in Cooper reaffirmed Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777.
13
267 U.S., at 153, 45 S.Ct., at 285.
14
Id., at 156, 45 S.Ct., at 286.
15
United States v. Di Re, 332 U.S. 581, 586, 68 S.Ct. 222, 225, 92 L.Ed. 210.
16
Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879.
17
A third case that has sometimes been cited as an application of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, is Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151. There, the police were following an automobile that they had probable cause to believe contained a large quantity of contraband liquor. The facts were as follows:
The driver 'turned into a garage a few feet back of his residence and within the curtilage. One of the pursuing officers left their car and followed. As petitioner was getting out of his car this officer approached, announced his official character, and stated he was informed that the car was hauling bootleg liquor. Petitioner replied, 'just a little for a party.' Asked whether the liquor was tax paid, he replied that it was Canadian whiskey; also, he said it was in the trunk at the rear of the car. The officer opened the trunk and found * * *.' 305 U.S., at 253, 59 S.Ct., at 175.
The Court held:
'Considering the doctrine of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, * * * and the application of this to the facts there disclosed, it seems plain enough that just before he entered the garage the following officers properly could have stopped petitioner's car, made search and put him under arrest. So much was not seriously controverted at the argument.
'Passage of the car into the open garage closely followed by the observing officer did not destroy this right. No search was made of the garage. Examination of the automobile accompanied an arrest, without objection and upon admission of probable guilt. The officers did nothing either unreasonable or oppressive. Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145; Wisniewski v. United States, 47 F.2d 825, 826 (CA 6 1931).' 305 U.S., at 254—255, 59 S.Ct., at 176. Both Agnello, at the page cited, and Wisniewski dealt with the admissibility of evidence seized during a search incident to a lawful arrest.
18
It is frequently said that occupied automobiles stopped on the open highway may be searched without a warrant because they are 'mobile,' or 'movable.' No other basis appears for Mr. Justice WHITE's suggestion in his dissenting opinion that we should 'treat searches of automobiles as we do the arrest of a person.' Post, at 527. In this case, it is, of course, true that even though Coolidge was in jail, his wife was miles away in the company of two plainclothesmen, and the Coolidge property was under the guard of two other officers, the automobile was in a literal sense 'mobile.' A person who had the keys and could slip by the guard could drive it away. We attach no constitutional significance to this sort of mobility.
First, a good number of the containers that the police might discover on a person's property and want to search are equally movable, e.g., trunks, suitcases, boxes, briefcases, and bags. How are such objects to be distinguished from an unoccupied automobile not then being used for any illegal purpose—sitting on the owner's property? It is true that the automobile has wheels and its own locomotive power. But given the virtually universal availability of automobiles in our society there is little difference between driving the container itself away and driving it away in a vehicle brought to the scene for that purpose. Of course, if there is a criminal suspect close enough to the automobile so that he might get a weapon from it or destroy evidence within it, the police may make a search of appropriately limited scope. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. See II-A of the text, supra. But if Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, permits a warrantless search of an unoccupied vehicle, on private property and beyond the scope of a valid search incident to an arrest, then it would permit as well a warrantless search of a suitcase or a box. We have found no case that suggests such an extension of Carroll. See nn. 16, 17, supra.
19
Cf. United States v. Payne, 429 F.2d 169 (CA 9 1970). In that case, two couples were camping in an individually allotted campsite in Yosemite National Park. During the evening, an off-duty policeman camping with his family in an adjoining site observed the two couples smoking a substance he believed to be marihuana and also observed them making what he thought 'furtive' movements to remove objects he thought to be drugs from the glove compartment of a car parked nearby. He summoned a park ranger, and the two entered the campsite. They found that one of the couples was preparing to bed down for the night, while the couple to whom the car belonged were visiting in another campsite. The officers searched the unoccupied parked automobile, found 12 Seconal capsules, and arrested the couple who had stayed behind. The Government attempted to uphold the search under Carroll, supra, and Brinegar, supra. The Court of Appeals answered: 'While it is true that the Supreme Court has enunciated slightly different rules concerning a search of an automobile without a warrant, the rationale is apparently based upon the fact that a 'vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.' Chimel v. California, 395 U.S. 752, 764, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). In the instant case the search of the Volkswagen cannot be justified upon this reasoning. There is no indication in the record that the appellant or any of his party were preparing to leave, and quite to the contrary it is clear that appellant was bedding down for the evening and that there was ample time to secure the necessary warrant for the search of the car had (the Park Ranger) believed there was probable cause to seek one.' 429 F.2d, at 171—172.
20
Part III-B of the concurring and dissenting opinion of Mr. Justice BLACK argues with vehemence that this case must somehow be controlled by Chambers v. Maroney 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, yet the precise applicability of Chambers is never made clear. On its face, Chambers purports to deal only with situations in which the police may legitimately make a warrantless search under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. Since the Carroll rule does not apply in the circumstances of this case, the police could not have searched the car without a warrant when they arrested Coolidge. Thus Mr. Justice BLACK's argument must be that Chambers somehow operated sub silentio to extend the basic doctrine of Carroll. It is true that the actual search of the automobile in Chambers was made at the police station many hours after the car had been stopped on the highway, when the car was no longer movable, any 'exigent circumstances' had passed, and, for all the record shows, there was a magistrate easily available. Nonetheless, the analogy to this case is misleading. The rationale of Chambers is that given a justified initial intrusion, there is little difference between a search on the open highway and a later search at the station. Here, we deal with the prior question of whether the initial intrusion is justified. For this purpose, it seems abundantly clear that there is a significant constitutional difference between stopping, seizing, and searching a car on the open highway, and entering private property to seize and search an unoccupied, parked vehicle not then being used for any illegal purpose. That the police may have been legally on the property in order to arrest Coolidge is, of course, immaterial, since, as shown in II-A of the text, supra, that purpose could not authorize search of the car even under United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653.
21
Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730, is no more in point here than in the context of a search incident to a lawful arrest. See n. 12, supra. In Cooper, the seizure of the petitioner's car was mandated by California statute, and its legality was not questioned. The case stands for the proposition that, given an unquestionably legal seizure, there are special circumstances that may validate a subsequent warrantless search. Cf. Chambers, supra. The case certainly should not be read as holding that the police can do without a warrant at the police station what they are forbidden to do without a warrant at the place of seizure.
22
Coolidge had admitted that on the night of Pamela Mason's disappearance he had stopped his Pontiac on the side of the highway opposite the place where the body was found. He claimed the car was stuck in the snow. Two witnesses, who had stopped and asked him if he needed help, testified that his car was not stuck.
23
See nn. 12 and 21, supra.
24
The 'plain view' exception to the warrant requirement is not in conflict with the law of search incident to a valid arrest expressed in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. The Court there held that '(t)here is ample justification * * * for a search of the arrestee's person and the area 'within his immediate control'—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.' Id., at 763, 89 S.Ct., at 2040. The 'plain view' doctrine would normally justify as well the seizure of other evidence that came to light during such an appropriately limited search. The Court in Chimel went on to hold that '(t)here is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant.' Dbid. Where, however, the arresting officer inadvertently comes within plain view of a piece of evidence, not concealed, although outside of the area under the immediate control of the arrestee, the officer may seize it, so long as the plain view was obtained in the course of an appropriately limited search of the arrestee.
25
Trupiano v. United States, supra, applied the principle in circumstances somewhat similar to those here. Federal law enforcement officers had infiltrated an agent into a group engaged in manufacturing illegal liquor. The agent had given them the fullest possible description of the layout and equipment of the illegal distillery. Although they had ample opportunity to do so, the investigators failed to procure search or arrest warrants. Instead, they staged a warrantless nighttime raid on the premises. After entering the property, one of the officers looked through the doorway of a shed, and saw one of the criminals standing beside an illegal distillery. The officer entered, made a legal arrest, and seized the still. This Court held it inadmissible at trial, rejecting the Government's argument based on 'the long line of cases recognizing that an arresting officer may look around at the time of the arrest and
seize those fruits and evidences of crime or those contraband articles which are in plain sight and in his immediate and discernible presence.' 334 U.S., at 704, 68 S.Ct., at 1232. The Court reasoned that there was no excuse whatever for the failure of the agents to obtain a warrant before entering the property, and that the mere fact that a suspect was arrested in the proximity of the still provided no 'exigent circumstance' to validate a warrantless seizure. The scope of the intrusion permitted to make the valid arrest did not include a warrantless search for and seizure of a still whose exact location and illegal use were known well in advance. The fact that at the time of the arrest the still was in plain view and nearby was therefore irrelevant. The agents were in exactly the same position as the policemen in Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951, who had unmistakable evidence of sight and smell that contraband liquor was stored in a garage, but nonetheless violated the Fourth Amendment when they entered and seized it without a warrant.
Trupiano, to be sure, did not long remain undisturbed. The extremely restrictive view taken there of the allowable extent of a search and seizure incident to lawful arrest was rejected in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. The case demonstrates, however, the operation of the general principle that 'plain view' alone can never justify a warrantless seizure. Cf. n. 24, supra.
26
None of the cases cited in Part III-C of the concurring and dissenting opinion of Mr. Justice BLACK casts any doubt upon this conclusion. In Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757, agents observed cases marked 'Whiskey' being taken into a building from a truck. On this basis, they obtained a warrant to search the premises for contraband liquor. In the course of the search, they came upon a great deal of whiskey and gin—not that they had seen unloaded—and various bottling equipment, and seized all they found.
In Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, the police entered and searched a house in hot pursuit of a fleeing armed robber. The Court pointed out that '(s)peed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.' 387 U.S., at 299, 87 S.Ct., at 1646. The Court then established
with painstaking care that the various articles of clothing seized were discovered during a search directed at the robber and his weapons. Id., at 299—300, 87 S.Ct., at 1646—1647.
In United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202, a Coast Guard patrol approached a boat on the high seas at night. A searchlight was turned on the boat and revealed cases of contraband. The liquor subsequently seized was never introduced in evidence, but the seizing officers were allowed to testify to what they had seen. As the Court put it: 'A later trespass by the officers, if any, did not render inadmissible in evidence knowledge legally obtained.' 274 U.S., at 563, 47 S.Ct., at 748.
In Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231, officers raided a speakeasy with a warrant to search for and seize contraband liquor. They arrested the bartender and seized a number of bills and other papers in plain view on the bar. While searching a closet for liquor they came across a ledger kept in the operation of the illegal business, which they also seized. There is no showing whatever that these seizures outside the warrant were planned in advance. The Marron Court upheld them as 'incident' to the arrest. The 'plain view' aspect of the case was later emphasized in order to avoid the implication that arresting officers are entitled to make an exploratory search of the premises where the arrest occurs. See Go-Bart Importing Co. v. United States, 282 U.S., at 358, 51 S.Ct., at 158; United States v. Lefkowitz, 285 U.S. 452, 465, 52 S.Ct. 420, 423, 76 L.Ed. 877; United States v. Rabinowitz, 339 U.S., at 78, 70 S.Ct., at 440 (Frankfurter, J., dissenting). Thus Marron, like Steele, supra, Warden, supra, and Lee, supra, can hardly be cited for the proposition that the police may justify a planned warrantless seizure by maneuvering themselves within 'plain view' of the object they want.
Finally, Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, is fully discussed in n. 28, infra.
27
Mr. Justice BLACK laments that the Court today 'abolishes seizure incident to arrest' (but see n. 24, supra), while Mr. Justice WHITE no less forcefully asserts that the Court's 'new rule' will 'accomplish nothing.' In assessing these claims, it is well to keep in mind that we deal here with a planned warrantless seizure. This Court has never permitted the legitimation of a planned warrantless seizure on plain-view grounds, see n. 26, supra, and to do so here would be flatly inconsistent with the existing body of Fourth Amendment law. A long line of cases, of which those cited in the text, at n. 25, supra, are only a sample, make it clear beyond doubt that the mere fact that the police have legitimately obtained a plain view of a piece of incriminating evidence is not enough to justify a warrantless seizure. Although Mr. Justice BLACK and Mr. Justice WHITE appear to hold contrasting views of the import of today's decision, they are in agreement that this warrant requirement should be ignored whenever the seizing officers are able to arrange to make an arrest within sight of the object they are after. 'The exceptions cannot be enthroned into the rule.' United States v. Rabinowitz, 339 U.S., at 80, 70 S.Ct., at 441 (Frankfurter, J., dissenting). We recognized the dangers of allowing the extent of Fourth Amendment protections to turn on the location of the arrestee in Chimel v. California, 395 U.S., at 767, 89 S.Ct., at 2042, noting that under the law of search inci-
dent to arrest as enunciated prior to Chimel, 'law enforcement officials (had) the opportunity to engage in searches not justified by probable cause, by the simple expedient of arranging to arrest suspects at home rather than elsewhere.' Cf. Trupiano v. United States, supra, n. 25, where the Court held:
'As we have seen, the existence of (the illegal still) and the desirability of seizing it were known to the agents long before the seizure and formed one of the main purposes of the raid. Likewise, the arrest of Antoniole (the person found in the shed with the still) * * * was a foreseeable event motivating the raid. But the precise location of the petitioners at the time of their arrest had no relation to the foreseeability or necessity of the seizure. The practicability of obtaining a search warrant did not turn upon whether Antoniole and the others were within the distillery building when arrested or upon whether they were then engaged in operating the illicit equipment. * * * Antoniole might well have been outside the building at that particular time. If that had been the case and he had been arrested in the farmyard, the entire argument advanced by the Government in support of the seizure without warrant would collapse. We do not believe that the applicability of the Fourth Amendment to the facts of this case depends upon such a fortuitous factor as the precise location of Antoniole at the time of the raid.' 334 U.S., at 707—708, 68 S.Ct., at 1233. (Emphasis supplied.)
28
Ker v. California, 374 U.S., 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, is not to the contrary. In that case, the police had probable cause to enter Ker's apartment and arrest him, and they made an entry for that purpose. They did not have a search warrant, but the Court held that 'time * * * was of the essence,' so that a warrant was unnecessary. As the police entered the living room, Ker's wife emerged from the adjacent kitchen. One of the officers moved to the door of the kitchen, looked in, and observed a brick of marihuana in plain view on
a table. The officer brought Ker and his wife into the kitchen, questioned them, and, when they failed to explain the marihuana, arrested them, and seized the contraband. The police then searched the whole apartment and found various other incriminating evidence. The Court held that the general exploratory search of the whole apartment 'was well within the limits upheld in Harris v. United States (331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399)' for a search incident to a lawful arrest. The Court also rejected Ker's claim that the seizure of the brick of marihuana in the kitchen was illegal because the police had 'searched' for it (by going to the door of the kitchen and looking in) before making any arrest. The Court reasoned that when Mrs. Ker emerged from the kitchen it was reasonable for the officer to go to the door and look in, and that when he saw the brick of marihuana he was not engaged in any 'search' at all. Once he had arrested the Kers, the actual seizure of the brick was lawful because 'incident' to the arrest. 374 U.S., at 42—43, 83 S.Ct., at 1634—1635.
Ker is distinguishable from the present case on at least the following grounds: in Ker, the Court found that 'the officers entered the apartment for the purpose of arresting George Ker,' rather than for purposes of seizure or search, 374 U.S., at 42—43, 83 S.Ct., at 1634—1635; exigent circumstances justified the failure to obtain a search warrant; the discovery of the brick of marihuana was fortuitous; the marihuana was contraband easily destroyed; and it was in the immediate proximity of the Kers at the moment of their arrest so that the seizure was unquestionably lawful under the search-incident law of the time, and might be lawful under the more restrictive standard of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. Not one of these elements was present in the case before us.
29
United States v. Rabinowitz, supra, at 66, 70 S.C., at 435.
30
See the cases cited in nn. 5—8, supra, and in the text at n. 25, supra.
31
See Carroll v. United States, supra, and cases discussed in Part II—B above (automobiles); Katz v. United States, supra (electronic surveillance); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 889; Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1912, 20 L.Ed.2d 917 (street searches); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930; See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (administrative searches).
32
E.g., Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503.
33
E.g., Marron v. United States, supra; United States v. Rabinowitz, supra.
34
E.g., Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.
35
E.g., Trupiano v. United States, supra; Warden v. Hayden, supra; Ker v. California, supra.
36
Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970).
37
Katz v. United States, supra, at 357, 88 S.Ct., at 514.
38
Gouled v. United States, 255 U.S., at 304, 41 S.Ct., at 263.
39
Cf. Recent Cases, 79 Harv.L.Rev. 1513, 1519 (1966); Note, Seizures by Private Parties: Exclusion in Criminal Cases, 19 Stan.L.Rev. 608 (1967).
*
Because of my views as to the retroactivity of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), I do not believe the seizure of the Pontiac can be upheld as incident to Coolidge's arrest. See my separate opinion in Mackey v. United States, 401 U.S. 667, 675, 91 S.Ct. 1160, 1171, 28 L.Ed.2d 404 (1971).
1
There are of course certain searches which constitutionally cannot be authorized even with a search warrant or subpoena. See, e.g., Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886); Rochin v. California, 342 U.S. 165, 174, 72 S.Ct. 205, 210, 96 L.Ed. 183 (1952) (Black, J., concurring); Schmerber v. California, 384 U.S. 757, 773, 86 S.Ct. 1826, 1837, 16 L.Ed.2d 908 (1966) (Black, J., dissenting).
2
The majority attempts to rely on Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), to support its holding that the police could not search petitioner's automobile at the station house. But this case is not Preston, nor is it controlled by Preston. The police arrested Preston for vagrancy. No claim was made that the police had any authority to hold his car in connection with that charge. The fact that the police had custody of Preston's car was totally unrelated to the vagrancy charge for which they arrested him; so was their subsequent search of the car. Here the officers arrested petitioner for murder. They seized petitioner's car as evidence of the crime for which he was arrested. Their subsequent search of the car was directly related to the reason petitioner was arrested and the reason his car had been seized and, therefore, was valid under this Court's decision in Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).
By Brother WHITE points out that the police in the present case not only searched the car immediately upon taking it to the station house, but also searched it 11 months and 14 months after seizure. We held in Cooper, where the search occurred one week after seizure, that the Fourth Amendment is not violated by the examination or search of a car validly held by officers for use as evidence in a pending trial. In my view the police are entitled to search a car whether detained for a week or for a year where that car is being properly held as relevant evidence of the crime charged.
3
The facts in Ker undermine the majority's attempt to distinguish it from the instant case. The arresting officer there learned from other policemen that Ker had been observed meeting with a known marihuana supplier. The arresting officer had received information at various times over an eight-month period that Ker was selling marihuana from his apartment and that he was securing this marihuana from the known supplier. The arresting officer had a 'mug' photograph of Ker at the time of the arrest and testified that for at least two months he had received information as to Ker's marihuana activities from a named informant who had previously given information leading to three other arrests and whose information was believed to be reliable. The arresting officer did not know whether Ker would be present at his apartment on the night of arrest. The officer had neither an arrest nor a search warrant. He entered Ker's apartment, placed Ker under arrest, and seized the block of marihuana in plain view in the adjoining room. This Court held that the seizure was reasonable and therefore valid under the Fourth Amendment.
4
The majority correctly notes, ante, at 464, that this Court in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), flatly rejected the distinction for purposes of the Fourth Amendment between 'mere evidence' and contraband, a distinction which the majority appears to me to reinstate at another point in its opinion, ante, at 471 and 472.
5
The cases cited by the majority simply do not support the majority's new rule. For instance, when the police in Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925), entered a warehouse under the authority of a search warrant issued on a showing of probable cause that the Prohibition Act was being violated and naming 'cases of whiskey' as the objects of search, it can scarcely be said that their discovery and seizure of barrels of whiskey and bottles and bottling equipment in plain view were 'inadvertent.'
The majority states that the seizure in Warden v. Hayden, supra, was justified because the police 'inadvertently' came across the evidence while in hot pursuit of a fleeing suspect. In that case the police answered the call of two witnesses who stated that an armed robber had just held up a business. The witnesses described the robber and the clothes he was wearing. They had followed the robber to a particular house. The police searched the house and seized (1) a shotgun and a pistol found in a toilet on the second floor; (2) ammunition for the pistol and a cap like the one worn by the robber, both found beneath the mattress in the defendant's bedroom; and (3) a jacket and trousers of the type of the fleeing man was said to have worn, found in a washing machine in the basement. It is quite difficult for me to accept the majority's characterization of these discoveries as 'inadvertent.'
See also United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927), another case cited by the majority, where Coast Guard officers, with probable cause to believe that a boat was being used to violate the Prohibition Act, shined a searchlight across the deck and discovered illicit whiskey. The admission of testimony regarding that discovery was upheld by this Court against a Fourth Amendment challenge, although the discovery could hardly be termed 'inadvertent.'
6
Moreover, what a person knowingly exposes to the public is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 427, 17 L.Ed.2d 312 (1966); United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 748, 71 L.Ed. 1202 (1927); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).
1
This was the common-law rule. 1 J. Stephen, A History of Criminal Law of England 193 (1883); 2 M. Hale, Historia Plactorum Coronae 72—104 (new ed. 1800). It is also the constitutional rule. In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the Court said that '(t)he usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony * * *.' Id., at 156, 45 S.Ct., at 286. There in September 1921, officers had probable cause to believe the two defendants were unlawfully transporting bootleg liquor, but they had neither effected an immediate arrest nor sought a warrant. Several months later they observed the two men driving on a public highway, stopped, and searched the car and arrested the men, and this Court sustained both the search and the arrest. So also in Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948), officers were amply forewarned of criminal activities and had time to seek a warrant but did not do so. Instead, some time later they entered on property where Trupiano had a still and found exactly what they expected to find—one of the defendants engaged in the distillation of bootleg liquor. His arrest without a warrant was sustained, the Court saying that '(t)he absence of a warrant of arrest, even though there was sufficient time to obtain one, (did) not destroy the validity of an arrest' in the circumstances of the case. Id., at 705, 68 S.Ct., at 1232.
The judgment of Congress also is that federal law enforcement officers may reasonably make warrantless arrests upon probable cause. It has authorized such arrests by United States Marshals, agents of the Federal Bureau of Investigation and of the Secret Service, and narcotics law enforcement officers. See Act of June 15, 1935, § 2, 49 Stat. 378, as amended, 18 U.S.C. § 3053; Act of June 18, 1934, 48 Stat. 1008, as amended, 18 U.S.C. § 3052; Act of Sept. 29, 1965, 79 Stat. 890, as amended, 18 U.S.C. § 3056 (1964 ed., Supp. V); Act of July 18, 1956, Tit. I, § 104(a), 70 Stat. 570, as amended, 26 U.S.C. § 7607(2). And, in 1951, Congress expressly deleted from the authority to make warrantless arrests a pre-existing statutory restriction barring them in the absence of a likelihood that the person would escape before a warrant could be obtained. See Act of Jan. 10, 1951, § 1, 64 Stat. 1239; S.Rep.No.2464, 81st Cong., 2d Sess., 2 (1950); H.R.Rep.No.3228, 81st Cong., 2d Sess., 2 (1950); Chimel v. California, 395 U.S. 752, 776—780, 89 S.Ct. 2034, 2047—2049, 23 L.Ed.2d 685 (1969) (dissenting opinion).
The majority now suggests that warrantless, probable-cause arrests may not be made in the home absent exigent circumstances. Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958), invalidated a forcible nighttime entry to effect a search without a warrant and suggested also that the particular circumstances of the entry would have posed a serious Fourth Amendment issue if the purpose of the entry had been to make an arrest. But, as a constitutional matter, the Court has never held or intimated that all probable-cause arrests without a warrant in the home must be justified by exigent circumstances other than the necessity for arresting a felon, or that, if the elapsed time between the accrual of probable cause and the making of the arrest proves sufficient to have obtained a warrant, the arrest is invalid. On the contrary, many cases in this Court have proceeded on the assumption that ordinarily warrantless arrests on probable cause may be effected even in the home. See Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); Miller v. United States, 357 U.S. 301, 305—308, 78 S.Ct. 1190, 1193—1195, 2 L.Ed.2d 1332 (1958); United States v. Rabinowitz, 339 U.S. 56, 60, 70 S.Ct. 430, 432, 94 L.Ed. 653 (1950) (dictum); Trupiano v. United States, supra; Johnson v. United States, 333 U.S. 10, 15, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948) (dictum). Of course, this is not to say that the time and method of entry could never pose serious constitutional questions under the Fourth Amendment.
2
Lee permitted the revenue officers who seized the boat to take and chemically analyze bootleg liquor found aboard it and then to testify as to the results of their analysis.
| 01
|
403 U.S. 388
91 S.Ct. 1999
29 L.Ed.2d 619
Webster BIVENS, Petitioner,v.SIX UNKNOWN NAMED AGENTS OF FEDERAL BUREAU OF NARCOTICS.
No. 301.
Argued Jan. 12, 1971.
Decided June 21, 1971.
Syllabus
Petitioner's complaint alleged that respondent agents of the Federal Bureau of Narcotics, acting under color of federal authority, made a warrantless entry of his apartment, searched the apartment, and arrested him on narcotics charges. All of the acts were alleged to have been done without probable cause. Petitioner's suit to recover damages from the agents was dismissed by the District Court on the alternative grounds (1) that it failed to state a federal cause of action and (2) that respondents were immune from suit by virtue of their official position. The Court of Appeals affirmed on the first ground alone. held:
1. Petitioner's complaint states a federal cause of action under the Fourth Amendment for which damages are recoverable upon proof of injuries resulting from the federal agents' violation of that Amendment. P. 2005.
2. The Court does not reach the immunity question, which was not passed on by the Court of Appeals. Pp. 397—398.
409 F.2d 718, reversed and remanded.
Stephen A. Grant, for petitioner.
Jerome Feit, Washington, D.C., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
The Fourth Amendment provides that:
1
'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. * * *'
2
In Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), we reserved the question whether violation of that command by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. Today we hold that it does.
3
This case has its origin in an arrest and search carried out on the morning of November 26, 1965. Petitioner's complaint alleged that on that day respondents, agents of the Federal Bureau of Narcotics acting under claim of federal authority, entered his apartment and arrested him for alleged narcotics violations. The agents manacled petitioner in front of his wife and children, and threatened to arrest the entire family. They searched the apartment from stem to stern. Thereafter, petitioner was taken to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search.
4
On July 7, 1967, petitioner brought suit in Federal District Court. In addition to the allegations above, his complaint asserted that the arrest and search were effected without a warrant, and that unreasonable force was employed in making the arrest; fairly read, it alleges as well that the arrest was made without probable cause.1 Petitioner claimed to have suffered great humiliation, embarrassment, and mental suffering as a result of the agents' unlawful conduct, and sought $15,000 damages from each of them. The District Court, on respondents' motion, dismissed the complaint on the ground, inter alia, that it failed to state a cause of action.2 276 F.Supp. 12 (EDNY 1967). The Court of Appeals, one judge concurring specially,3 affirmed on that basis. 409 F.2d 718 (CA2 1969). We granted certiorari. 399 U.S. 905, 90 S.Ct. 2203, 26 L.Ed.2d 559 (1970). We reverse.
5
* Respondents do not argue that petitioner should be entirely without remedy for an unconstitutional invasion of his rights by federal agents. In respondents' view, however, the rights that petitioner asserts—primarily rights of privacy—are creations of state and not of federal law. Accordingly, they argue, petitioner may obtain money damages to redress invasion of these rights only by an action in tort, under state law, in the state courts. In this scheme the Fourth Amendment would serve merely to limit the extent to which the agents could defend the state law tort suit by asserting that their actions were a valid exercise of federal power: if the agents were shown to have violated the Fourth Amendment, such a defense would be lost to them and they would stand before the state law merely as private individuals. Candidly admitting that it is the policy of the Department of Justice to remove all such suits from the state to the federal courts for decision,4 respondents nevertheless urge that we uphold dismissal of petitioner's complaint in federal court, and remit him to filing an action in the state courts in order that the case may properly be removed to the federal court for decision on the basis of state law.
6
We think that respondents' thesis rests upon an unduly restrictive view of the Fourth Amendment's protection against unreasonable searches and seizures by federal agents, a view that has consistently been rejected by this Court. Respondents seek to treat the relationship between a citizen and a federal agent unconstitutionally exercising his authority as no different from the relationship between two private citizens. In so doing, they ignore the fact that power, once granted, does not disappear like a magic gift when it is wrongfully used. An agent acting—albeit unconstitutionally—in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own. Cf. Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 267—268, 65 L.Ed. 654 (1921); United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941). Accordingly, as our cases make clear, the Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen. It guarantees to citizens of the United States the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority. And 'where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.' Bell v. Hood, 327 U.S., at 684, 66 S.Ct., at 777 (footnote omitted); see Bemis Bros. Bag Co. v. United States, 289 U.S. 28, 36, 53 S.Ct. 454, 457, 77 L.Ed. 1011 (1933) (Cardozo, J.); The Western Maid, 257 U.S. 419, 433, 42 S.Ct. 159, 161, 66 L.Ed. 299 (1922) (Holmes, J.).
7
First. Our cases have long since rejected the notion that the Fourth Amendment proscribes only such conduct as would, if engaged in by private persons, be condemned by state law. Thus in Gambino v. United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293 (1927), petitioners were convicted of conspiracy to violate the National Prohibition Act on the basis of evidence seized by state police officers incident to petitioners' arrest by those officers solely for the purpose of enforcing federal law. Id., at 314, 48 S.Ct., at 137—138. Notwithstanding the lack of probable cause for the arrest, id., at 313, 48 S.Ct., at 137, it would have been permissible under state law if effected by private individuals.5 It appears, moreover, that the officers were under direction from the Governor to aid in the enforcement of federal law. Id., at 315—317, 48 S.Ct., at 138. Accordingly, if the Fourth Amendment reached only to conduct impermissible under the law of the State, the Amendment would have had no application to the case. Yet this Court held the Fourth Amendment applicable and reversed petitioners' convictions as having been based upon evidence obtained through an unconstitutional search and seizure. Similarly, in Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927), the petitioner was convicted on the basis of evidence seized under a warrant issued, without probable cause under the Fourth Amendment, by a state court judge for a state law offense. At the invitation of state law enforcement officers, a federal prohibition agent participated in the search. This Court explicitly refused to inquire whether the warrant was 'good under the state law * * * since in no event could it constitute the basis for a federal search and seizure.' Id., at 29, 47 S.Ct., at 248 (emphasis added).6 And our recent decisions regarding electronic surveillance have made it clear beyond peradventure that the Fourth Amendment is not tied to the niceties of local trespass laws. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682—683, 5 L.Ed.2d 734 (1961). In light of these cases, respondents' argument that the Fourth Amendment serves only as a limitation on federal defenses to a state law claim, and not as an independent limitation upon the exercise of federal power, must be rejected.
8
Second. The interests protected by state laws regulating trespass and the invasion of privacy, and those protected by the Fourth Amendment's guarantee against unreasonable searches and seizures, may be inconsistent or even hostile. Thus, we may bar the door against an unwelcome private intruder, or call the police if he persists in seeking entrance. The availability of such alternative means for the protection of privacy may lead the State to restrict imposition of liability for any consequent trespass. A private citizen, asserting no authority other than his own, will not normally be liable in trespass if he demands, and is granted, admission to another's house. See W. Prosser, The Law of Torts § 18, pp. 109—110 (3d ed., 1964); 1 F. Harper & F. James, The Law of Torts § 1.11 (1956). But one who demands admission under a claim of federal authority stands in a far different position. Cf. Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 267—268, 65 L.Ed. 654 (1921). The mere invocation of federal power by a federal law enforcement official will normally render futile any attempt to resist an unlawful entry or arrest by resort to the local police; and a claim of authority to enter is likely to unlock the door as well. See Weeks v. United States, 232 U.S. 383, 386, 34 S.Ct. 341, 342, 58 L.Ed. 652 (1914); Amos v. United States, supra.7 'In such cases there is no safety for the citizen, except in the protection of the judicial tribunals, for rights wich have been invaded by the officers of the government, professing to act in its name. There remains to him but the alternative of resistance, which may amount to crime.' United States v. Lee, 106 U.S. 196, 219, 1 S.Ct. 240, 259, 27 L.Ed. 171 (1882).8 Nor is it adequate to answer that state law may take into account the different status of one clothed with the authority of the Federal Government. For just as state law may not authorize federal agents to violate the Fourth Amendment, Byars v. United States, supra; Weeks v. United States, supra; In re Ayers, 123 U.S. 443, 507, 8 S.Ct. 164, 183—184, 31 L.Ed. 216 (1887), neither may state law undertake to limit the extent to which federal authority can be exercised. In re Neagle, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55 (1890). The inevitable consequence of this dual limitation on state power is that the federal question becomes not merely a possible defense to the state law action, but an independent claim both necessary and sufficient to make out the plaintiff's cause of action. Cf. International Brotherhood of Boilermakers, etc. v. Hardeman, 401 U.S. 233, 241, 91 S.Ct. 609, 28 L.Ed.2d 10 (1971).
9
Third. That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition. Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty. See Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984 (1932); Nixon v. Herndon, 273 U.S. 536, 540, 47 S.Ct. 446, 71 L.Ed. 759 (1927); Swafford v. Templeton, 185 U.S. 487, 22 S.Ct. 783, 46 L.Ed. 1005 (1902); Wiley v. Sinkler, 179 U.S. 58, 21 S.Ct. 17, 45 L.Ed. 84 (1900); J. Landynski, Search and Seizure and the Supreme Court 28 et seq. (1966); N. Lasson, History and Development of the Fourth Amendment to the United States Constitution 43 et seq. (1937); Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U.Pa.L.Rev. 1, 8—33 (1968); cf. West v. Cabell, 153 U.S. 78, 14 S.Ct. 752, 38 L.Ed. 643 (1894); Lammon v. Feusier, 111 U.S. 17, 4 S.Ct. 286, 28 L.Ed. 337 (1884). Of course, the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation. But 'it is * * * well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.' Bell v. Hood, 327 U.S., at 684, 66 S.Ct., at 777 (footnote omitted.) The present case involves no special factors counseling hesitation in the absence of affirmative action by Congress. We are not dealing with a question of 'federal fiscal policy,' as in United States v. Standard Oil Co., 332 U.S. 301, 311, 67 S.Ct. 1604, 1609—1610, 91 L.Ed. 2067 (1947). In that case we refused to infer from the Government-soldier relationship that the United States could recover damages from one who negligently injured a soldier and thereby caused the Government to pay his medical expenses and lose his services during the course of his hospitalization. Noting that Congress was normally quite solicitous where the federal purse was involved, we pointed out that 'the United States (was) the party plaintiff to the suit. And the United States has power at any time to create the liability.' Id., at 316, 67 S.Ct., at 1612; see United States v. Gilman, 347 U.S. 507, 74 S.Ct. 695, 98 L.Ed. 898 (1954). Nor are we asked in this case to impose liability upon a congressional employee for actions contrary to no constitutional prohibition, but merely said to be in excess of the authority delegated to him by the Congress. Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963). Finally, we cannot accept respondents' formulation of the question as whether the availability of money damages is necessary to enforce the Fourth Amendment. For we have here no explicit congressional declaration that persons injured by a federal officer's violation of the Fourth Amendment may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress. The question is merely whether petitioner, if he can demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts. Cf. J.I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 (1964); Jacobs v. United States, 290 U.S. 13, 16, 54 S.Ct. 26, 27—28, 78 L.Ed. 142 (1933). 'The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.' Marbury v. Madison, 1 Cranch 137, 163, 2 L.Ed. 60 (1803). Having concluded that petitioner's complaint states a cause of action under the Fourth Amendment, supra, at 390—395, we hold that petitioner is entitled to recover money damages for any injuries he has suffered as a result of the agents' violation of the Amendment.
II
10
In addition to holding that petitioner's complaint had failed to state facts making out a cause of action, the District Court ruled that in any event respondents were immune from liability by virtue of their official position. 276 F.Supp., at 15. This question was not passed upon by the Court of Appeals, and accordingly we do not consider it here. The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.
11
So ordered.
12
Judgment reversed and case remanded.
13
Mr. Justice HARLAN, concurring in the judgment.
14
My initial view of this case was that the Court of Appeals was correct in dismissing the complaint, but for reasons stated in this opinion I am now persuaded to the contrary. Accordingly, I join in the judgment of reversal.
15
Petitioner alleged, in his suit in the District Court for the Eastern District of New York, that the defendants, federal agents acting under color of federal law, subjected him to a search and seizure contravening the requirements of the Fourth Amendment. He sought damages in the amount of $15,000 from each of the agents. Federal jurisdiction was claimed, inter alia,1 under 28 U.S.C. § 1331(a) which provides:
16
'The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.'
17
The District Court dismissed the conplaint for lack of federal jurisdiction under 28 U.S.C. § 1331(a) and failure to state a claim for which relief may be granted. 276 F.Supp. 12 (EDNY 1967). On appeal, the Court of Appeals concluded, on the basis of this Court's decision in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), that petitioner's claim for damages did '(arise) under the Constitution' within the meaning of 28 U.S.C. § 1331(a); but the District Court's judgment was affirmed on the ground that the complaint failed to state a claim for which relief can be granted. 409 F.2d 718 (CA2 1969).
18
In so concluding, Chief Judge Lumbard's opinion reasoned, in essence, that: (1) the framers of the Fourth Amendment did not appear to contemplate a 'wholly new federal cause of action founded directly on the Fourth Amendment,' id., at 721, and (2) while the federal courts had power under a general grant of jurisdiction to imply a federal remedy for the enforcement of a constitutional right, they should do so only when the absence of alternative remedies renders the constitutional command a 'mere 'form of words." Id., at 723. The Government takes essentially the same position here. Brief for Respondents 4—5. And two members of the Court add the contention that we lack the constitutional power to accord Bivens a remedy for damages in the absence of congressional action creating 'a federal cause of action for damages for an unreasonable search in violation of the Fourth Amendment.' Opinion of Mr. Justice BLACK, post, at 427; see also opinion of THE CHIEF JUSTICE, post, at 418, 422.
19
For the reasons set forth below, I am of the opinion that federal courts do have the power to award damages for violation of 'constitutionally protected interests' and I agree with the Court that a traditional judicial remedy such as damages is appropriate to the vindication of the personal interests protected by the Fourth Amendment.
20
* I turn first to the contention that the constitutional power of federal courts to accord Bivens damages for his claim depends on the passage of a statute creating a 'federal cause of action.' Although the point is not entirely free of ambiguity,2 I do not understand either the Government or my dissenting Brothers to maintain that Bivens' contention that he is entitled to be free from the type of official conduct prohibited by the Fourth Amendment depends on a decision by the State in which he resides to accord him a remedy. Such a position would be incompatible with the presumed availability of federal equitable relief, if a proper showing can be made in terms of the ordinary principles governing equitable remedies. See Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 776 777, 90 L.Ed. 939 (1946). However broad a federal court's discretion concerning equitable remedies, it is absolutely clear at least after Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)—that in a nondiversity suit a federal court's power to grant even equitable relief depends on the presence of a substantive right derived from federal law. Compare Guaranty Trust Co. v. York, 326 U.S. 99, 105—107, 65 S.Ct. 1464, 1467—1469, 89 L.Ed. 2079 (1945). with Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946). See also H. Hart & H. Wechsler, The Federal Courts and the Federal System 818—819 (1953).
21
Thus the interest which Bivens claims—to be free from official conduct in contravention of the Fourth Amendment—is a federally protected interest. See generally Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U.Pa.L.Rev. 1, 33—34 (1968).3 Therefore, the question of judicial power to grant Bivens damages is not a problem of the 'source' of the 'right'; instead, the question is whether the power to authorize damages as a judicial remedy for the vindication of a federal constitutional right is placed by the Constitution itself exclusively in Congress' hands.
II
22
The contention that the federal courts remedy in the absence of any express for a claimed invasion of his federal constitutional rights until Congress explicitly authorizes the remedy cannot rest on the notion that the decision to grant compensatory relief involves a resolution of policy considerations not susceptible of judicial discernment. Thus, in suits for damages based on violations of federal statutes lacking any express authorization of a damage remedy, this Court has authorized such relief where, in its view, damages are necessary to effectuate the congressional policy underpinning the substantive provisions of the statute. J.I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964); Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 213, 65 S.Ct. 235, 237, 89 L.Ed. 187 (1944). Cf. Wyandotte Transportation Co. v. United States, 389 U.S. 191, 201—204, 88 S.Ct. 379, 385—387, 19 L.Ed.2d 407 (1967).4
23
If it is not the nature of the remedy which is thought to render a judgment as to the appropriateness of damages inherently 'legislative,' then it must be the nature of the legal interest offered as an occasion for invoking otherwise appropriate judicial relief. But I do not think that the fact that the interest is protected by the Constitution rather than statute or common law justifies the assertion that federal courts are powerless to grant damages in the absence of explicit congressional action authorizing the remedy. Initially, I note that it would be at least anomalous to conclude that the federal judiciary—while competent to choose among the range of traditional judicial remedies to implement statutory and common-law policies, and even to generate substantive rules governing primary behavior in furtherance of broadly formulated policies articulated by statute or Constitution, see Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 923, 1 L.Ed.2d 972 (1957); United States v. Standard Oil Co., 332 U.S. 301, 304—311, 67 S.Ct. 1604, 1606 1610, 91 L.Ed. 2067 (1947); Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943)—is powerless to accord a damages remedy to vindicate social policies which, by virtue of their inclusion in the Constitution, are aimed predominantly at restraining the Government as an instrument of the popular will.
24
More importantly, the presumed availability of federal equitable relief against threatened invasions of constitutional interests appears entirely to negate the contention that the status of an interest as constitutionally protected divests federal courts of the power to grant damages absent express congressional authorization. Congress provided specially for the exercise of equitable remedial powers by federal courts, see Act of May 8, 1792, § 2, 1 Stat. 276; C. Wright, Law of Federal Courts 257 (2d ed., 1970), in part because of the limited availability of equitable remedies in state courts in the early days of the Republic. See Guaranty Trust Co. v. York, 326 U.S. 99, 104—105, 65 S.Ct. 1464, 1467—1468, 89 L.Ed. 2079 (1945). And this Court's decisions make clear that, at least absent congressional restrictions, the scope of equitable remedial discretion is to be determined according to the distinctive historical traditions of equity as an institution, Holmberg v. Armbrecht, 327 U.S. 392, 395 396, 66 S.Ct. 582, 584—585, 90 L.Ed. 743 (1946); Sprague v. Ticonic National Bank, 307 U.S. 161, 165—166, 59 S.Ct. 777, 779 780, 83 L.Ed. 1184 (1939). The reach of a federal district court's 'inherent equitable powers,' Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 460, 77 S.Ct. 912, 919—920, 1 L.Ed.2d 972 (Burton, J., concurring in result), is broad indeed, e.g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); nonetheless, the federal judiciary is not empowered to grant equitable relief in the absence of congressional action extending jurisdiction over the subject matter of the suit. See Textile Workers Union v. Lincoln Mills, supra, 353 U.S., at 460, 77 S.Ct., at 919—920 (Burton, J., concurring in result); Katz, 117 U.Pa.L.Rev., at 43.5
25
If explicit congressional authorization is an absolute prerequisite to the power of a federal court to accord compensatory relief regardless of the necessity or appropriateness of damages as a remedy simply because of the status of a legal interest as constitutionally protected, then it seems to me that explicit congressional authorization is similarly prerequisite to the exercise of equitable remedial discretion in favor of constitutionally protected interests. Conversely, if a general grant of jurisdiction to the federal courts by Congress is thought adequate to empower a federal court to grant equitable relief for all areas of subject-matter jurisdiction enumerated therein, see 28 U.S.C. § 1331(a), then it seems to me that the same statute is sufficient to empower a federal court to grant a traditional remedy at law.6 Of course, the special historical traditions governing the federal equity system, see Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), might still bear on the comparative appropriateness of granting equitable relief as opposed to money damages. That possibility, however, relates, not to whether the federal courts have the power to afford one type of remedy as opposed to the other, but rather to the criteria which should govern the exercise of our power. To that question, I now pass.
III
26
The major thrust of the Government's position is that, where Congress has not expressly authorized a particular remedy, a federal court should exercise its power to accord a traditional form of judicial relief at the behest of a litigant, who claims a constitutionally protected interest has been invaded, only where the remedy is 'essential,' or 'indispensable for vindicating constitutional rights.' Brief for Respondents 19, 24. While this 'essentially' test is most clearly articulated with respect to damage remedies, apparently the Government believes the same test explains the exercise of equitable remedial powers. Id., at 17—18. It is argued that historically the Court has rarely exercised the power to accord such relief in the absence of an express congressional authorization and that '(i)f Congress had thought that federal officers should be subject to a law different than state law, it would have had no difficulty in saying so, as it did with respect to state officers * * *.' Id., at 20—21; see 42 U.S.C. § 1983. Although conceding that the standard of determinng whether a damage remedy should be utilized to effectuate statutory policies is one of 'necessity' or 'appropriateness,' see J. I. Case Co. v. Borak, 377 U.S. 426, 432, 84 S.Ct. 1555, 1559—1560, 12 L.Ed.2d 423 (1964); United States v. Standard Oil Co., 332 U.S. 301, 307, 67 S.Ct. 1604 (1947), the Government contends that questions concerning congressional discretion to modify judicial remedies relating to constitutionally protected interests warrant a more stringent constraint on the exercise of judicial power with respect to this class of legally protected interests. Brief for Respondents at 21—22.
27
These arguments for a more stringent test to govern the grant of damages in constitutional cases7 seem to be adequately answered by the point that the judiciary has a particular responsibility to assure the vindication of constitutional interests such as those embraced by the Fourth Amendment. To be sure, 'it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.' Missouri, Kansas & Texas R. Co. of Texas v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 639, 48 L.Ed. 971 (1904). But it must also be recognized that the Bill of Rights is particularly intended to vindicate the interests of the individual in the face of the popular will as expressed in legislative majorities; at the very least, it strikes me as no more appropriate to await express congressional authorization of traditional judicial relief with regard to these legal interests than with respect to interests protected by federal statutes.
28
The question then, is, as I see it, whether compensatory relief is 'necessary' or 'appropriate' to the vindication of the interest asserted. Cf. J. I. Case Co. v. Borak, supra, 377 U.S., at 432, 84 S.Ct., at 1559—1560; United States v. Standard Oil Co., supra, 332 U.S., at 307, 67 S.Ct., at 1607—1608; Hill, Constitutional Remedies, 69 Col.L.Rev. 1109, 1155 (1969); Katz, 117 U.Pa.L.Rev., at 72. In resolving that question, it seems to me that the range of policy considerations we may take into account is at least as broad as the range of a legislature would consider with respect to an express statutory authorization of a traditional remedy. In this regard I agree with the Court that the appropriateness of according Bivens compensatory relief does not turn simply on the deterrent effect liability will have on federal official conduct.8 Damages as a traditional form of compensation for invasion of a legally protected interest may be entirely appropriate even if no substantial deterrent effects on future official lawlessness might be thought to result. Bivens, after all, has invoked judicial processes claiming entitlement to compensation for injuries resulting from allegedly lawless official behavior, if those injuries are properly compensable in money damages. I do not think a court of law—vested with the power to accord a remedy—should deny him his relief simply because he cannot show that future lawless conduct will thereby be deterred.
29
And I think it is clear that Bivens advances a claim of the sort that, if proved, would be properly compensable in damages. The personal interests protected by the Fourth Amendment are those we attempt to capture by the notion of 'privacy'; while the Court today properly points out that the type of harm which officials can inflict when they invade protected zones of an individual's life are different from the types of harm private citizens inflict on one another, the experience of judges in dealing with private trespass and false imprisonment claims supports the conclusion that courts of law are capable of making the types of judgment concerning causation and magnitude of injury necessary to accord meaningful compensation for invasion of Fourth Amendment rights.9
30
On the other hand, the limitations on state remedies for violation of common-law rights by private citizens argue in favor of a federal damages remedy. The injuries inflicted by officials acting under color of law, while no less compensable in damages than those inflicted by private parties, are substantially different in kind, as the Court's opinion today discusses in detail. See Monroe v. Pape, 365 U.S. 167, 195, 81 S.Ct. 473, 488, 5 L.Ed.2d 492 (1961) (Harlan, J., concurring). It seems to me entirely proper that these injuries be compensable according to uniform rules of federal law, especially in light of the very large element of federal law which must in any event control the scope of official defenses to liability. See Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.,Ct. 1441, 1445—1446, 10 L.Ed.2d 605 (1963); Monroe v. Pape, supra, 365 U.S., at 194—195, 81 S.Ct., at 487—488 (Harlan, J., concurring); Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed. 1454 (1959). Certainly, there is very little to be gained from the standpoint of federalism by preserving different rules of liability for federal officers dependent on the State where the injury occurs. Cf. United States v. Standard Oil Co., 332 U.S. 301, 305—311, 67 S.Ct. 1604, 1606 1610, 91 L.Ed. 2067 (1947).
31
Putting aside the desirability of leaving the problem of federal official liability to the vagaries of common-law actions, it is apparent that some form of damages is the only possible remedy for someone in Bivens' alleged position. It will be a rare case indeed in which an individual in Bivens' position will be able to obviate the harm by securing injunctive relief from any court. However desirable a direct remedy against the Government might be as a substitute for individual official liability, the sovereign still remains immune to suit. Finally, assuming Bivens' innocence of the crime charged, the 'exclusionary rule' is simply irrelevant. For people in Bivens' shoes, it is damages or nothing.
32
The only substantial policy consideration advanced against recognition of a federal cause of action for violation of Fourth Amendment rights by federal officials is the incremental expenditure of judicial resources that will be necessitated by this class of litigation. There is, however, something ultimately self-defeating about this argument. For if, as the Government contends, damages will rarely be realized by plaintiffs in these cases because of jury hostility, the limited resources of the official concerned, etc., then I am not ready to assume that there will be a significant increase in the expenditure of judicial resources on these claims. Few responsible lawyers and plaintiffs are likely to choose the course of litigation if the statistical chances of success are truly de minimis. And I simply cannot agree with my Brother BLACK that the possibility of 'frivolous' claims if defined simply as claims with no legal merit—warrants closing the courthouse doors to people in Bivens' situation. There are other ways, short of that, of coping with frivolous lawsuits.
33
On the other hand, if—as I believe is the case with respect, at least, to the most flagrant abuses of official power—damages to some degree will be available when the option of litigation is chosen, then the question appears to be how Fourth Amendment interests rank on a scale of social values compared with, for example, the interests of stockholders defrauded by misleading proxies. See J. I. Case Co. v. Borak, supra. Judicial resources, I am well aware, are increasingly scarce these days. Nonetheless, when we automatically close the courthouse door solely on this basis, we implicitly express a value judgment on the comparative importance of classes of legally protected interests. And current limitations upon the effective functioning of the courts arising from budgetary inadequacies should not be permitted to stand in the way of the recognition of otherwise sound constitutional principles.
34
Of course, for a variety of reasons, the remedy may not often be sought. See generally Foote, Tort Remedies for Police Violations of Individual Rights, 39 Minn.L.Rev. 493 (1955). And the countervailing interests in efficient law enforcement of course argue for a protective zone with respect to many types of Fourth Amendment violations. Cf. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959) (opinion of Harlan, J.). But, while I express no view on the immunity defense offered in the instant case, I deem it proper to venture the thought that at the very least such a remedy would be available for the most flagrant and patently unjustified sorts of police conduct. Although litigants may not often choose to seek relief, it is important, in a civilized society, that the judicial branch of the Nation's government stand ready to afford a remedy in these circumstances. It goes without saying that I intimate no view on the merits of petitioner's underlying claim.
35
For these reasons, I concur in the judgment of the Court.
36
Mr. Chief Justice BURGER, dissenting.
37
I dissent from today's holding which judicially creates a damage remedy not provided for by the Constitution and not enacted by Congress. We would more surely preserve the important values of the doctrine of separation of powers—and perhaps get a better result—by recommending a solution to the Congress as the branch of government in which the Constitution has vested the legislative power. Legislation is the business of the Congress, and it has the facilities and competence for that task—as we do not. Professor Thayer, speaking of the limits on judicial power, albeit in another context, had this to say:1
38
'And if it be true that the holders of legislative power are careless or evil, yet the constitutional duty of the court remains untouched; it cannot rightly attempt to protect the people, by undertaking a function not its own. On the other hand, by adhering rigidly to its own duty, the court will help, as nothing else can, to fix the spot where responsibility lies, and to bring down on that precise locality the thunderbolt of popular condemnation. * * * For that course—the true course of judicial duty always—will powerfully help to bring the people and their representatives to a sense of their own responsibility.'
39
This case has significance far beyond its facts and its holding. For more than 55 years this Court has enforced a rule under which evidence of undoubted reliability and probative value has been suppressed and excluded from criminal cases whenever it was obtained in violation of the Fourth Amendment. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Boyd v. United States, 116 U.S. 616, 633, 6 S.Ct. 524, 533, 29 L.Ed. 746 (1886) (dictum). This rule was extended to the States in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).2 The rule has rested on a theory that suppression of evidence in these circumstances was imperative to deter law enforcement authorities from using improper methods to obtain evidence.
40
The deterrence theory underlying the suppression doctrine, or exclusionary rule, has a certain appeal in spite of the high price society pays for such a drastic remedy. Notwithstanding its plausibility, many judges and lawyers and some of our most distinguished legal scholars have never quite been able to escape the force of Cardozo's statement of the doctrine's anomalous result:
41
'The criminal is to go free because the constable has blundered. * * * A room is searched against the law, and the body of a murdered man is found. * * * The privacy of the home has been infringed, and the murderer goes free.' People v. Defore, 242 N.Y. 13, 21, 23—24, 150 N.E. 585, 587, 588 (1926).3
42
The plurality opinion in Irvine v. California, 347 U.S. 128, 136, 74 S.Ct. 381, 385, 98 L.Ed. 561 (1954), catalogued the doctrine's defects:
43
Rejection of the evidence does nothing to punish the wrong-doing official, while it may, and likely will, release the wrong-doing defendant. It deprives society of its remedy against one lawbreaker because he has been pursued by another. It protects one against whom incriminating evidence is discovered, but does nothing to protect innocent persons who are the victims of illegal but fruitless searches.'
44
From time to time members of the Court, recognizing the validity of these protests, have articulated varying alternative justifications for the suppression of important evidence in a criminal trial. Under one of these alternative theories the rule's foundation is shifted to the 'sporting contest' thesis that the government must 'play the game fairly' and cannot be allowed to profit from its own illegal acts. Olmstead v. United States, 277 U.S. 438, 469, 471, 48 S.Ct. 564, 569, 570, 72 L.Ed. 944 (1928) (dissenting opinions); see Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1968). But the exclusionary rule does not ineluctably flow from a desire to ensure that government plays the 'game' according to the rules. If an effective alternative remedy is available, concern for official observance of the law does not require adherence to the exclusionary rule. Nor is it easy to understand how a court can be thought to endorse a violation of the Fourth Amendment by allowing illegally seized evidence to be introduced against a defendant if an effective remedy is provided against the government.
45
The exclusionary rule has also been justified on the theory that the relationship between the Self-Incrimination Clause of the Fifth Amendment and the Fourth Amendment requires the suppression of evidence seized in violation of the latter. Boyd v. United States, supra, 116 U.S., at 633, 6 S.Ct., at 533 (dictum); Wolf v. Colorado, 338 U.S. 25, 47, 48, 69 S.Ct. 1359, 1368, 93 L.Ed. 1782 (1949) (Rutledge, J., dissenting); Mapp v. Ohio, supra, 367 U.S. at 661—666, 81 S.Ct. at 1694—1697 (Black, J., concurring).
46
Even ignoring, however, the decisions of this Court that have held that the Fifth Amendment applies only to 'testimonial' disclosures, United States v. Wade, 388 U.S. 218, 221—223, 87 S.Ct. 1926, 1929, 18 L.Ed.2d 1149 (1967); Schmerber v. California, 384 U.S. 757, 764 and n. 8, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966), it seems clear that the Self-Incrimination Clause does not protect a person from the seizure of evidence that is incriminating. It protects a person only from being the conduit by which the police acquire evidence. Mr. Justice Holmes once put it succinctly, 'A party is privileged from producing the evidence, but not from its production.' (Johnson v. United States, 228 U.S. 457, 458, 33 S.Ct. 572, 57 L.Ed. 919 (1913).
47
It is clear, however, that neither of these thories undergirds the decided cases in this Court. Rather the exclusionary rule has rested on the deterrent rationale—the hope that law enforcement officials would be deterred from unlawful searches and seizures if the illegally seized, albeit trustworthy, evidence was suppressed often enough and the courts persistently enough deprived them of any benefits they might have gained from their illegal conduct.
48
This evidentiary rule is unique to American jurisprudence. Although the English and Canadian legal systems are highly regarded, neither has adopted our rule. See Martin, The Exclusionary Rule Under Foreign Law—Canada, 52 J.Crim.L.C. & P.S. 271, 272 (1961); Williams, The Exclusionary Rule Under Foreign Law England, 52 J.Crim.L.C. & P.S. 272 (1961).
49
I do not question the need for some remedy to give meaning and teeth to the constitutional guarantees against unlawful conduct by government officials. Without some effective sanction, these protections would constitute little more than rhetoric. Beyond doubt the conduct of some officials requires sanctions as cases like Irvine indicate. But the hope that this objective could be accomplished by the exclusion of reliable evidence from criminal trials was hardly more than a wistful dream. Although I would hesitate to abandon it until some meaningful substitute is developed, the history of the suppression doctrine demonstrates that it is both conceptually sterile and practically ineffective in accomplishing its stated objective. This is illustrated by the paradox that an unlawful act against a totally innocent person such as petitioner claims to be—has been left without an effective remedy, and hence the Court finds it necessary now—55 years later—to construct a remedy of its own.
50
Some clear demonstration of the benefits and effectiveness of the exclusionary rule is required to justify it in view of the high price it extracts from society—the release of countless guilty criminals. See Allen, Federalism and the Fourth Amendment: A Requiem for Wolf, 1961 Sup.Ct.Rev. 1, 33 n. 172. But there is no empirical evidence to support the claim that the rule actually deters illegal conduct of law enforcement officials. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665, 667 (1970).
51
There are several reasons for this failure. The rule does not apply any direct sanction to the individual official whose illegal conduct results in the exclusion of evidence in a criminal trial. With rare exceptions law enforcement agencies do not impose direct sanctions on the individual officer responsible for a particular judicial application of the suppression doctrine. Id., at 710. Thus there is virtually nothing done to bring about a change in his practices. The immediate saction triggered by the application of the rule is visited upon the prosecutor whose case against a criminal is either weakened or destroyed. The doctrine deprives the police in no real sense; except that apprehending wrongdoers is their business, police have no more stake in successful prosecutions than prosecutors or the public.
52
The suppression doctrine vaguely assumes that law enforcement is a monolithic governmental enterprise. For example, the dissenters in Wolf v. Colorado, supra, 338 U.S., at 44, 69 S.Ct., at 1370, argued that:
53
'Only by exclusion can we impress upon the zealous prosecutor that violation of the Constitution will do him no good. And only when that point is driven home can the prosecutor be expected to emphasize the importance of observing the constitutional demands in his instructions to the police.' (Emphasis added.)
54
But the prosecutor who loses his case because of police misconduct is not an official in the police department; he can rarely set in motion any corrective action or administrative penalties. Moreover, he does not have control or direction over police procedures or police actions that lead to the exclusion of evidence. It is the rare exception when a prosecutor takes part in arrests, searches, or seizures so that he can guide police action.
55
Whatever educational effect the rule conceivably might have in theory is greatly diminished in fact by the realities of law enforcement work. Policemen do not have the time, inclination, or training to read and grasp the nuances of the appellate opinions that ultimately define the standards of conduct they are to follow. The issues that these decisions resolve often admit of neither easy nor obvious answers, as sharply divided courts on what is or is not 'reasonable' amply demonstrate.4 Nor can judges, in all candor, forget that opinions sometimes lack helpful clarity.
56
The presumed educational effect of judicial opinions is also reduced by the long time lapse—often several years—between the original police action and its final judicial evaluation. Given a policeman's pressing responsibilities, it would be surprising if he ever becomes aware of the final result after such a delay. Finally, the exclusionary rule's deterrent impact is diluted by the fact that there are large areas of police activity that do not result in criminal prosecutions—hence the rule has virtually no applicability and no effect in such situations. Oaks, supra, at 720—724.
57
Today's holding seeks to fill one of the gaps of the suppression doctrine—at the price of impinging on the legislative and policy functions that the Constitution vests in Congress. Nevertheless, the holding serves the useful purpose of exposing the fundamental weaknesses of the suppression doctrine. Suppressing unchallenged truth has set guilty criminals free but demonstrably has neither deterred deliberate violations of the Fourth Amendment nor decreased those errors in judgment that will inevitably occur given the pressures inherent in police work having to do with serious crimes.
58
Although unfortunately ineffective, the exclusionary rule has increasingly been characterized by a single, monolithic, and drastic judicial response to all official violations of legal norms. Inadvertent errors of judgment that do not work any grave injustice will inevitably occur under the pressure of police work. These honest mistakes have been treated in the same way as deliberate and flagrant Irvine-type violations of the Fourth Amendment. For example, in Miller v. United States, 357 U.S. 301, 309—310, 78 S.Ct. 1190, 1195—1196, 2 L.Ed.2d 1332 (1958), reliable evidence was suppressed because of a police officer's failure to say a 'few more words' during the arrest and search of a known narcotics peddler.
59
This Court's decision announced today in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 dramatically illustrates the extent to which the doctrine represents a mechanically inflexible response to widely varying degrees of police error and the resulting high price that society pays. I dissented in Coolidge primarily because I do not believe the Fourth Amendment had been violated. Even on the Court's contrary premise, however, whatever violation occurred was surely insufficient in nature and extent to justify the drastic result dictated by the suppression doctrine. A fair trial by jury has resolved doubts as to Coolidge's guilt. But now his conviction on retrial is placed in serious question by the remand for a new trial—years after the crime—in which evidence that the New Hampshire courts found relevant and reliable will be withheld from the jury's consideration. It is hardly surprising that such results are viewed with incomprehension by nonlawyers in this country and lawyers, judges, and legal scholars the world over.
60
Freeing either a tiger or a mouse in a schoolroom is an illegal act, but no rational person would suggest that these two acts should be punished in the same way. From time to time judges have occasion to pass on regulations governing police procedures. I wonder what would be the judicial response to a police order authorizing 'shoot to kill' with respect to every fugitive. It is easy to predict our collective wrath and outrage. We, in common with all rational minds, would say that the police response must relate to the gravity and need; that a 'shoot' order might conceivably be tolerable to prevent the escape of a convicted killer but surely not for a car thief, a pickpocket or a shoplifter.
61
I submit that society has at least as much right to expect rationally graded responses from judges in place of the universal 'capital punishment' we inflict on all evidence when police error is shown in its acquisition. See ALI, Model Code of Pre-Arraignment Procedure § §§ 8.02(2), p. 23 (Tent. Draft No. 4, 1971), reprinted in the Appendix to this opinion. Yet for over 55 years, and with increasing scope and intensity as today's Coolidge holding shows, our legal system has treated vastly dissimilar cases as if they were the same. Our adherence to the exclusionary rule, our resistance to change, and our refusal even to acknowledge the need for effective enforcement mechanisms bring to mind Holmes' wellknown statement:
62
'It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.' Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897).
63
In characterizing the suppression doctrine as an anomalous and ineffective mechanism with which to regulate law enforcement, I intend no reflection on the motivation of those members of this Court who hoped it would be a means of enforcing the Fourth Amendment. Judges cannot be faulted for being offended by arrests, searches, and seizures that violate the Bill of Rights or statutes intended to regulate public officials. But we can and should be faulted for clinging to an unworkable and irrational concept of law. My criticism is that we have taken so long to find better ways to accomplish these desired objectives. And there are better ways.
64
Instead of continuing to enforce the suppression doctrine inflexibly, rigidly, and mechanically, we should view it as one of the experimental steps in the great tradition of the common law and acknowledge its shortcomings. But in the same spirit we should be prepared to discontinue what the experience of over half a century has shown nither deters errant officers nor affords a remedy to the totally innocent victims of official misconduct.
65
I do not propose, however, that we abandon the suppression doctrine until some meaningful alternative can be developed. In a sense our legal system has become the captive of its own creation. To overrule Weeks and Mapp, even assuming the Court was now prepared to take that step, could raise yet new problems. Obviously the public interest would be poorly served if law enforcement officials were suddenly to gain the impression, however erroneous, that all constitutional restraints on police had somehow been removed—that an open season on 'criminals' had been declared. I am concerned lest some such mistaken impression might be fostered by a flat overruling of the suppression doctrine cases. For years we have relied upon it as the exclusive remedy for unlawful official conduct; in a sense we are in a situation akin to the narcotics addict whose dependence on drugs precludes any drastic or immediate withdrawal of the supposed prop, regardless of how futile its continued use may be.
66
Reasonable and effective substitutes can be formulated if Congress would take the lead, as it did for example in 1946 in the Federal Tort Claims Act. I see no insuperable obstacle to the elimination of the suppression doctrine if Congress would provide some meaningful and effective remedy against unlawful conduct by government officials.
67
The problems of both error and deliberate misconduct by law enforcement officials call for a workable remedy. Private damage actions against individual police officers concededly have not adequately met this requirement, and it would be fallacious to assume today's work of the Court in creating a remedy will really accomplish its stated objective. There is some validity to the claims that juries will not return verdicts against individual officers except in those unusual cases where the violation has been flagrant or where the error has been complete, as in the arrest of the wrong person or the search of the wrong house. there is surely serious doubt, for example, that a drug peddler caught packing his wares will be able to arouse much sympathy in a jury on the ground that the police officer did not announce his identity and purpose fully or because he failed to utter a 'few more words.' See Miller v. United States, supra. Jurors may well refuse to penalize a police officer at the behest of a person they believe to be a 'criminal' and probably will not punish an officer for honest errors of judgment. In any event an actual recovery depends on finding non-exempt assets of the police officer from which a judgment can be satisfied.
68
I conclude, therefore, that an entirely different remedy is necessary but it is one that in my view is as much beyond judicial power as the step the Court takes today. Congress should develop an administrative or quasi-judicial remedy against the government itself to afford compensation and restitution for persons whose Fourth Amendment rights have been violated. The venerable doctrine of respondeat superior in our tort law provides an entirely appropriate conceptual basis for this remedy. If, for exemple, a security guard privately employed by a department store commits an assault or other tort on a customer such as an improper search, the victim has a simple and obvious remedy—an action for money damages against the guard's employer, the department store. W. Prosser, The Law of Torts § 68, pp. 470—480 (3d ed., 1964).5 Such a statutory scheme would have the added advantage of providing some remedy to the completely innocent persons who are sometimes the victims of illegal police conduct—something that the suppression doctrine, of course, can never accomplish.
69
A simple structure would suffice.6 For example, Congress could enact a statute along the following lines:
70
(a) a waiver of sovereign immunity as to the illegal acts of law enforcement officials committed in the performance of assigned duties;
71
(b) the creation of a cause of action for damages sustained by any person aggrieved by conduct of governmental agents in violation of the Fourth Amendment or statutes regulating official conduct;
72
(c) the creation of a tribunal, quasijudicial in nature or perhaps patterned after the United States Court of Claims to adjudicate all claims under the statute;
73
(d) a provision that this statutory remedy is in lieu of the exclusion of evidence secured for use in criminal cases in violation of the Fourth Amendment; and
74
(e) a provision directing that no evidence, otherwise admissible, shall be excluded from any criminal proceeding because of violation of the Fourth Amendment.
75
I doubt that lawyers serving on such a tribunal would be swayed either by undue sympathy for officers or by the prejudice against 'criminals' that has sometimes moved lay jurors to deny claims. In addition to awarding damages, the record of the police conduct that is condemned would undoubtedly become a relevant part of an officer's personnel file so that the need for additional training or disciplinary action could be identified or his future usefulness as a public official evaluated. Finally, appellate judicial review could be made available on much the same basis that it is now provided as to district courts and regulatory agencies. This would leave to the courts the ultimate responsibility for determining and articulating standards.
76
Once the constitutional validity of such a statute is established,7 it can reasonably be assumed that the States would develop their own remedial systems on the federal model. Indeed there is nothing to prevent a State from enacting a comparable statutory scheme without waiting for the Congress. Steps along these lines would move our system toward more responsible law enforcement on the one hand and away from the irrational and drastic results of the suppression doctrine on the other. Independent of the alternative embraced in this dissenting opinion, I believe the time has come to re-examine the scope of the exclusionary rule and consider at least some narrowing of its thrust so as to eliminate the anomalies it has produced.
77
In a country that prides itself on innovation, inventive genius, and willingness to experiment, it is a paradox that we should cling for more than a half century to a legal mechanism that was poorly designed and never really worked. I can only hope now that the Congress will manifest a willingness to view realistically the hard evidence of the half-century history of the suppression doctrine revealing thousands of cases in which the criminal was set free because the constable blundered and virtually no evidence that innocent victims of police error—such as petitioner claims to be—have been afforded meaningful redress.
78
APPENDIX TO OPINION OF BURGER, C.J., DISSENTING
79
It is interesting to note that studies over a period of years led the American Law Institute to propose the following in its tentative draft of a model prearraignment code:
80
'(2) Determination. Unless otherwise required by the Constitution of the United States or of this State, a motion to suppress evidence based upon a violation of any of the provisions of this code shall be granted only if the court finds that such violation was substantial. In determining whether a violation is substantial the court shall consider all the circumstances, including:
81
'(a) the importance of the particular interest violated;
82
'(b) the extent of deviation from lawful conduct;
83
'(c) the extent to which the violation was willful;
84
'(d) the extent to which privacy was invaded;
85
'(e) the extent to which exclusion will tend to prevent violations of this Code;
86
'(f) whether, but for the violation, the things seized would have been discovered; and
87
'(g) the extent to which the violation prejudiced the moving party's ability to support his motion, or to defend himself in the proceeding in which the things seized are sought to be offered in evidence against him.
88
'(3) Fruits of Prior Unlawful Search. If a search or seizure is carried out in such a manner that things seized in the course of the search would be subject to a motion to suppress under subsection (1), and if as a result of such search or seizure other evidence is discovered subsequently and offered against a defendant, such evidence shall be subject to a motion to suppress unless the prosecution establishes that such evidence would probably have been discovered by law enforcement authorities irrespective of such search or seizure, and the court finds that exclusion of such evidence is not necessary to deter violations of this Code.'
89
ALI, Model Code of Pre-Arraignment Procedure §§ §§ 8.02(2), (3), pp. 23—24 (Tent. Draft No. 4, 1971) (emphasis supplied).
90
The Reporters' views on the exclusionary rule are also reflected in their comment on the proposed section:
91
'The Reporters wish to emphasize that they are not, as a matter of policy, wedded to the exclusionary rule as the sole or best means of enforcing the Fourth Amendment. See Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. of Chi.L.Rev. 665 (1970). Paragraph (2) embodies what the Reporters hope is a more flexible approach to the problem, subject of course to constitutional requirements.' Id., comment, at 26—27.
92
This is but one of many expressions of disenchantment with the exclusionary rule; see also:
93
1. Barrett, Exclusion of Evidence Obtained by Illegal Searches—A Comment on People vs. Cahan, 43 Calif.L.Rev. 565 (1955).
94
2. Burns, Mapp v. Ohio: An All-American Mistake, 19 DePaul L.Rev. 80 (1969).
95
3. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929, 951, 952—954 (1965).
96
4. F.Inbau, J. Thompson, & C. Sowle, Cases and Comments on Criminal Justice; Criminal Law Administration 1—84 (2d ed., 1968).
97
5. LaFave, Improving Police Performance Through the Exclusionary Rule (pts. 1 & 2), 30 Mo.L.Rev. 391, 566 (1965).
98
6. LaFave & Remington, Controlling the Police: The Judge's Role in Making and Reviewing Law Enforcement Decisions, 63 Mich.L.Rev. 987 (1965).
99
7. N. Morris & G. Hawkins, The Honest Politician's Guide to Crime Control 101 (1970).
100
8. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665 (1970).
101
9. Plumb, Illegal Enforcement of the Law, 24 Cornell L.Q. 327 (1939).
102
10. Schaefer, The Fourteenth Amendment and Sanctity of the Person, 64 Nw.U.L.Rev. 1 (1969).
103
11. Waite, Judges and the Crime Burden, 54 Mich.L.Rev. 169 (1955).
104
12. Waite, Evidence—Police Regulation by Rules of Evidence, 42 Mich.L.Rev. 679 (1944).
105
13. Wigmore, Using Evidence Obtained by Ilegal Search and Seizure, 8 A.B.A.J. 479 (1922).
106
14. 8 J. Wigmore, Evidence § 2184a (McNaughton rev., 1961).
107
Mr. Justice BLACK, dissenting.
108
In my opinion for the Court in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), we did as the Court states, reserve the question whether an unreasonable search made by a federal officer in violation of the Fourth Amendment gives the subject of the search a federal cause of action for damages against the officers making the search. There can be no doubt that Congress could create a federal cause of action for damages for an unreasonable search in violation of the Fourth Amendment. Although Congress has created such a federal cause of action against state officials acting under color of state law,* it has never created such a cause of action against federal officials. If it wanted to do so, Congress could, of course, create a remedy against federal officials who violate the Fourth Amendment in the performance of their duties. But the point of this case and the fatal weakness in the Court's judgment is that neither Congress nor the State of New York has enacted legislation creating such a right of action. For us to do so is, in my judgment, an exercise of power that the Constitution does not give us.
109
Even if we had the legislative power to create a remedy, there are many reasons why we should decline to create a cause of action where none has existed since the formation of our Government. The courts of the United States as well as those of the States are choked with lawsuits. The number of cases on the docket of this Court have reached an unprecedented volume in recent years. A majority of these cases are brought by citizens with substantial complaints—persons who are physically or economically injured by torts or frauds or governmental infringement of their rights; persons who have been unjustly deprived of their liberty or their property; and persons who have not yet received the equal opportunity in education, employment, and pursuit of happiness that was the dream of our forefathers. Unfortunately, there have also been a growing number of frivolous lawsuits, particularly actions for damages against law enforcement officers whose conduct has been judicially sanctioned by state trial and appellate courts and in many instances even by this Court. My fellow Justices on this Court and our brethren throughout the federal judiciary know only too well the time-consuming task of conscientiously poring over hundreds of thousands of pages of factual allegations of misconduct by police, judicial, and corrections officials. Of course, there are instances of legitimate grievances, but legislators might well desire to devote judicial resources to other problems of a more serious nature.
110
We sit at the top of a judicial system accused by some of nearing the point of collapse. Many criminal defendants do not receive speedy trials and neither society nor the accused are assured of justice when inordinate delays occur. Citizens must wait years to litigate their private civil suits. Substantial changes in correctional and parole systems demand the attention of the lawmakers and the judiciary. If I were a legislator I might well find these and other needs so pressing as to make me believe that the resources of lawyers and judges should be devoted to them rather than to civil damage actions against officers who generally strive to perform within constitutional bounds. There is also a real danger that such suits might deter officials from the proper and honest performance of their duties.
111
All of these considerations make imperative careful study and weighing of the arguments both for and against the creation of such a remedy under the Fourth Amendment. I would have great difficulty for myself in resolving the competing policies, goals, and priorities in the use of resources, if I thought it were my job to resolve those questions. But that is not my task. The task of evaluating the pros and cons of creating judicial remedies for particular wrongs is a matter for Congress and the legislatures of the States. Congress has not provided that any federal court can entertain a suit against a federal officer for violations of Fourth Amendment rights occurring in the performance of his duties. A strong inference can be drawn from creation of such actions against state officials that Congress does not desire to permit such suits against federal officials. Should the time come when Congress desires such lawsuits, it has before it a model of valid legislation, 42 U.S.C. § 1983, to create a damage remedy against federal officers. Caess could be cited to support the legal proposition which I assert, but it seems to me to be a matter of common understanding that the business of the judiciary is to interpret the laws and not to make them.
112
I dissent.
113
Mr. Justice BLACKMUN, dissenting.
114
I, too, dissent. I do so largely for the reasons expressed in Chief Judge Lumbard's thoughtful and scholarly opinion for the Court of Appeals. But I also feel that the judicial legislation, which the Court by its opinion today concededly is effectuating, opens the door for another avalanche of new federal cases. Whenever a suspect imagines, or chooses to assert, that a Fourth Amendment right has been violated, he will now immediately sue the federal officer in federal court. This will tend to stultify proper law enforcement and to make the day's labor for the honest and conscientious officer even more onerous and more critical. Why the Court moves in this direction at this time of our history, I do not know. The Fourth Amendment was adopted in 1791, and in all the intervening years neither the Congress nor the Court has seen fit to take this step. I had thought that for the truly aggrieved person other quite adequate remedies have always been available. If not, it is the Congress and not this Court that should act.
1
Petitioner's complaint does not explicitly state that the agents had no probable cause for his arrest, but it does allege that the arrest was 'done unlawfully, unreasonably and contrary to law.' App. 2. Petitioner's affidavit in support of his motion for summary judgment swears that the search was 'without cause, consent or warrant,' and that the arrest was 'without cause, reason or warrant.' App. 28.
2
The agents were not named in petitioner's complaint, and the District Court ordered that the compaint be served upon 'those federal agents who it is indicated by the records of the United States Attorney participated in the November 25, 1965, arrest of the (petitioner).' App. 3. Five agents were ultimately served.
3
Judge Waterman, concurring, expressed the thought that 'the federal courts can * * * entertain this cause of action irrespective of whether a statute exists specifically authorizing a federal suit against federal officers for damages' for acts such as those alleged. In his view, however, the critical point was recognition that some cause of action existed, albeit a state-created one, and in consequence he was willing 'as of now' to concur in the holding of the Court of Appeals. 409 F.2d, at 726 (emphasis in original).
4
'(S)ince it is the present policy of the Department of Justice to remove to the federal courts all suits in state courts against federal officers for trespass or false imprisonment, a claim for relief, whether based on state common law or directly on the Fourth Amendment will ultimately be heard in a federal court.' Brief for Respondents 13 (citations omitted); see 28 U.S.C. § 1442(a); Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). In light of this, it is difficult to understand our Brother BLACKMUN's complaint that our holding today 'opens the door for another avalanche of new federal cases.' Post, at 430. In estimating the magnitude of any such 'avalanche,' it is worth noting that a survey of comparable actions against state officers under 42 U.S.C. § 1983 found only 53 reported cases in 17 years (1951—1967) that survived a motion to dismiss. Ginger & Bell, Police Misconduct Litigation—Plaintiff's Remedies, 15 Am.Jur. Trials 555, 580—590 (1968). Increasing this figure by 900% to allow for increases in rate and unreported cases, every federal district judge could expect to try one such case every 13 years.
5
New York at that time followed the common-law rule that a private person may arrest another if the latter has in fact committed a felony, and that if such is the case the presence or absence of probable cause is irrelevant to the legality of the arrest. See McLoughlin v. New York Edison Co., 252 N.Y. 202, 169 N.E. 277; 225 App.Div. 846, 232 N.Y.S. 622 (1929); cf. N.Y.Code Crim.Proc. § 183 (1958) for codification of the rule. Conspiracy to commit a federal crime was at the time a felony. Act of March 4, 1909, § 37, 35 Stat. 1096.
6
Conversely, we have in some instances rejected Fourth Amendment claims despite facts demonstrating that federal agents were acting in violation of local law. McGuire v. United States, 273 U.S. 95, 47 S.Ct. 259, 71 L.Ed. 556 (1927) (trespass ab initio); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924) ('open fields' doctrine); cf. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921) (possession of stolen property).
7
Similarly, although the Fourth Amendment confines an officer executing a search warrant strictly within the bounds set by the warrant, Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927); see Stanley v. Georgia, 394 U.S. 557, 570—572, 89 S.Ct. 1243, 1251—1252, 22 L.Ed.2d 542 (1969) (Stewart, J., concurring in result), a private individual lawfully in the home of another will not normally be liable for trespass beyond the bounds of his invitation absent clear notice to that effect. See 1 F. Harper & F. James, The Law of Torts § 1.11 (1956).
8
Although no State has undertaken to limit the common-law doctrine that one may use reasonable force to resist an unlawful arrest by a private person, at least two States have outlawed resistance to an unlawful arrest sought to be made by a person known to be an officer of the law. R.I.Gen.Laws § 12—7—10 (1969); State v. Koonce, 89 N.J.Super. 169,
1
Petitioner also asserted federal jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), and 28 U.S.C. § 1343(4). Neither will support federal jurisdiction over the claim. See Bivens v. Six Unknown Named Agents, 409 F.2d 718, 720 n. 1 (CA2 1969).
2
See n. 3, infra.
3
The Government appears not quite ready to concede this point. Certain points in the Government's argument seem to suggest that the 'state-created right—federal defense' model reaches not only the question of the power to accord a federal damages remedy, but also the claim to any judicial remedy in any court. Thus, we are pointed to Lasson's observation concerning Madison's version of the Fourth Amendment as introduced into the House:
'The observation may be made that the language of the proposal did not purport to create the right to be secure from unreasonable
search and seizures but merely stated it as a right which already existed.' N. Lasson, History and Development of the Fourth Amendment to the United States Constitution 100 n. 77 (1937), quoted in Brief for Respondents 11 n. 7. And, on the problem of federal equitable vindication of constitutional rights without regard to the presence of a 'statecreated right,' see Hart, The Relations Between State and Federal Law, 54 Col.L.Rev. 489, 523 524 (1954), quoted in Brief for Respondents 17.
On this point, the choice of phraseology in the Fourth Amendment itself is singularly unpersuasive. The leading argument against a 'Bill of Rights' was the fear that individual liberties not specified expressly would be taken as excluded. See generally, Lasson, supra, at 79—105. This circumstance alone might well explain why the authors of the Bill of Rights would opt for language which presumes the existence of a fundamental interest in liberty, albeit originally derived from the common law. See Entick v. Carrington, 19 How.St.Tr. 1029, 95 Eng.Rep. 807 (1765).
In truth, the legislative record as a whole behind the Bill of Rights is silent on the rather refined doctrinal question whether the framers considered the rights therein enumerated as dependent in the first instance on the decision of a State to accord legal status to the personal interests at stake. That is understandable since the Government itself points out that general federal-question jurisdiction was not extended to the federal district courts until 1875. Act of March 3, 1875, § 1, 18 Stat. 470. The most that can be drawn from this historical fact is that the authors of the Bill of Rights assumed the adequacy of common-law remedies to vindicate the federally protected interest. One must first combine this assumption with contemporary modes of jurisprudential thought which appeared to link 'rights' and 'remedies' in a 1:1 correlation, cf., Marbury v. Madison, 1 Cranch 137, 163, 2 L.Ed. 60 (1803), before reaching the conclusion that the framers are to be understood today as having created no federally protected interests. And, of course, that would simply require the conclusion that federal equitable relief would not lie to protect those interests guarded by the Fourth Amendment.
Professor Hart's observations concerning the 'imperceptible steps' between In re Ayers, 123 U.S. 443, 8 S.ct. 164, 31 L.Ed. 216 (1887), and Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), see Hart, supra, fail to persuade me that the source of the legal interest asserted here is other than the Federal Constitution itself. In re Ayers concerned the precise question whether the Eleventh Amendment barred auit in a federal court for an injunction compelling a state officer to perform a contract to which the State was a party. Having concluded that the suit was inescapably a suit against the State under the Eleventh Amendment, the Court spoke of the presence of state-created rights as a distinguishing factor supporting the exercise of federal jurisdiction in other contract clause cases. The absence of a statecreated right in In re Ayers served to distinguish that case from the perspective of the State's immunity to suit; Ayers simply does not speak to the analytically distinct question whether the Constitution is in the relevant sense a source of legal protection for the 'rights' enumerated therein.
4
The Borak case is an especially clear example of the exercise of federal judicial power to accord damages as an appropriate remedy in the absence of a federal cause statutory authorization of a federal cause of action. There we 'implied' from what can only be characterized as an 'exclusively procedural provision' affording access to a federal forum, cf. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 462—463, 77 S.Ct. 912, 923—924, 1 L.Ed.2d 972 (1957) (Frankfurter, J., dissenting)—a private cause of action for damages for violation of § 14(a) of the Securities Exchange Act of 1934, 48 Stat. 895, 15 U.S.C. § 78n(a). See § 27, 48 Stat. 902, 15 U.S.C. § 78aa. We did so in an area where federal regulation has been singularly comprehensive and elaborate administrative enforcement machinery had been provided. The exercise of judicial power involved in Borak simply cannot be justified in terms of statutory construction, see Hill, Constitutional Remedies, 69 Col.L.Rev. 1109, 1120—1121 (1969); nor did the Borak Court purport to do so. See Borak, supra, 377 U.S. at 432—434, 84 S.Ct., at 1559—1561. The notion of 'implying' a remedy, therefore, as applied to cases like Borak, can only refer to a process whereby the federal judiciary exercises a choice among traditionally available judicial remedies according to reasons related to the substantive social policy embodied in an act of positive law. See ibid., and Bell v. Hood, supra, 327 U.S., at 684, 66 S.Ct., at 776—777.
5
With regard to a court's authority to grant an equitable remedy, the line between 'subject matter' jurisdiction and remedial powers has undoubtedly been obscured by the fact that historically the 'system of equity 'derived its doctrines, as well as its powers, from its mode of giving relief." See Guaranty Trust Co. v. York, supra, 326 U.S., at 105, 65 S.Ct., at 1468, quoting C. Langdell, Summary of Equity Pleading xxvii (1877). Perhaps this fact alone accounts for the suggestion sometimes made that a court's power to enjoin invasion of constitutionally protected interests derives directly from the Constitution. See Bell v. Hood, 71 F.Supp. 813, 819 (SD Cal.1947).
6
Chief Judge Lumbard's opinion for the Court of Appeals in the instant case is, as I have noted, in accord with this conclusion:
'Thus, even if the Constitution itself does not give rise to an inherent injunctive power to prevent its violation by governmental officials there are strong reasons for inferring the existence of this power under any general grant of jurisdiction to the federal courts by Congress.' 409 F.2d, at 723.
The description of the remedy as 'inferred' cannot, of course, be intended to assimilate the judicial decision to accord such a remedy to any process of statutory construction. Rather, as with the cases concerning remedies, implied from statutory schemes, see n. 4, supra, the description of the remedy as 'inferred' can only bear on the reasons offered to explain a judicial decision to accord or not to accord a particular remedy.
7
I express no view on the Government's suggestion that congressional authority to simply discard the remedy the Court today authorizes might be in doubt; nor do I understand the Court's opinion today to express any view on that particular question.
8
And I think it follows from this point that today's decision has little, if indeed any, bearing on the question whether a federal court may properly devise remedies—other than traditionally available forms of judicial relief—for the purpose of enforcing substantive social policies embodied in constitutional or statutory policies. Compare today's decision with Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The Court today simply recognizes what has long been implicit in our decisions concerning equitable relief and remedies implied from statutory schemes; i.e., that a court of law vested with jurisdiction over the subject matter of a suit has the power—and therefore the duty—to make principled choices among traditional judicial remedies. Whether special prophylactic measures—which at least arguably the exclusionary rule exemplifies, see Hill, The Bill of Rights and the Supervisory Power, 69 Col.L.Rev. 181, 182—185 (1969)—are supportable on grounds other than a court's competence to select among traditional judicial remedies to make good the wrong done, cf. Bell v. Hood, supra, 327 U.S. at 684, 66 S.Ct. at 776—777, is a separate question.
9
The same, of course, may not be true with respect to other types of constitutionally protected interests, and therefore the appropriateness of money damages may well vary with the nature of the personal interest asserted. See Monroe v. Pape, 365 U.S. 167, 196, 81 S.Ct. 473, 488—489, 5 L.Ed.2d 492 n. 5 (Harlan, J., concuring).
1
J. Thayer, O. Holmes, & F. Frankfurter, John Marshall 88 (Phoenix ed., 1967).
2
The Court reached the issue of applying the Weeks doctrine to the States sua sponte.
3
What Cardozo suggested as an example of the potentially far-reaching consequences of the suppression doctrine was almost realized in Killough v. United States, 114 U.S.App.D.C. 305, 315 F.2d 241 (1962).
4
For example, in a case arising under Mapp, supra, state judges at every level of the state judiciary may find the police conduct proper. On federal habeas corpus a district judge and a court of appeals might agree. Yet, in these circumstances, this Court, reviewing the case as much as 10 years later, might reverse by a narrow margin. In these circumstances it is difficult to conclude that the policeman has violated some rule that he should have known was a restriction on his authority.
5
Damage verdicts for such acts are often sufficient in size to provide an effective deterrent and stimulate employers to corrective action.
6
Electronic eavesdropping presents special problems. See 18 U.S.C. §§ 2510—2520 (1964 ed., Supp. V).
7
Any such legislation should emphasize the interdependence between the waiver of sovereign immunity and the elimination of the judicially created exclusionary rule so that if the legislative determination to repudiate the exclusionary rule falls, the entire statutory scheme would fall.
*
'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.' Rev.Stat. § 1979, 42 U.S.C. § 1983.
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403 U.S. 431
91 S.Ct. 1970
29 L.Ed.2d 554
Linda JENNESS et al., Appellants,v.Ben W. FORTSON, Secretary of State of Georgia.
No. 5714.
Argued March 1, 1971.
Decided June 21, 1971.
Syllabus
Georgia law provides that any political organization whose candidate received 20% or more of the vote at the most recent gubernatorial or presidential election is a 'political party.' Any other political organization is a 'political body.' 'Political parties' conduct primary elections, and the name of the winning candidate for each office is printed on the ballot. A nominee of a 'political body' or an independent candidate may have his name on the ballot if he files a nominating petition signed by not less than 5% of those eligible to vote at the last election for the office he is seeking. The time for circulating the petition is 180 days, and it must meet the same deadline as a candidate in a party primary. Electors who sign a nominating petition are not restricted in any way, and there is no limitation on write-in votes on ballots. Held: The challenge of appellants, prospective candidates and registered voters, to this election procedure was properly rejected as it does not abridge the rights of free speech and association secured by the First and Fourteenth Amendments and is not violative of the Fourteenth Amendment's Equal Protection Clause. Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24, distinguished. Pp. 434—442. 315 F.Supp. 1035, affirmed.
Peter E. Rindskopf, Atlanta, Ga., for appellants.
Robert J. Castellani, Atlanta, Ga., for appellee.
Mr. Justice STEWART delivered the opinion of the Court.
1
Under Georgia law a candidate for elective public office who does not enter and win a political party's primary election can have his name printed on the ballot at the general election only if he has filed a nominating petition signed by at least 5% of the number of registered voters at the last general election for the office in question.1 Georgia law also provides that a candidate for elective public office must pay a filing fee equal to 5% of the annual salary of the office he is seeking.2 This litigation arose when the appellants, who were prospective candidates and registered voters,3 filed a class action in the United States District Court for the Northern District of Georgia, attacking the constitutionality of these provisions of the Georgia Election Code, and seeking declaratory and injunctive relief.
2
A three-judge court was convened pursuant to 28 U.S.C. §§ 2281 and 2284. Thereafter the appellants filed a motion for summary judgment based upon a stipulation as to the relevant facts. The District Court granted the motion and entered an injunction with respect to the filing-fee requirement, holding that this requirement operates to deny equal protection of the laws as applied to those prospective candidates who cannot afford to pay the fees. No appeal was taken from that injunctive order. With respect to the nominating-petition requirement, the District Court denied the motion and refused to enter an injunction, holding that this statutory provision is constitutionally valid.4 From that refusal a direct appeal was brought here under 28 U.S.C. § 1253, and we noted probable jurisdiction.5
3
The basic structure of the pertinent provisions of the Georgia Election Code is relatively uncomplicated. Any political organization whose candidate received 20% or more of the vote at the most recent gubernatorial or presidential election is a 'political party.'6 Any other political organization is a 'political body.'7 'Political parties' conduct primary elections, regulated in detail by state law, and only the name of the candidate for each office who wins this primary election is printed on the ballot at the subsequent general election, as his party's nominee for the office in question.8 A nominee of a 'political body' or an independent candidate, on the other hand, may have his name printed on the ballot at the general election by filing a nominating petition.9 This petition must be signed by 'a number of electors of not less than five per cent. of the total number of electors eligible to vote in the last election for the filling of the office the candidate is seeking. * * *'10 The total time allowed for circulating a nominating petition is 180 days,11 and it must be filed on the second Wednesday in June, the same deadline that a candidate filing in a party primary must meet.12
4
It is to be noted that these procedures relate only to the right to have the name of a candidate or the nominee of a 'political body' printed on the ballot. There is no limitation whatever, procedural or substantive, on the right of a voter to write in on the ballot the name of the candidate of his choice and to have that write-in vote counted.
5
In this litigation the appellants have mounted their attack upon Georgia's nominating-petition requirement on two different but related constitutional fronts. First, they say that to require a nonparty candidate to secure the signatures of a certain number of voters before his name may be printed on the ballot is to abridge the freedoms of speech and association guaranteed to that candidate and his supporters by the First and Fourteenth Amendments. Secondly, they say that when Georgia requires a nonparty candidate to secure the signatures of 5% of the voters before printing his name on the ballot, yet prints the names of those candidates who have won nomination in party primaries it violates the Fourteenth Amendment by denying the nonparty candidate the equal protection of the laws. Since both arguments are primarily based upon this Court's decision in Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24, it becomes necessary to examine that case in some detail.
6
In the Williams case the Court was confronted with a state electoral structure that favored 'two particular parties—the Republicans and the Democrats—and in effect tend(ed) to give them a complete monopoly.' Id., at 32, 89 S.Ct., at 11. The Court held unconstitutional the election laws of Ohio insofar as in combination they made it 'virtually impossible for a new political party, even though it ha(d) hundreds of thousands of members, or an old party, which ha(d) a very small number of members, to be placed on the state ballot' in the 1968 presidential election. Id., at 24, 89 S.Ct., at 7. The state laws made 'no provision for ballot position for independent candidates as distinguished from political parties,' id., at 26, 89 S.Ct., at 8, and a new political party, in order to be placed on the ballot, had 'to obtain petitions signed by qualified electors totaling 15% of the number of ballots cast in the last preceding gubernatorial election.' Id., at 24—25, 89 S.Ct., at 7. But this requirement was only a preliminary. For, although the Ohio American Independent Party in the first six months of 1968 had obtained more than 450,000 signatures—well over the 15% requirement—Ohio had nonetheless denied the party a place on the ballot, by reason of other statutory 'burdensome procedures, requiring extensive organization and other election activities by a very early date,' id., at 33, 89 S.Ct., at 11—'including the early deadline for filing petitions (February 7, 1968) and the requirement of a primary election conforming to detailed and rigorous standards. * * *' Id., at 27, 89 S.Ct., at 8.13
7
In a separate opinion Mr. Justice Douglas described the then structure of Ohio's network of election laws in accurate detail:
8
'Ohio, through an entangling web of election laws, has effectively foreclosed its presidential ballot to all but Republicans and Democrats. It has done so initially by abolishing write-in votes so as to restrict candidacy to names on the ballot; it has eliminated all independent candidates through a requirement that nominees enjoy the endorsement of a political party; it has defined 'political party' in such a way as to exclude virtually all but the two major parties.
9
'A candidate who seeks a place on the Ohio presidential ballot must first compile signatures of qualified voters who total at least 15% of those voting in the last gubernatorial election. In this election year, 1968, a candidate would need 433,100 such signatures. Moreover, he must succeed in gathering them long before the general election, since a nominating petition must be filed with the Secretary of State in February. That is not all: having compiled those signatures, the candidate must further show that he has received the nomination of a group which qualifies as a 'political party' within the meaning of Ohio law. It is not enough to be an independent candidate for President with wide popular support; one must trace his support to a political party.
10
'To qualify as a party, a group of electors must participate in the state primary, electing one of its members from each county ward or precinct to a county central committee; two of its members from each congressional district to a state central committee; and some of its members as delegates and alternates to a national convention. Moreover, those of its members who seek a place on the primary ballot as candidates for positions as central committeemen and national convention delegates must demonstrate that they did not vote in any other party primary during the preceding four years; and must present petitions of endorsement on their behalf by anywhere from five to 1,000 voters who likewise failed to vote for any other party in the last preceding primary. Thus, to qualify as a third party, a group must first erect elaborate political machinery, and then rest it upon the ranks of those who have proved both unwilling and unable to vote.' 393 U.S., at 35—37, 89 S.Ct., at 13.
11
The Court's decision with respect to this 'entangling web of election laws' was unambiguous and positive. It held that 'the totality of the Ohio restrictive laws taken as a whole imposes a burden on voting and associational rights which we hold is an invidious discrimination, in violation of the Equal Protection Clause.' Id., at 34, 89 S.Ct., at 12.14
12
But the Williams case, it is clear, presented a statutory scheme vastly different from the one before us here. Unlike Ohio, Georgia freely provides for writein votes. Unlike Ohio, Georgia does not require every candidate to be the nominee of a political party, but fully recognizes independent candidacies. Unlike Ohio, Georgia does not fix an unreasonably early filing deadline for candidates not endorsed by established parties. Unlike Ohio, Georgia does not impose upon a small party or a new party the Procrustean requirement of establishing elaborate primary election machinery. Finally, and in sum, Georgia's election laws, unlike Ohio's, do not operate to freeze the political status quo. In this setting we cannot say that Georgia's 5% petition requirement violates the Constitution.
13
Anyone who wishes, and who is otherwise eligible, may be an independent candidate for any office in Georgia. Any political organization, however new or however small, is free to endorse any otherwise eligible person as its candidate for whatever elective public office it chooses. So far as the Georgia election laws are concerned independent candidates and members of small or newly formed political organizations are wholly free to associate, to proselytize, to speak, to write, and to organize campaigns for any school of thought they wish. They may confine themselves to an appeal for write-in votes. Or they may seek, over a six months' period, the signatures of 5% of the eligible electorate for the office in question. If they choose the latter course, the way is open. For Georgia imposes no suffocating restrictions whatever upon the free circulation of nominating petitions. A voter may sign a petition even though he has signed others,15 and a voter who has signed the petition of a nonparty candidate is free thereafter to participate in a party primary.16 The signer of a petition is not required to state that he intends to vote for that candidate at the election.17 A person who has previously voted in a party primary is fully eligible to sign a petition,18 and so, on the other hand is a person who was not even registered at the time of the previous election.19 No signature on a nominating petition need be notarized.20
14
The open quality of the Georgia system is far from merely theoretical. For the stipulation of facts in this record informs us that a candidate for Governor in 196621 and a candidate for President in 1968,22 gained ballot designation by nominating petitions, and each went on to win a plurality of the votes cast at the general election.23
15
In a word, Georgia in no way freezes the status quo, but implicitly recognizes the potential fluidity of American political life. Thus, any political body that wins as much as 20% support at an election becomes a 'political party' with its attendant ballot position rights and primary election obligations, and any 'political party' whose support at the polls falls below that figure reverts to the status of a 'political body' with its attendant nominating petition responsibilities and freedom from primary election duties. We can find in this system nothing that abridges the rights of free speech and association secured by the First and Fourteenth Amendments.
16
The appellants' claim under the Equal Protection Clause of the Fourteenth Amendment fares no better. This claim is necessarily bottomed upon the premise that it is inherently more burdensome for a candidate to gather the signatures of 5% of the total eligible electorate than it is to win the votes of a majority in a party primary.24 That is a premise that cannot be uncritically accepted. Although the number of candidates in a party primary election for any particular office will, of course, vary from election to election, the appellee's brief advises us that in the most recent election year there were 12 candidates for the nomination for the office of Governor in the two party primaries. Only two of these 12, of course, won their party primaries and had their names printed on the ballot at the general election. Surely an argument could as well be made on behalf of the 10 who lost, that it is they who were denied equal protection vis-a -vis a candidate who could have had his name printed on the ballot simply by filing a nominating petition signed by 5% of the total electorate.
17
The fact is, of course, that from the point of view of one who aspires to elective public office in Georgia, alternative routes are available to getting his name printed on the ballot. He may enter the primary of a political party, or he may circulate nominating petitions either as an independent candidate or under the sponsorship of a political organization.25 We cannot see how Georgia has violated the Equal Protection Clause of the Fourteenth Amendment by making available these two alternative paths, neither of which can be assumed to be inherently more burdensome than the other.
18
Insofar as we deal here with the claims of a 'political body,' as contrasted with those of an individual aspirant for public office or an individual voter,26 the situation is somewhat different. For it is true that a 'political party' in Georgia is assured of having the name of its nominee—the primary election winner—printed on the ballot, whereas the name of the nominee of a 'political body' will be printed only if nominating petitions have been filed that contain the requisite number of signatures. But we can hardly suppose that a small or a new political organization could seriously urge that its interests would be advanced if it were forced by the State to establish all of the elaborate statewide, county-by-county, organizational paraphernalia required of a 'political party' as a condition for conducting a primary election.27 Indeed, a large reason for the Court's invalidation of the Ohio election laws in Williams v. Rhodes, supra, was precisely that Ohio did impose just such requirements on small and new political organizations.
19
The fact is that there are obvious differences in kind between the needs and potentials of a political party with historically established broad support, on the one hand, and a new or small political organization on the other. Georgia has not been guilty of invidious discrimination in recognizing these differences and providing different routes to the printed ballot. Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike, a truism well illustrated in Williams v. Rhodes, supra.
20
There is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization's candidate on the ballot—the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election. The 5% figure is, to be sure, apparently somewhat higher than the percentage of support required to be shown in many States as a condition for ballot position,28 but this is balanced by the fact that Georgia has imposed no arbitrary restrictions whatever upon the eligibility of any registered voter to sign as many nominating petitions as he wishes. Georgia in this case has insulated not a single potential voter from the appeal of new political voices within its borders.
21
The judgment is affirmed.
22
Mr. Justice BLACK and Mr. Justice HARLAN concur in the result.
1
Ga.Code Ann. § 34—1010 (1970).
2
Ga.Code Ann. § 34—1013.
3
One of the appellants was the nominee of the Georgia Socialist Workers Party for Governor in 1970, two others were nominees of that organization for the House of Representatives, and two others were registered voters who sued on behalf of themselves, and 'all other registered voters in the State of Georgia desirous of having an opportunity to consider persons on the ballot other than nominees of the Democratic and Republican parties.'
4
Georgia Socialist Workers Party v. Fortson, 315 F.Supp. 1035.
5
400 U.S. 877, 91 S.Ct. 127, 27 L.Ed.2d 114.
6
Ga.Code Ann. § 34—103(u).
7
Ga.Code Ann. § 34—103(s).
8
See, e.g., Ga.Code Ann. §§ 34—1004 to 34—1006, 34—1008, 34 1009, 34—1014, 34—1015, 34—1102, 34—1301 to 34—1303, 34—1308, 34 1507, 34—1513.
9
Ga.Code Ann. § 34—1001.
10
Ga.Code Ann. § 34—1010(b).
11
Ga.Code Ann. § 34—1010(e).
12
Compare Ga.Code Ann. § 34—1002(b) with Ga.Code Ann. § 34 1005(b).
13
In describing these burdens, the Court quoted the description contained in the dissenting opinion of a number of the three-judge District Court from which the appeal in the Williams case had come:
'Judge Kinneary describes, in his dissenting opinion below, the legal obstacles placed before a would-be third party even after the 15% signature requirement has been fulfilled:
"First, at the primary election, the new party, or any political party, is required to elect a state central committee consisting of two members from each congressional district and county central committees for each county in Ohio. (Ohio Rev.Code §§ 3517.02—3517.04.) Second, at the primary election the new party must elect delegates and alternates to a national convention. (Ohio Rev.Code § 3505.10.) Since Section 3513.19.1, Ohio Rev.Code, prohibits a candidate from seeking the office of delegate to the national convention or committeeman if he voted as a member of a different party at a primary election in the preceding four year period, the new party would be required to have over twelve hundred members who had not previously voted in another party's primary, and who would be willing to serve as committeemen and delegates. Third, the candidates for nomination in the primary would have to file petitions signed by qualified elector. (Ohio Rev.Code § 3513.05.) The term 'qualified electors' is not adequately defined in the Ohio Revised Code (§ 3501.01(H)), but a related section (§ 3513.19), provides that a qualified elector at a primary election of a political party is one who, (1) voted for a majority of that party's candidates at the last election, or, (2) has never voted in any election before. Since neither of the political party plaintiffs had any candidates at the last preceding regular state election, they would, of necessity, have to seek out members who had never voted before to sign the moninating petitions, and it would be only these persons who could vote in the primary election of the new party." 393 U.S., at 25 n. 1, 89 S.Ct., at 7.
14
Mr. Justice Douglas, while joining the opinion of the Court, filed a separate opinion giving emphasis to the First Amendment values involved. Id., at 35, 89 S.Ct., at 12. Mr. Justice Harlan filed an opinion concurring in the judgment, explaining why he would have rested decision 'entirely on the proposition that Ohio's statutory scheme violates the basic right of political association assured by the First Amendment which is protected against state infringement under the Due Process Clause of the Fourteenth Amendment.' Id., at 41, 89 S.Ct., at 16.
15
Contrast, e.g., La.Rev.Stat.Ann. § 18:624(A) (1969); N.Y.Election Law, McKinney's Consol.Laws, c. 17, § 138(6) (1964).
16
Contrast, e.g., R.I.Gen.Laws Ann. § 17—16—8 (1969).
17
Contrast, e.g., N.Y.Election Law § 138(2) (1964).
18
Contrast, e.g., Cal.Elections Code § 6830(c) (1961); Colo.Rev.Stat.Ann. § 49—7—1(4) (Supp.1967).
19
Contrast, e.g., N.Y.Election Law § 138(2) (1964).
20
Contrast, e.g., Colo.Rev.Stat.Ann. § 49—7—1(4) (Supp.1967).
21
See Fortson v. Morris, 385 U.S. 231, 87 S.Ct. 446, 17 L.Ed.2d 330.
22
This was the candidate whose party Ohio had kept off the ballot in Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24.
23
As a result, the political bodies that endorsed these two candidates have now presumably acquired the status of political parties.
24
Georgia provides for a second 'run-off' primary election in the event no candidate receives a majority of the votes cast at the original primary election. See Ga.Code Ann. § 34—1513(a).
25
The argument that the first alternative route is not realistically open to a candidate with unorthodox or 'radical' views is hardly valid in the light of American political history. Time after time established political parties, at local, state, and national levels, have, while retaining their old labels, changed their ideological direction because of the influence and leadership of those with unorthodox or 'radical' views.
26
The Georgia Socialist Workers Party was one of the plaintiffs in the District Court, but is not an appellant here. We may assume, however, without deciding, that the individual appellants can properly assert the interests of that 'political body.'
27
See, e.g., Ga.Code Ann. § 34—1004.
28
See Williams v. Rhodes, 393 U.S., at 47 n. 10, 89 S.Ct., at 19, 21 L.Ed.2d 24 (Harlan, J., concurring in result).
| 12
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403 U.S. 672
91 S.Ct. 2091
29 L.Ed.2d 790
Eleanor Taft TILTON et al., Appellants,v.Elliott L. RICHARDSON, Secretary of the United States Department of Health, Education, and Welfare, et al.
No. 153.
Argued March 2, 3, 1971.
Decided June 28, 1971.
Rehearing Denied Oct. 12, 1971.
See 92 S.Ct. 25.
Syllabus
The Higher Education Facilities Act of 1963 provides federal construction grants for college and university facilities, excluding 'any facility used or to be used for sectarian instruction or as a place for religious worship, or * * * primarily in connection with any part of the program of a school or department of divinity.' The United States retains a 20-year interest in any facility constructed with funds under the Act, and if, during this period, the recipient violates the statutory conditions, the Government is entitled to recovery of funds. Four church-related colleges and universities in Connecticut received federal construction grants for five facilities. Appellants attempted to show, in a three-judge court, that the recipient institutions were 'sectarian' by introducing evidence of their relations with religious authorities, the curricula content, and other indicia of religious character. Appellee colleges introduced testimony that they had fully complied with the statutory conditions and that their religious affiliations did not interfere with their secular educational functions. The court held that the Act authorized grants to church-related schools, and sustained its constitutionality, finding that the Act had neither the purpose nor the effect of promoting religion. Held: The Act is constitutional except for that portion providing for a 20-year limitation on the religious use of the facilities constructed with federal funds. P. 2095.
312 F.Supp. 1191, vacated and remanded.
The CHIEF JUSTICE, joined by Mr. Justice HARLAN, Mr. Justice STEWART, and Mr. Justice BLACKMUN, concluded that:
1
1. The Act includes colleges and universities with religious affiliations. Pp. 676—677.
2
2. Congress' objective of providing more opportunity for college education is a legitimate secular goal entirely appropriate for governmental action. Pp. 678—679.
3
3. The record fully supports the District Court's findings that the colleges involved have not violated the statutory restrictions; it provides no basis for assuming that religiosity necessarily permeates the secular education of the colleges; and it yields no evidence that religion seeps into the use of any of the five facilities. Pp. 680—682.
4
4. The limitation of federal interest in the facilities to a period of 20 years violates the Religion Clauses of the First Amendment, as the unrestricted use of valuable property after 20 years is in effect a contribution to a religious body. Pp. 682 684.
5
5. This case is distinguished from Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745; (a) there is less danger here than in church-related primary and secondary schools dealing with impressionable children that religion will permeate the area of secular education, since religious indoctrination is not a substantial purpose or activity of these church-related colleges, (b) the facilities provided here are themselves religiously neutral, with correspondingly less need for government surveillance, and (c) the government aid here is a one-time, single-purpose construction grant, with only minimal need for inspection. Cumulatively, these factors lessen substantially the potential for divisive religious fragmentation in the political arena. Pp. 684—689.
6
6. The implementation of the Act does not inhibit the free exercise of religion in violation of the First Amendment. P. 689.
7
Mr. Justice WHITE concurred in the result in this case. Pp. 661—671.
8
Mr. Justice DOUGLAS, joined by Mr. Justice BLACK and Mr. Justice MARSHALL, concluded, with respect to the limitation of federal interest in the facilities to 20 years, that a reversion of a facility at the end of that period to a parochial school would be unconstitutional as a gift of taxpayers' funds and that in other respects also the federal act violates the Establishment Clause. P. 692.
9
Leo Pfeffer, New York City, for appellants.
10
Daniel M. Friedman, Washington, D.C., for appellees Richardson and Bell.
11
F. Michael Ahern, Hartford, Conn., for appellee Peterson.
12
Edward Bennett Williams, Washington, D.C., for appellee Colleges and Universities.
13
Mr. Chief Justice BURGER announced the judgment of the Court and an opinion in which Mr. Justice HARLAN, Mr. Justice STEWART and Mr. Justice BLACKMUN join.
14
This appeal presents important constitutional questions as to federal aid for church-related colleges and universities under Title I of the Higher Education Facilities Act of 1963, 77 Stat. 364, as amended, 20 U.S.C. §§ 711—721 (1964 ed. and Supp. V), which provides construction grants for buildings and facilities used exclusively for secular educational purposes. We must determine first whether the Act authorizes aid to such church-related institutions, and, if so, whether the Act violates either the Establishment or Free Exercise Clauses of the First Amendment.
15
* The Higher Education Facilities Act was passed in 1963 in response to a strong nationwide demand for the expansion of college and university facilities to meet the sharply rising number of young people demanding higher education. The Act authorizes federal grants and loans to 'institutions of higher education' for the construction of a wide variety of 'academic facilities.' But § 751(a) (2) (1964 ed., Supp. V) expressly excludes
16
'any facility used or to be used for sectarian instruction or as a place for religious worship, or * * * any facility which * * * is used or to be used primarily in connection with any part of the program of a school or department of divinity * * *.'
17
The Act is administered by the United States Commissioner of Education. He advises colleges and universities applying for funds that under the Act no part of the project may be used for sectarian instruction, religious worship, or the programs of a divinity school. The Commissioner requires applicants to provide assurances that these restrictions will be respected. The United States retains a 20-year interest in any facility constructed with Title I funds. If, during this period, the recipient violates the statutory conditions, the United States is entitled to recover an amount equal to the proportion of its present value that the federal grant bore to the original cost of the facility. During the 20-year period, the statutory restrictions are enforced by the Office of Education primarily by way of on-site inspections.
18
Appellants are citizens and taxpayers of the United States and residents of Connecticut. They brought this suit for injunctive relief against the officials who administer the Act. Four church-related colleges and universities in Connecticut receiving federal construction grants under Title I were also named as defendants. Federal funds were used for five projects at these four institutions: (1) a library building at Sacred Heart University; (2) a music, drama, and arts building at Annhurst College; (3) a science building at Fairfield University; (4) a library building at Fairfield; and (5) a language laboratory at Albertus Magnus College.
19
A three-judge federal court was convened under 28 U.S.C. § 2282 and § 2284. Appellants attempted to show that the four recipient institutions were 'sectarian' by introducing evidence of their relations with religious authorities, the content of their curricula, and other indicia of their religious character. The sponsorship of these institutions by religious organizations is not disputed. Appellee colleges introduced testimony that they had fully complied with the statutory conditions and that their religious affiliation in no way interfered with the performance of their secular educational functions. The District Court ruled that Title I authorized grants to church-related colleges and universities. It also sustained the constitutionality of the Act, finding that it had neither the purpose nor the effect of promoting religion. 312 F.Supp. 1191. We noted probable jurisdiction. 399 U.S. 904, 90 S.Ct. 2200, 26 L.Ed.2d 558 (1970).
II
20
We are satisfied that Congress intended the Act to include all colleges and universities regardless of any affiliation with or sponsorship by a religious body. Congress defined 'institutions of higher education,' which are eligible to receive aid under the Act, in broad and inclusive terms. Certain institutions, for example, institutions that are neither public nor nonprofit, are expressly excluded, and the Act expressly prohibits use of the facilities for religious purposes. But the Act makes no reference to religious affiliation or nonaffiliation. Under these circumstances 'institutions of higher education' must be taken to include churchrelated colleges and universities.
21
This interpretation is fully supported by the legislative history. Although there was extensive debate on the wisdom and constitutionality of aid to institutions affiliated with religious organizations, Congress clearly included them in the program. The sponsors of the Act so stated, 109 Cong.Rec. 19218 (1963) (remarks of Sen. Morse); id., at 14954 (remarks of Rep. Powell); id., at 14963 (remarks of Rep. Quie), and amendments aimed at the exclusion of church-related institutions were defeated. Id., at 14990—14992, 19496.
III
22
Numerous cases considered by the Court have noted the internal tension in the First Amendment between the Establishment Clause and the Free Exercise Clause. Walz v. Tax Comm'n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), is the most recent decision seeking to define the boundaries of the neutral area between these two provisions within which the legislature may legitimately act. There, as in other decisions, the Court treated the three main concerns against which the Establishment Clause sought to protect: 'sponsorship, financial support, and active involvement of the sovereign in religious activity.' Id., at 668, 90 S.Ct., at 1411.
23
Every analysis must begin with the candid acknowledgment that there is no single constitutional caliper that can be used to measure the precise degree to which these three factors are present or absent. Instead, our analysis in this area must begin with a consideration of the cumulative criteria developed over many years and applying to a wide range of governmental action challenged as violative of the Establishment Clause.
24
There are always risks in treating criteria discussed by the Court from time to time as 'tests' in any limiting sense of that term. Constitutional adjudication does not lend itself to the absolutes of the physical sciences or mathematics. The standards should rather be viewed as guidelines with which to identify instances in which the objectives of the Religion Clauses have been impaired. And, as we have noted in Lemon v. Kurtzman and Earley v. DiCenso, 403 U.S. 602, at 612, 91 S.Ct. 2105, at 2111, 29 L.Ed.2d 745, candor compels the acknowledgment that we can only dimly perceive the boundaries of permissible government activity in this sensitive area of constitutional adjudication.
25
Against this background we consider four questions: First, does the Act reflect a secular legislative purpose? Second, is the primary effect of the Act to advance or inhibit religion? Third, does the administration of the Act foster an excessive government entanglement with religion? Fourth, does the implementation of the Act inhibit the free exercise of religion?
26
(a)
27
The stated legislative purpose appears in the preamble where Congress found and declared that
28
'the security and welfare of the United States require that this and future generations of American youth be assured ample opportunity for the fullest development of their intellectual capacities, and that this opportunity will be jeopardized unless the Nation's colleges and universities are encouraged and assisted in their efforts to accommodate rapidly growing numbers of youth who aspire to a higher education.' 20 U.S.C. § 701.
29
This expresses a legitimate secular objective entirely appropriate for governmental action.
30
The simplistic argument that every form of financial aid to church-sponsored activity violates the Religion Clauses was rejected long ago in Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168 (1899). There a federal construction grant to a hospital operated by a religious order was upheld. Here the Act is challenged on the ground that its primary effect is to aid the religious purposes of church-related colleges and universities. Construction grants surely aid these institutions in the sense that the construction of buildings will assist them to perform their various functions. But bus transportation, textbooks, and tax exemptions all gave aid in the sense that religious bodies would otherwise have been forced to find other sources from which to finance these services. Yet all of these forms of governmental assistance have been upheld. Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947); Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968); Walz v. Tax Comm'n, supra. See also Bradfield v. Roberts, supra. The crucial question is not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion.
31
A possibility always exists, of course, that the legitimate objectives of any law or legislative program may be subverted by conscious design or lax enforcement. There is nothing new in this argument. But judicial concern about these possibilities cannot, standing alone, warrant striking down a statute as unconstitutional.
32
The Act itself was carefully drafted to ensure that the federally subsidized facilities would be devoted to the secular and not the religious function of the recipient institutions. It authorizes grants and loans only for academic facilities that will be used for defined secular purposes and expressly prohibits their use for religious instruction, training, or worship. These restrictions have been enforced in the Act's actual administration, and the record shows that some church-related institutions have been required to desgorge benefits for failure to obey them.
33
Finally, this record fully supports the findings of the District Court that none of the four church-related institutions in this case has violated the statutory restrictions. The institutions presented evidence that there had been no religious services or worship in the federally financed facilities, that there are no religious symbols or plaques in or on them, and that they had been used solely for nonreligious purposes. On this record, therefore, these buildings are indistinguishable from a typical state university facility. Appellants presented no evidence to the contrary.
34
Appellants instead rely on the argument that government may not subsidize any activities of an institution of higher learning that in some of its programs teaches religious doctrines. This argument rests on Everson where the majority stated that the Establishment Clause barred any 'tax * * * levied to support any religious * * * institutions * * * whatever form they may adopt to teach or practice religion.' 330 U.S., at 16, 67 S.Ct., at 511. In Allen, however, it was recognized that the Court had fashioned criteria under which an analysis of a statute's purpose and effect was determinative as to whether religion was being advanced by government action. 392 U.S., at 243, 88 S.Ct., at 1926; School District of Abington Tp. Pa. v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 1571, 10 L.Ed.2d 844 (1963).
35
Under this concept appellants' position depends on the validity of the proposition that religion so permeates the secular education provided by church-related colleges and universities that their religious and secular educational functions are in fact inseparable. The argument that government grants would thus inevitably advance religion did not escape the notice of Congress. It was carefully and thoughtfully debated, 109 Cong.Rec. 19474—19475, but was found unpersuasive. It was also considered by this Court in Allen. There the Court refused to assume that religiosity in parochial elementary and secondary schools necessarily permeates the secular education that they provide.
36
This record, similarly, provides no basis for any such assumption here. Two of the five federally financed buildings involved in this case are libraries. The District Court found that no classes had been conducted in either of these facilities and that no restrictions were imposed by the institutions on the books that they acquired. There is no evidence to the contrary. The third building was a language laboratory at Albertus Magnus College. The evidence showed that this facility was used solely to assist students with their pronunciation in modern foreign languages—a use which would seem peculiarly unrelated and unadaptable to religious indoctrination. Federal grants were also used to build a science building at Fairfield University and a music, drama, and arts building at Annhurst College.
37
There is no evidence that religion seeps into the use of any of these facilities. Indeed, the parties stipulated in the District Court that courses at these institutions are taught according to the academic requirements intrinsic to the subject matter and the individual teacher's concept of professional standards. Although appellants introduced several institutional documents that stated certain religious restrictions on what could be taught, other evidence showed that these restrictions were not in fact enforced and that the schools were characterized by an atmosphere of academic freedom rather than religious indoctrination. All four institutions, for example, subscribe to the 1940 Statement of Principles on Academic Freedom and Tenure endorsed by the American Association of University Professors and the Association of American Colleges.
38
Rather than focus on the four defendant colleges and universities involved in this case, however, appellants seek to shift our attention to a 'composite profile' that they have constructed of the 'typical sectarian' institution of higher education. We are told that such a 'composite' institution imposes religious restrictions on admissions, requires attendance at religious activities, compels obedience to the doctrines and dogmas of the faith, requires instruction in theology and doctrine, and does everything it can to propagate a particular religion. Perhaps some church-related schools fit the pattern that appellants describe. Indeed, some colleges have been declared ineligible for aid by the authorities that administer the Act. But appellants do not contend that these four institutions fall within this category. Individual projects can be properly evaluated if and when challenges arise with respect to particular recipients and some evidence is then presented to show that the institution does in fact possess these characteristics. We cannot, however, strike down an Act of Congress on the basis of a hypothetical 'profile.'
39
(b)
40
Although we reject appellants' broad constitutional arguments we do perceive an aspect in which the statute's enforcement provisions are inadequate to ensure that the impact of the federal aid will not advance religion. If a recipient institution violates any of the statutory restrictions on the use of a federally financed facility, § 754(b)(2) permits the Government to recover an amount equal to the proportion of the facility's present value that the federal grant bore to its original cost.
41
This remedy, however, is available to the Government only if the statutory conditions are violated 'within twenty years after completion of construction.' This 20-year period is termed by the statute as 'the period of Federal interest' and reflects Congress' finding that after 20 years 'the public benefit accruing to the United States' from the use of the federally financed facility 'will equal or exceed in value' the amount of the federal grant. 20 U.S.C. § 754(a).
42
Under § 754(b)(2), therefore, a recipient institution's obligation not to use the facility for sectarian instruction or religious worship would appear to expire at the end of 20 years. We note, for example, that under § 718(b)(7)(C) (1964 ed., Supp. V), an institution applying for a federal grant is only required to provide assurances that the facility will not be used for sectarian instruction or religious worship 'during at least the period of the Federal interest therein (as defined in section 754 of this title).'
43
Limiting the prohibition for religious use of the structure to 20 years obviously opens the facility to use for any purpose at the end of that period. It cannot be assumed that a substantial structure has no value after that period and hence the unrestricted use of a valuable property is in effect a contribution of some value to a religious body. Congress did not base the 20-year provision on any contrary conclusion. If, at the end of 20 years, the building is, for example, converted into a chapel or otherwise used to promote religious interests, the original federal grant will in part have the effect of advancing religion.
44
To this extent the Act therefore trespasses on the Religion Clauses. The restrictive obligations of a recipient institution under § 751(a)(2) cannot, compatibly with the Religion Clauses, expire while the building has substantial value. This circumstance does not require us to invalidate the entire Act, however. 'The cardinal principle of statutory construction is to save and not to destroy.' NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, 57 S.Ct. 615, 621, 81 L.Ed. 893 (1937). In Champlin Rfg. Co. v. Corporation Commission, 286 U.S. 210, 234, 52 S.Ct. 559, 565, 76 L.Ed. 1062 (1932), the Court noted
45
'The unconstitutionality of a part of an act does not necessarily defeat * * * the validity of its remaining provisions. Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.'
46
Nor does the absence of an express severability provision in the Act dictate the demise of the entire statute. E.g., United States v. Jackson, 390 U.S. 570, 585 n. 27, 88 S.Ct. 1209, 1218, 20 L.Ed.2d 138 (1968).
47
We have found nothing in the statute or its objectives intimating that Congress considered the 20-year provision essential to the statutory program as a whole. In view of the broad and important goals that Congress intended this legislation to serve, there is no basis for assuming that the Act would have failed of passage without this provision; nor will its excision impair either the operation or administration of the Act in any significant respect.1
IV
48
We next turn to the question of whether excessive entanglements characterize the relationship between government and church under the Act. Walz v. Tax Comm'n, supra, 397 U.S., at 674 676, 90 S.Ct., at 1414—1415. Our decision today in Lemon v. Kurtzman and Robinson v. DiCenso has discussed and applied this independent measure of constitutionality under the Religion Clauses. There we concluded that excessive entanglements between government and religion were fostered by Pennsylvania and Rhode Island statutory programs under which state aid was provided to parochial elementary and secondary schools. Here, however, three factors substantially diminish the extent and the potential danger of the entanglement.
49
In DiCenso the District Court found that the parochial schools in Rhode Island were 'an integral part of the religious mission of the Catholic Church.' There, the record fully supported the conclusion that the inculcation of religious values was a substantial if not the dominant purpose of the institutions. The Pennsylvania case was decided on the pleadings, and hence we accepted as true the allegations that the parochial schools in that State shared the same characteristics.
50
Appellants' complaint here contains similar allegations. But they were denied by the answers, and there was extensive evidence introduced on the subject. Although the District Court made no findings with respect to the religious character of the four institutions of higher learning, we are not required to accept the allegations as true under these circumstances, particularly where, as here, appellants themselves do not contend that these four institutions are 'sectarian.'
51
There are generally significant differences between the religious aspects of church-related institutions of higher learning and parochial elementary and secondary schools.2 The 'affirmative if not dominant policy' of the instruction in pre-college church schools is 'to assure future adherents to a particular faith by having control of their total education at an early age.' Walz v. Tax Comm'n, supra, at 671, 90 S.Ct., at 1412.3 There is substance to the contention that college students are less impressionable and less susceptible to religious indoctrination.4 Common observation would seem to support that view, and Congress may well have entertained it. The skepticism of the college student is not an inconsiderable barrier to any attempt or tendency to subvert the congressional objectives and limitations. Furthermore, by their very nature, college and postgraduate courses tend to limit the opportunities for sectarian influence by virtue of their own internal disciplines. Many church-related colleges and universities are characterized by a high degree of academic freedom5 and seek to evoke free and critical responses from their students.
52
The record here would not support a conclusion that any of these four institutions departed from this general pattern. All four schools are governed by Catholic religious organizations, and the faculties and student bodies at each are predominantly Catholic. Nevertheless, the evidence shows that non-Catholics were admitted as students and given faculty appointments. Not one of these four institutions requires its students to attend religious services. Although all four schools require their students to take theology courses, the parties stipulated that these courses are taught according to the academic requirements of the subject matter and the teacher's concept of professional standards. The parties also stipulated that the courses covered a range of human religious experiences and are not limited to courses about the Roman Catholic religion. The schools introduced evidence that they made no attempt to indoctrinate students or to proselytize. Indeed, some of the required theology courses at Albertus Magnus and Sacred Heart are taught by rabbis. Finally, as we have noted, these four schools subscribe to a well-established set of principles of academic freedom, and nothing in this record shows that these principles are not in fact followed. In short, the evidence shows institutions with admitedly religious functions but whose predominant higher education mission is to provide their students with a secular education.
53
Since religious indoctrination is not a substantial purpose or activity of these church-related colleges and universities, there is less likelihood than in primary and secondary schools that religion will permeate the area of secular education. This reduces the risk that government aid will in fact serve to support religious activities. Correspondingly, the necessity for intensive government surveillance is diminished and the resulting entanglements between government and religion lessened. Such inspection as may be necessary to ascertain that the facilities are devoted to secular education is minimal and indeed hardly more than the inspections that States impose over all private schools within the reach of compulsory education laws.
54
The entanglement between church and state is also lessended here by the nonideological character of the aid that the Government provides. Our cases from Everson to Allen have permitted church-related schools to receive government aid in the form of secular, neutral, or nonideological services, facilities, or materials that are supplied to all students regardless of the affiliation of the school that they attend. In Lemon and DiCenso, however, the state programs subsidized teachers, either directly or indirectly. Since teachers are not necessarily religiously neutral, greater governmental surveillance would be required to guarantee that state salary aid would not in fact subsidize religious instruction. There we found the resulting entanglement excessive. Here, on the other hand, the Government provides facilities that are themselves religiously neutral. The risks of Government aid to religion and the corresponding need for surveillance are therefore reduced.
55
Finally, government entanglements with religion are reduced by the circumstance that, unlike the direct and continuing payments under the Pennsylvania program, and all the incidents of regulation and surveillance, the Government aid here is a one-time, single-purpose construction grant. There are no continuing financial relationships or dependencies, no annual audits, and no government analysis of an institution's expenditures on secular as distinguished from religious activities. Inspection as to use is a minimal contact.
56
No one of these three factors standing alone is necessarily controlling; cumulatively all of them shape a narrow and limited relationship with government which involves fewer and less significant contacts than the two state schemes before us in Lemon and DiCenso. The relationship therefore has less potential for realizing the substantive evils against which the Religion Clauses were intended to protect.
57
We think that cumulatively these three factors also substantially lessen the potential for devisive religious fragmentation in the political arena. This conclusion is admittedly difficult to document, but neither have appellants pointed to any continuing religious aggravation on this matter in the political processes. Possibly this can be explained by the character and diversity of the recipient colleges and universities and the absence of any intimate continuing relationship or dependency between government and religiously affiliated institutions. The potential for divisiveness inherent in the essentially local problems of primary and secondary schools is significantly less with respect to a college or university whose student constituency is not local but diverse and widely dispersed.
V
58
Finally, we must consider whether the implementation of the Act inhibits the free exercise of religion in violation of the First Amendment. Appellants claim that the Free Exercise Clause is violated because they are compelled to pay taxes, the proceeds of which in part finance grants under the Act. Appellants, however, are unable to identify any coercion directed at the practice or exercise of their religious beliefs. Board of Education of Central School District No. 1 v. Allen, supra, 392 U.S., at 248—249, 88 S.Ct., at 1929, 20 L.Ed.2d 1060. Their share of the cost of the grants under the Act is not fundamentally distinguishable from the impact of the tax exemption sustained in Walz or the provision of textbooks upheld in Allen.
59
We conclude that the Act does not violate the Religion Clauses of the First Amendment except that part of § 754(b)(2) providing a 20-year limitation on the religious use restrictions contained in § 751(a)(2). We remand to the District Court with directions to enter a judgment consistent with this opinion.
60
Vacated and remanded.
61
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice MARSHALL concur, dissenting in part.
62
The correct constitutional principle for this case was stated by President Kennedy in 1961 when questioned as to his policy respecting aid to private and parochial schools:1
63
'(T)he Constitution clearly prohibits aid to the school, to parochial schools. I don't think there is any doubt of that.
64
'The Everson case, which is probably the most celebrated case, provided only by a 5 to 4 decision was it possible for a local community to provide bus rides to nonpublic school children. But all through the majority and minority statements on that particular question there was a very clear prohibition against aid to the school direct. The Supreme Court made its decision in the Everson case by determining that the aid was to the child, not to the school. Aid to the school is—there isn't any room for debate on that subject. It is prohibited by the Constitution, and the Supreme Court has made that very clear. And therefore there would be no possibility of our recommending it.'
65
Taxpayer appellants brought this suit challenging the validity of certain expenditures, made by the Department of Health, Education, and Welfare, for the construction of (1) a library at Sacred Heart University, (2) a music, drama, and arts building at Annhurst College, (3) a library and a science building at Fairfield University, and (4) a laboratory at Albertus Magnus College. The complaint alleged that all of these institutions were controlled by religious orders and the Roman Catholic Diocese of Bridgeport,Conn., and that if the funds for construction were authorized by Title I of the Higher Education Facilities Act of 1964, as amended, 77 Stat. 363, 20 U.S.C. §§ 711—721 (1964 ed. and Supp. V), then that statute was unconstitutional because it violated the Establishment Clause. A three-judge District Court was convened and rejected appellants' claims.
66
Title I of the Higher Education Facilities Act of 1963 authorizes grants and loans up to 50% of the cost for the construction of undergraduate academic facilities in both public and private colleges and universities. A project is eligible if construction will result 'in an urgently needed substantial expansion of the institution's student enrollment capacity, capacity to provide needed health care to students or personnel of the institution, or capacity to carry out extension and continuing education programs on the campus of such institution.' 20 U.S.C. § 716 (1964 ed., Supp. V). The Commissioner of Education is authorized to prescribe basic criteria and is instructed to 'give special consideration to expansion of undergraduate enrollment capacity.' 20 U.S.C. § 717 (1964 ed., Supp. V).
67
Academic facilities are 'structures suitable for use as classrooms, laboratories, libraries, and related facilities necessary or appropriate for instruction of students, or for research * * * programs.' Specifically excluded are facilities 'used or to be used for sectarian instruction or as a place for religious worship' or any facilities used 'primarily in connection with any part of the program of a school or department of divinity.' 20 U.S.C. § 751(a) (1964 ed., Supp. V). The United States retains a 20-year interest in the facilities and should a facility be used other than as an academic facility then the United States is entitled to recover an amount equal to the proportion of present value which the federal grant bore to the original cost of the facility. 20 U.S.C. § 754(b). According to a stipulation entered below, during the 20 years the Office of Education attempts to insure that facilities are used in the manner required by the Act primarily by on-site inspections. At the end of the 20-year period the federal interest in the facility ceases and the college may use it as it pleases. See 20 U.S.C. § 754(a).
68
The public purpose in secular education is, to be sure, furthered by the program. Yet the sectarian purpose is aided by making the parochial school system viable. The purpose is to increase 'student enrollment' and the students obviously aimed at are those of the particular faith now financed by taxpayers' money. Parochial schools are not beamed at agnostics, atheists, or those of a competing sect. The more sophisticated institutions may admit minorities; but the dominant religious character is not changed.
69
The reversion of the facility to the parrochial school2 at the end of 20 years is an outright grant, measurable by the present discounted worth of the facility. A gift of taxpayers' funds in that amount would plainly be unconstitutional. The Court properly bars it even though disguised in the form of a reversionary interest. See Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281.
70
But the invalidation of this one clause cannot cure the constitutional infirmities of the statute as a whole. The Federal Government is giving religious schools a block grant to build certain facilities. The fact that money is given once at the beginning of a program rather than apportioned annually as in Lemon and DiCenso is without constitutional significance. The First Amendment bars establishment of a religion. And as I noted today in Lemon and DiCenso, this bar has been consistently interpreted from Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed. 711, through Torcaso v. Watkins, 367 U.S. 488, 493, 81 S.Ct. 1680, 1682, 6 L.Ed.2d 982, as meaning: '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.' Thus it is hardly impressive that rather than giving a smaller amount of money annually over a long period of years, Congress instead gives a large amount all at once. The plurality's distinction is in effect that small violations of the First Amendment over a period of years are unconstitutional (see Lemon and DiCenso) while a huge violation occurring only once is de minimis. I cannot agree with such sophistry.
71
What I have said in Lemon and in the DiCenso cases decided today is relevant here. The facilities financed by taxpayers' funds are not to be used for 'sectarian' purposes. Religious teaching and secular teaching are so enmeshed in parochial schools that only the strictest supervision and surveillance would insure compliance with the condition. Parochial schools may require religious exercises, even in the classroom. A parochial school operates on one budget. Money not spent for one purpose becomes available for other purposes. Thus the fact that there are no religious observances in federally financed facilities is not controlling because required religious observances will take place in other buildings. Our decision in Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601, held that a requirement of a prayer in public schools violated the Establishment Clause. Once these schools become federally funded they become bound by federal standards (Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275, 296, 78 S.Ct. 1174, 1186, 2 L.Ed.2d 1313; Rosado v. Wyman, 397 U.S. 397, 427, 90 S.Ct. 1207, 1225, 25 L.Ed.2d 442 (concurring opinion); Simkins v. Moses H. Cone Memorial Hosp., 4 Cir., 323 F.2d 959, and accordingly adherence to Engel would require an end to required religious exercises. That kind of surveillance and control will certainly be obnoxious to the church authorities and if done will radically change the character of the parochial school. Yet if that surveillance is not searching and continuous, this federal financing is obnoxious under the Establishment and Free Exercise Clauses for the reasons stated in the companion cases.
72
In other words, surveillance creates an entanglement of government and religion which the First Amendment was designed to avoid. Yet after today's decision there will be a requirement of surveillance which will last for the useful life of the building and as we have previously noted, '(it) is hardly lack of due process for the Government to regulate that which it subsidizes.' Wickard v. Filburn, 317 U.S. 111, 131, 63 S.Ct. 82, 92, 87 L.Ed. 122. The price of the subsidy under the Act is violation of the Free Exercise Clause. Could a course in the History of Methodism be taught in a federally financed building? Would a religiously slanted version of the Reformation or Quebec politics under Duplessis be permissible? How can the Government know what is taught in the federally financed building without a continous auditing of classroom instruction? Yet both the Free Exercise Clause and academic freedom are violated when the Government agent must be present to determine whether the course content is satisfactory.
73
As I said in the Lemon and DeCenso cases, a parochial school is a unitary institution with subtle blending of sectarian and secular instruction. Thus the practices of religious schools are in no way affected by the minimal requirement that the government financed facility may not 'be used for sectarian instruction or as a place for religious worship.' Money saved from one item in the budget is free to be used elsewhere. By conducting religious services in another building, the school has—rent free—a building for nonsectarian use. This is not called Establishment simply because the government retains a continuing interest in the building for its useful life, even though the religious schools need never pay a cent for the use of the building.
74
Much is made of the need for public aid to church schools in light of their pressing fiscal problems. Dr. Eugene C. Blake of the Presbyterian Church, however, wrote in 1959:3
75
'When one remembers that churches pay no inheritance tax (churches do not die), that churches may own and operate business and be exempt from the 52 percent corporate income tax, and that real property used for church purposes (which in some states are most generously construed) is tax exempt, it is not unreasonable to prophesy that with reasonably prudent management, the churches ought to be able to control the whole economy of the nation within the predictable future. That the growing wealth and property of the churches was partially responsible for revolutionary expropriations of church property in England in the sixteenth century, in France in the eighteenth century, in Italy in the nineteenth century, and in Mexico, Russia, Czechoslovakia and Hungary (to name a few examples) in the twentieth century, seems self-evident. A government with mounting tax problems cannot be expected to keep its hands off the wealth of a rich church forever. That such a revolution is always accompanied by anticlericalism and atheism should not be surprising.'
76
The mounting wealth of the churches4 makes ironic their incessant demands on the public treasury. I said in my dissent in Walz v. Tax Comm'n, 397 U.S. 664, 714, 90 S.Ct. 1409, 1434, 25 L.Ed.2d 697:
77
'The religiously used real estate of the churches today constitutes a vast domain. See M. Larson & C. Lowell, The Churches: Their Riches, Revenues, and Immunities (1969). Their assets total over $141 billion and their annual income at least $22 billion. Id., at 232. And the extent to which they are feeding from the public trough in a variety of forms is alarming. Id., c. 10.' See A. Balk, The Religion Business (1968); 20 Church and State 8 (1967).
78
It is almost unbelievable that we have made the radical departure from Madison's Remonstrance5 memorialized in today's decision.
79
I dissent not because of any lack of respect for parochial schools but out of a feeling of despair that the respect which through history has been accorded the First Amendment is this day lost.
80
It should be remembered that in this case we deal with federal grants and with the command that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.' The million-dollar grants sustained today put Madison's miserable 'three pence' to shame. But he even thought, as I do, that even a small amount coming out of the pocket of taxpayers and going into the coffers of a church was not in keeping with our constitutional ideal.
81
I would reverse the judgment below.
1
We note that the Commissioner of Education apparently includes no time limitation on the assurances that applicants are required to give with respect to the use of the facilities for sectarian instruction or religious worship. Compare § 3(B)(3) with § 3(C) of part P of the Application Form, App. 87.
2
See Freund, Comment, Public Aid to Parochial Schools, 82 Harv.L.Rev. 1680, 1691 (1969).
3
E.g., J. Fichter, Parochial School: A Sociological Study 77—108 (1958); Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, pt. II, The Nonestablishment Principle, 81 Harv.L.Rev. 513, 574 (1968).
4
Giannella, supra, n. 3, at 583.
5
M. Pattillo & D. Mackenzie, Church-Sponsored Higher Education in the United States, 96, 167, 204 (1966).
1
Public Papers of the Presidents of the United States, John F. Kennedy, 1961, pp. 142—143, News Conference March 1, 1961.
2
'It should be clear to all that a Roman Catholic parochial school is an integral part of that church, as definitely so as is the service of worship. A parochial school is usually developed in connection with a church. In many cases the church and school monies are not even separated. Such a school is in no sense a public school, even though some children from other groups may be admitted to it. The buildings are not owned and controlled by a community of American people, not even by a community of American Roman Catholic people. The title of ownership in a public school is vested in the local community, in the elected officers of the school board or the city council. But the title of ownership in a parochial school is vested in the bishop a an individual, who is appointed by, who is under the direct control of, and who reports to the pope in Rome.' L. Boettner, Roman Catholicism 375 (1962).
3
Tax Exemption and the Churches, 3 Christianity Today, No. 22, Aug. 3, 1959, pp. 6, 7.
4
Churches that owned an unrelated business enjoyed until recently a special tax advantage. Other charitable organizations were taxed on their 'unrelated business taxable income' derived from businesses regularly carried on by them. § 512 of the Internal Revenue Code of 1954. That tax was the normal tax and surtax. Thus in the case of income derived from corporations it was 22% on the first $25,000 and 48% on any additional income. § 11. Churches were exempted from this 'unrelated business income' tax. § 511(a)(2). Thus they paid no federal taxes on any of their revenues. Under the Tax Reform Act of 1969, 83 Stat. 487, the tax advantage for unrelated business income as respects all businesses owned by churches (prior to May 27, 1969) will be terminated after January 1, 1976. § 121(b)(2), 83 Stat. 540, 26 U.S.C. § 512(b)(16) (1964 ed., Supp. V). See H.R.Rep.No.91—413 (pt. I), pp. 46—47, 48; H.R.Conf.Rep.No.91—782, p. 67.
5
The Remonstrance is reproduced in appendices to the dissenting opinion of Rutledge, J., in Everson, 330 U.S., at 63, 67 S.Ct., at 534, and to that of Douglas, J., in Walz v. Tax Comm'n, 397 U.S., at 719, 90 S.Ct., at 1437.
| 23
|
403 U.S. 573
91 S.Ct. 2075
29 L.Ed.2d 723
UNITED STATES, Petitioner,v.Roosevelt Hudson HARRIS.
No. 30.
Argued March 23, 1971.
Decided June 28, 1971.
Syllabus
Respondent was convicted of possessing nontaxpaid liquor in violation of 26 U.S.C. § 5205(a)(2). The Court of Appeals reversed on the ground that the federal tax investigator's affidavit supporting the search warrant, the execution of which resulted in the discovery of illicit liquor, was insufficient to establish probable cause. The affidavit stated that: respondent had a reputation with the investigator for over four years as being a trafficker in nontaxpaid distilled spirits; during that time the local constable had located illicit whiskey in an abandoned house under respondent's control; on the date of the affidavit the affiant had received sworn oral information from a person whom the affiant found to be a prudent person, and who feared for his life should his name be revealed, that the informant had purchased illicit whiskey from the residence described, for a period exceeding two years, most recently within two weeks; that the informant asserted he knew of another person who bought such whiskey from the house within two days; that he had personal knowledge that such whiskey was consumed in a certain outbuilding; and that he had seen respondent go to another nearby outbuilding to obtain whiskey for other persons. The Court of Appeals relied on Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, in stressing that affiant had never alleged that the informant was truthful, but only prudent, and on Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, in giving no weight to affiant's assertion concerning respondent's reputation. Held: The judgment is reversed. Pp. 577—585.
412 F.2d 796, reversed.
THE CHIEF JUSTICE, joined by Mr. Justice BLACK, Mr. Justice BLACKMUN, and Mr. Justice STEWART (as to the first sentence of item 1) concluded that:
1. The affidavit in this case, based on a tip similar to the one held sufficient in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (which was approved in Aguilar, supra), contains an ample factual foundation for believing the informant which, when taken in conjunction with the affiant's knowledge of respondent's background, afforded a basis upon which a mgistrate could reasonably issue a warrant. Both the affidavit here and the one in Jones (contrary to the situation in Spinelli, supra) purport to relate an unidentified informant's personal observations and recite prior events within his knowledge. While the affidavit here, unlike the Jones affidavit, did not aver that the informant had previously given 'correct information,' an averment of previous reliability is not essential when supported, as here, by other information; and Spinelli is not to be read as precluding a magistrate's relying on an officer's knowledge of a suspect's reputation. Pp. 577—583.
THE CHIEF JUSTICE, joined by Mr. Justice BLACK, Mr. Justice WHITE, and Mr. Justice BLACKMUN, concluded that:
2. The fact that the informant made a statement against his own penal interest when he admitted his illicit liquor purchases provides an additional basis for crediting his tip. Pp. 583—584.
Beatrice Rosenberg, Washington, D.C., for petitioner.
Steven M. Umin, Washington, D.C., for respondent.
Mr. Chief Justice BURGER announced the judgment of the Court in an opinion in which Mr. Justice BLACK and Mr. Justice BLACKMUN join, and in Part I of which Mr. Justice STEWART joins, and in Part III of which Mr. Justice WHITE joins.
1
We granted certiorari in this case to consider the recurring question of what showing is constitutionally necessary to satisfy a magistrate that there is a substantial basis for crediting the report of an informant known to the police, but not identified to the magistrate, who purports to relate his personal knowledge of criminal activity.
2
In 1967 a federal tax investigator and a local constable entered the premises of respondent Harris, pursuant to a search warrant issued by a federal magistrate, and seized jugs of whiskey upon which the federal tax had not been paid. The warrant had been issued solely on the basis of the investigator's affidavit, which recited the following:
3
'Roosevelt Harris has had a reputation with me for over 4 years as being a trafficker of nontaxpaid distilled spirits, and over this period I have received numerous information (sic) from all types of persons as to his activities. Constable Howard Johnson located a sizeable stash of illicit whiskey in an abandoned house under Harris' control during this period of time. This date, I have received information from a person who fears for their (sic) life and property should their name be revealed. I have interviewed this person, found this person to be a prudent person, and have, under a sworn verbal statement, gained the following information: This person has personal knowledge of and has purchased illicit whiskey from within the residence described, for a period of more than 2 years, and most recently within the past two weeks, has knowledge of a person who purchased illicit whiskey within the past two days from the house, has personal knowledge that the illicit whiskey is consumed by purchasers in the outbuilding known as and utilized as the 'dance hall,' and has seen Roosevelt Harris go to the other outbuilding, located about 50 yards from the residence, on numerous occasions, to obtain the whiskey for this person and other persons.'
4
Respondent was subsequently charged with possession of nontaxpaid liquor, in violation of 26 U.S.C. § 5205(a)(2). His pretrial motion to suppress the seized evidence on the ground that the affidavit was insufficient to establish probable cause was overruled, and he was convicted after a jury trial and sentenced to two years' imprisonment. The Court of Appeals for the Sixth Circuit reversed the conviction, holding that the information in the affidavit was insufficient to enable the magistrate to assess the informant's reliability and trustworthiness. 412 F.2d 796, 797 (1969).
5
The Court of Appeals relied on Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), in which we held that an affidavit based solely on the hearsay report of an unidentified informant must set forth 'some of the underlying circumstances from which the officer concluded that the informant * * * was 'credible' or his information 'reliable." Id., at 114, 84 S.Ct., at 1514. It concluded that the affidavit was insufficient because no information was presented to enable the magistrate to evaluate the informant's reliability or trustworthiness. The court noted the absence of any allegation that the informant was a 'truthful' person, but only an allegation that the informant was 'prudent.' Having found the informant's tip inadequate under Aguilar, the Court of Appeals, relying on Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), looked to the remaining allegations of the affidavit to determine whether they provided independent corroboration of the informant. The Court of Appeals held that the constable's prior discovery of a cache on respondent's property within the previous four years was too remote, and, citing certain language from Spinelli, it gave no weight whatever to the assertion that respondent had a general reputation known to the officer as a trafficker in illegal whiskey.
6
For the reasons stated below, we reverse the judgment of the Court of Appeals and reinstate the judgment of conviction.
7
* In evaluating the showing of probable cause necessary to support a search warrant, against the Fourth Amendment's prohibition of unreasonable searches and seizures, we would do well to heed the sound admonition of United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965):
8
'(T)he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.' 380 U.S., at 108, 85 S.Ct., at 746.
9
Aguilar in no way departed from these sound principles. There a warrant was issued on nothing more than an affidavit reciting:
10
'Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.' 378 U.S., at 109, 84 S.Ct., at 1511.
11
The affidavit, therefore, contained none of the underlying 'facts or circumstances' from which the magistrate could find probable cause. Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 13, 78 L.Ed. 159 (1933). On the contrary, the affidavit was a 'mere affirmation of suspicion and belief' (Nathanson, supra, at 46, 54 S.Ct., at 13) and gained nothing by the incorporation by reference of the informant's unsupported belief. See Aguilar, supra, 378 U.S., at 114 n. 4, 84 S.Ct., at 1513.
12
Significantly, the Court in Aguilar cited with approval the affidavit upheld in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). That affidavit read in pertinent part as follows:
13
'In the late afternoon of Tuesday, August 20, 1957, I, Detective Thomas Didone, Jr. received information that Cecil Jones and Earline Richardson were involved in the illicit narcotic traffic and that they kept a ready supply of heroin on hand in the above mentioned apartment. The source of information also relates that the two aforementioned persons kept these same narcotics either on their person, under a pillow, on a dresser or on a window ledge in said apartment. The source of information goes on to relate that on many occasions the source of information has gone to said apartment and purchased narcotic drugs from the above mentioned persons and that the narcotics were secreated (sic) in the above mentioned places. The last time being August 20, 1957.' Id., at 267—268 n. 2, 80 S.Ct., at 734.
14
The substance of the tip, held sufficient in Jones, closely parallels that here held insufficient by the Court of Appeals. Both recount personal and recent* observations by an unidentified informant of criminal activity factor showing that the information had been gained in a reliable manner, and serving to distinguish both tips from that held insufficient in Spinelli, supra, in which the affidavit failed to explain how the informant came by his information. Spinelli, supra, 393 U.S., at 416, 89 S.Ct., at 589.
15
The Court of Appeals seems to have believed, however, that there was no substantial basis for believing that the tip was truthful. Indeed, it emphasized that the affiant had never alleged that the informant was truthful, but only 'prudent,' a word that 'signifies that he is circumspect in the conduct of his affairs, but reveals nothing about his credibility.' 412 F.2d, at 797—798. Such a construction of the affidavit is the very sort of hypertechnicality—the 'elaborate specificity once exacted under common law'—condemned by this Court in Ventresca. A policeman's affidavit 'should not be judged as an entry in an essay contest,' Spinelli, supra, 393 U.S., at 438, 89 S.Ct., at 600 (Fortas, J., dissenting), but, rather, must be judged by the facts it contains. While a bare statement by an affiant that he believed the informant to be truthful would not, in itself, provide a factual basis for crediting the report of an unnamed informant, we conclude that the affidavit in the present case contains an ample factual basis for believing the informant which, when coupled with affiant's own knowledge of the respondent's background, afforded a basis upon which a magistrate could reasonably issue a warrant. The accusation by the informant was plainly a declaration against interest since it could readily warrant a prosecution and could sustain a conviction against the informant himself. This will be developed in Part III.
II
16
In determining what quantum of information is necessary to support a belief that an unidentified informant's information is truthful, Jones v. United States, supra, is a suitable benchmark. The affidavit in Jones recounted the tip of an anonymous informant, who claimed to have recently purchased narcotics from the defendant at his apartment, and described the apartment in some detail. After reciting the substance of the tip the affiant swore as follows:
17
'Both the aforementioned persons are familiar to the undersigned and other members of the Narcotic Squad. Both have admitted to the use of narcotic drugs and display needle marks as evidence of same.
18
'This same information, regarding the illicit narcotic traffic, conducted by (the defendant) has been given to the undersigned and to other officers of the narcotic squad by other sources of information.
19
'Because the source of information mentioned in the opening paragraph has given information to the undersigned on previous occasion and which was correct, and because this same information is given by other sources does believe that there is now illicit narcotic drugs being secreated (sic) in the above apartment * * *.' Id., 262 U.S., at 268 n. 2, 80 S.Ct., at 734.
20
Mr. Justice Frankfurther, writing for the Court in Jones, upheld the warrant. Although the information in the affidavit was almost entirely hearsay, he concluded that there was 'substantial basis' for crediting the hearsay. The informant had previously given accurate information; his story was corroborated by 'other sources' (albeit unnamed); additionally the defendant was known to the police as a user of narcotics. Justice Frankfurter emphasized the last two of these factors:
21
'Corroboration through other sources of information reduced the chances of a reckless or prevaricating tale; that petitioner was a known user of narcotics made the charge against him much less subject to scepticism than would be such a charge against one without such a history. Id., at 271, 80 S.Ct., at 736.
22
Aguilar cannot be read as questioning the 'substantial basis' approach of Jones. And unless Jones has somehow, without acknowledgment, been overruled by Spinelli, there would be no basis whatever for a holding that the affidavit in the present case is wanting. The affidavit in the present case, like that in Jones, contained a substantial basis for crediting the hearsay. Both affidavits purport to relate the personal observations of the informant—a factor that clearly distinguishes Spinelli, in which the affidavit failed to explain how the informant came by his information. Both recite prior events within the affiant's own knowledge—the needle marks in Jones and Constable Johnson's prior seizure in the present case—indicating that the defendant had previously trafficked in contraband. These prior events again distinguish Spinelli, in which no facts were supplied to support the assertion that Spinelli was 'known * * * as a bookmaker, an associate of bookmakers, a gambler, and an associate of gamblers.' Spinelli, supra, 393 U.S., at 422, 89 S.Ct., at 592.
23
To be sure there is no averment in the present affidavit, as there was in Jones, that the informant had previously given 'correct information,' but this Court in Jones never suggested that an averment of previous reliability was necessary. Indeed, when the inquiry is, as it always must be in determining probable cause, whether the informant's present information is truthful or reliable, it is curious, at the very least, that Mr. Justice HARLAN would place such stress on vague attributes of 'general background, employment * * * position in the community * * *.' (Post, at 600.) Were it not for some language in Spinelli, it is doubtful that any of these reputation attributes of the informant could be said to reveal any more about his present reliability than is afforded by the support of the officer's personal knowledge of the suspect. In Spinelli, however, the Court rejected as entitled to no weight the 'bald and unilluminating' assertion that the suspect was known to the affiant as a gambler. 393 U.S., at 414, 89 S.Ct., at 588. For this proposition the Court relied on Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933). But a careful examination of Nathanson shows that the Spinelli opinion did not fully reflect the critical points of what Nathanson held since it was limited to holding that reputation, standing alone, was insufficient; it surely did not hold it irrelevant when supported by other information. This reading of Nathanson is confirmed by Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), in which the Court, in sustaining a finding of probable cause for a warrantless arrest, held proper the assertion of the searching officer that he had previously arrested the defendant for a similar offense and that the defendant had a reputation for hauling liquor. Such evidence would rarely be admissible at trial, but the Court took pains to emphasize the very different functions of criminal trials and preliminary determinations of probable cause. Trials are necessarily surrounded with evidentiary rules 'developed to safeguard men from dubious and unjust convictions.' Id., at 174, 69 S.Ct., at 1310. But before the trial we deal only with probabilities that 'are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Brinegar, supra, at 175, 69 S.Ct., at 1310.
24
We cannot conclude that a policeman's knowledge of a suspect's reputation—something that policemen frequently know and a factor that impressed such a 'legal technician' as Mr. Justice Frankfurter—is not a 'practical consideration of everyday life' upon which an officer (or a magistrate) may properly rely in assessing the reliability of an informant's tip. To the extent that Spinelli prohibits the use of such probative information, it has no support in our prior cases, logic, or experience and we decline to apply it to preclude a magistrate from relying on a law enforcement officer's knowledge of a suspect's reputation.
III
25
Quite apart from the affiant's own knowledge of respondent's activities, there was an additional reason for crediting the informant's tip. Here the warrant's affidavit recited extrajudicial statements of a declarant, who feared for his life and safety if his identity was revealed, that over the past two years he had many times and recently purchased 'illicit whiskey.' These statements were against the informant's penal interest, for he thereby admitted major elements of an offense under the Internal Revenue Code. Section 5205(a) (2), Title 26, United States Code, proscribes the sale, purchase, or possession of unstamped liquor.
26
Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility sufficient at least to support a finding of probable cause to search. That the informant may be paid or promised a 'break' does not eliminate the residual risk and opprobrium of having admitted criminal conduct. Concededly admissions of crime do not always lend credibility to contemporaneous or later accusations of another. But here the informant's admission that over a long period and currently he had been buying illicit liquor on certain premises, itself and without more, implicated that property and furnished probable cause to search.
27
It may be that this informant's out-of-court declarations would not be admissible at respondent's trial under Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913), or under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). But Donnelly's implication that statements against penal interest are without value and per se inadmissible has been widely criticized; see the dissenting opinion of Mr. Justice Holmes in Donnelly, supra, 228 U.S., at 277, 33 S.Ct., at 461; 5 J. Wigmore, Evidence § 1477 (3d ed. 1940), and has been partially rejected in Rule 804 of the Proposed Rules of Evidence for the District Courts and Magistrates. More important, the issue in warrant proceedings is not guilt beyond reasonable doubt but probable cause for believing the occurrence of a crime and the secreting of evidence in specific premises. See Brinegar v. United States, supra, 338 U.S., at 173, 69 S.Ct., at 1309. Whether or not Donnelly is to survive as a rule of evidence in federal trials, it should not be extended to warrant proceedings to prevent magistrates from crediting, in all circumstances, statements of a declarant containing admissions of criminal conduct. As for Bruton, that case rested on the Confrontation Clause of the Sixth Amendment which seems inapposite to ex parte search warrant proceedings under the Fourth Amendment.
28
It will not do to say that warrants may not issue on uncorroborated hearsay. This only avoids the issue of whether there is reason for crediting the out-of-court statement. Nor it is especially significant that neither the name nor the person of the informant was produced before the magistrate. The police themselves almost certainly knew his name, the truth of the affidavit is not in issue, and McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), disposed of the claim that the informant must be produced whenever the defendant so demands.
29
Reversed.
30
Mr. Justice STEWART joins in Part I of THE CHIEF JUSTICE's opinion and in the judgment of the Court.
31
Mr. Justice WHITE agrees with Part III of THE CHIEF JUSTICE's opinion and has concluded that the affidavit, considered as a whole, was sufficient to support issuance of the warrant. He therefore concurs in the judgment of reversal.
32
Mr. Justice BLACK, concurring.
33
While I join the opinion of THE CHIEF JUSTICE which distinguishes this case from Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), I would go further and overrule those two cases and wipe their holdings from the books for the reasons, among others, set forth in the dissent of Mr. Justice Clark in Aguilar, which I joined, and my dissent in Spinelli.
34
Mr. Justice BLACKMUN, concurring.
35
I join the opinion of THE CHIEF JUSTICE and the judgment of the Court, but I add a personal comment in order to make very clear my posture as to Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), cited in several places in that opinion. I was a member of the 6—2 majority of the United States Court of Appeals of the Eighth Circuit in Spinelli v. United States, 382 F.2d 871 (1967), which this Court by a 5—3 vote reversed, with the pivotal Justice concluding his concurring opinion, 393 U.S., at 429, 89 S.Ct., at 595, by the observation that, 'Pending full-scale reconsideration of that case (Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)), on the one hand, or of the Nathanson-Aguilar cases on the other, I join the opinion of the Court and the judgment of reversal, especially since a vote to affirm would produce an evenly divided Court.' Obviously, I then felt that the Court of Appeals had correctly decided the case. Nothing this Court said in Spinelli convinced me to the contrary. I continue to feel today that Spinelli at this level was wrongly decided and, like Mr. Justice BLACK, I would overrule it.
36
Mr. Justice HARLAN, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join, dissenting.
37
This case presents the question of how our decisions in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), apply where magistrates in issuing search warrants are faced with the task of assessing the probable credibility of unidentified informants who purport to describe criminal activity of which they have personal knowledge, and where it does not appear that such informants have previously supplied accurate information to law enforcement officers.
38
I cannot agree that the affidavit here at issue provided a sufficient basis for an independent determination by a neutral judicial officer, that probable cause existed. Accordingly, I would affirm the judgment of the Court of Appeals. Five members of this Court, however, for four separately expressed reasons, have concluded that the judgment below must be reversed. Some of the theories employed by those voting to reverse are wholly unlike any of the grounds urged by the Government.
39
* Where, as in this case, the affiant states under oath that he has been informed of the existence of certain criminal activity, but has not observed that activity himself, a magistrate in discharging his duty to make an independent assessment of probable cause can properly issue a search warrant only if he concludes that: (a) the knowledge attributed to the informant, if true, would be sufficient to establish probable cause; (b) the affiant is likely relating truthfully what the informer said; and (c) it is reasonably likely that the informer's description of criminal behavior accurately reflects reality.1
40
In the case before us, no one maintains that the magistrate's judgment as to elements (a) and (b) was not properly supported. Plainly the information set forth in the affidavit, if entitled to credit, establishes probable cause. And the magistrate was certainly entitled to rely on the agent's official status, his personal observation of the agent, and the oath administered to him by the magistrate in concluding that the affiant's assertions as to what he had been told by the informer were credible.
41
The final component of the probable cause equation, here involved, is that it must appear reasonably likely that the informer's claim that criminal conduct has occurred or is occurring is probably accurate. Our cases establish that this element is satisfied only if there is reason to believe both that the informer is a truthful person generally and that he has based his particular conclusions in the matter at hand on reliable data, Aguilar v. Texas, supra; Spinelli v. United States, supra for it is not reasonable to invade another's premises on the basis of information, even if it appears quite damning when simply taken at face value, unless there is corroboration of its trustworthiness. The fact that the magistrate has determined that the agent probably truthfully reported what the informant conveyed cannot, of course, establish the credibility or reliability of the information itself. More immediately relevant here, our cases have established that where the affiant relies upon the assertions of confidants to establish probable cause, the affidavit must set forth facts which enable the magistrate to judge for himself both the probable credibility of the informant and the reliability of his information, for only if this condition is met can a reviewing court be satisfied that the magistrate has fulfilled his constitutional duty to render an independent determination that probable cause exists. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Cf. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933); Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).2
42
The parties are in agreement with these principles and have not urged that they be re-examined. Indeed, I think these precepts follow ineluctably from the constitutional command that 'no Warrants shall issue, but upon probable cause.' Whether, in this case, either of these tests of the trustworthiness of the informer's tip has been met is, however, vigorously disputed.
II
43
Although the Court of Appeals did not address itself to this contention, respondent claims that the affidavit is insufficient to establish the reliability of the evidence upon which the informant based his conclusions. Of course, most of these data come from alleged direct personal observation of the informant, surely a sufficient basis upon which to predicate a finding of reliability under any test. However, respondent stresses that the allegation of direct observation of the criminal activity does not necessarily purport to embrace a period less than two weeks prior to the issuance of the search warrant. Moreover, the reliability of the source of the information that a purchase was made 'within the past two days' is not established and, it is argued, the other information was too stale to support the issuance of a warrant.
44
This argument is premised upon an overly technical view of the affidavit. The informant is said to have personally bought illegal whiskey from respondent 'within the past 2 weeks,' which could well include a point in time quite close to the issuance of the warrant. More importantly, the totality of the tip evidently reveals that the informer purported to describe an ongoing operation which he claimed he had personally observed over the course of two years. Giving due deference to the magistrate's determination of probable cause and reading the affidavit 'in a commonsense and realistic fashion,' United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), I must conclude that the affidavit sets forth sufficient data to permit a magistrate to determine that, if the informer was likely telling the truth, information adequate to support a finding of probable cause was likely obtained in a reliable fashion.
III
45
I turn, then, to what the parties have treated as the crux of the controversy before us. Respondent contends, and the Court of Appeals so held, that the affidavit does not sufficiently set forth facts and circumstances from which the magistrate might properly have concluded that the informant, in purporting to detail his personal observation, was probably telling the truth. Conversely, the Government principally argues that two factors, singly or in combination, provided a factual basis for the magistrate's judgment that the tip was credible. First, the agent stated that he had 'interviewed this person (and) found this person to be a prudent person.' Second, the informant described the criminal activity in some detail and from his own personal knowledge.3
A.
46
The Government's first contention misconceives the basic thrust of this Court's decisions in the Nathanson, Giordenello, Aguilar, Spinelli, and Whiteley cases, supra. The central proposition common to each of these decisions is that the determination of probable cause is to be made by the magistrate, not the affiant. That the agent-affiant determined the informer to be prudent cannot be a basis for sustaining this warrant unless magistrates are entitled to delegate their responsibilities to law enforcement officials. Nathanson held that an affidavit to the effect that the affiant 'has cause to suspect and does believe' that illicit liquor was located on certain premises did not sufficiently apprise the issuing magistrate of the underlying 'facts or circumstances' from which 'he can find probable cause.' 290 U.S., at 47, 54 S.Ct., at 13 (emphasis added). In Aguilar, a sworn assertion that the informant was 'a credible person' was held insufficient to enable the magistrate to assess that conclusion for himself. Only two Terms ago, we held a warrant constitutionally defective because '(t)hough the affiant swore that his confidant was 'reliable,' he offered the magistrate no reason in support of this conclusion.' Spinelli v. United States, 393 U.S., at 416, 89 S.Ct., at 589. Reading the assertion that the informer in this case was 'prudent' in the broadest conceivable commonsense fashion, it does no more than claim he was 'credible' or 'reliable,' i.e., that he was likely telling the truth.4 Such an assertion, however, is no more than a conclusion which the Constitution requires must be drawn independently by the magistrate. What this portion of the affidavit lacks are any of the underlying 'facts or circumstances' that informed the agent's conclusion and whose presentation to the magistrate would enable him to assess the probability that this determination was sufficiently plausible to justify authorizing a search of respondent's premises.
B
47
Nor do I think this void is filled by the fact that the informant claimed to speak from his personal knowledge. It is true that in Nathanson the Court was not dealing with the sufficiency of the allegations respecting one or more of the above-described components of probable cause, but merely with a bare overall statement of the affiant that probable cause existed. Further, as the Government notes, our chief, but not sole, emphasis in Aguilar was upon the absence of any evidence communicated by the affiant from which a magistrate could infer that the confidant gathered his evidence from a reliable source. From this, the Government contends that Aguilar's reliability-of-the-informer test is not applicable in full force where, as here, it does seem clear that the sources of the informer's belief, if truthfully reported, were reliable. I think this argument makes too much of the circumstances of our previous cases. The central point of the discussion of probable cause in Aguilar is, as perhaps more precisely emphasized by our explicit twin holdings in Spinelli, see 393 U.S., at 416, 89 S.Ct., at 589, that the two elements necessary to establish the informer's trustworthiness—namely, that the tip relayed to the magistrate be both truthful and reliable—are analytically severable. It is not possible to argue that since certain information, if true, would be trustworthy, therefore, it must be true. The possibility remains that the information might have been fabricated. This is why our cases require that there be a reasonable basis for crediting the accuracy of the observation related in the tip. In short, the requirement that the magistrate independently assess the probable credibility of the informant does not vanish where the source of the tip indicates that, if true, it is trustworthy.
48
This is not to say, however, that I think the fact of asserted personal observation can never play a role in determining whether that observation actually took place. I can perceive at least two ways in which, in circumstances similar to those of this case, that information might be taken to bear upon the informer's credibility, as well as upon the reliability of his sources of information. For example, to the extent that the informant is somehow responsible to the affiant, the fact of asserted personal observation might be of some value to a magistrate in assessing the informer's credibility. In such circumstances, perhaps a magistrate could conclude that where the confidant claimed to speak from personal knowledge it is somewhat less likely that the informant was falsifying his report because, if the search yields no fruit, when called to account he would be unable to explain this away by impugning the veracity or reliability of his sources. However, no such relationship is revealed in this case.
49
Additionally, it might be of significance that the informant had given a more than ordinarily detailed description of the suspect's criminal activities. Although this would be more probative of the reliability of the information, it might also permissibly lead a magistrate, in an otherwise close case, to credit the accuracy of the account as well. I do not believe, however, that in this instance the relatively meager allegations of this character are, standing alone, enough to satisfy the credibility requirement essential to the sufficiency of this probable-cause affidavit. Reading this aspect of the affidavit in a not unduly circumspect manner, the allegations are of a character that would readily occur to a person prone to fabricate. To hold that this aspect of the affidavit, without more, would enable 'a man of reasonable caution,' Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881, 18 L.Ed.2d 1040 (1967), to conclude that there was adequate reason to believe the informant credible would open the door to the acceptance of little more than florid affidavits as justifying the issuance of search warrants.
C
50
Some members of the Court would reverse the judgment below on the grounds that the magistrate might properly have credited the informant's assertions because they confessed to the commission of a crime. This rationale is advanced notwithstanding the Government's failure even to suggest it.
51
Had this argument been pressed upon us, I would find it difficult to accept. First, the analogy to the hearsay exception is quite tenuous. The federal rule, although it is often criticized, is that declarations against penal interest do not fall within this exception. Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913). Moreover, because it has been thought that such statements should be relied upon by factfinders only when necessity justifies it, the rule universally requires a showing that the declarant cannot be produced personally before the trier of fact, C. McCormick, Evidence §§ 253, 257 (1954), an element not shown to be present here. See Part V, infra. Finally, we have not found any instance of the application of this rule where the witness declined to reveal to the trier of fact the identity of the declarant, presumably because without this knowledge it cannot be readily assumed that the declarant might have had reason to suspect the use of the statement would do him harm. Thus, while strict rules of evidence certainly do not govern magistrates' assessments of probable cause, it would require a rather extensive relaxation of them to permit reliance on this factor. And these rules cannot be completely relaxed, of course, since the basic thrust of Spinelli, Aguilar, Nathanson, Whiteley, and Giordenello, supra, is to prohibit the issuance of warrants upon mere uncorroborated hearsay. The simple statement by an affidant that an unspecified individual told the affiant that he and another had committed a crime, where offered to prove the complicity of the third party, is little, if any, more than that.
52
Secondly, the rationale for this exception to the hearsay rule is that the fact that the declaration was against the speaker's self-interest tends to indicate that its substance is accurate. 5 J. Wigmore, Evidence § 1457 (3d ed. 1940). But where the declarant is also a police informant it seems at least as plausible to assume, without further enlightenment either as to the Government's general practice or as to the particular facts of this case, that the declarant-confidant at least believed he would receive absolution from prosecution for his confessed crime in return for his statement. (This, of course, would not be an objection where the declarant is not also the informant. See Spinelli, supra, 393 U.S., at 425, 89 S.Ct., at 593—594 (White, J., concurring).) Thus, some showing that the informant did not possess illusions of immunity might well be essential.
53
Thirdly, the effect of adopting such a rule would be to encourage the Government to prefer as informants participants in criminal enterprises rather than ordinary citizens, a goal the Government specifically eschews in its brief in this case upon the explicit premise that such persons are often less reliable than those who obey the law. Brief for the United States 14.
54
In short, I am inclined to the view, although I would not decide the question here, that magistrates may not properly predicate a determination that an unnamed confidant is credible upon the bare fact that by giving information he also confessed to having committed a crime. More importantly at this juncture, it seems to me quite clear that no such rule should be injected into our federal jurisprudence in the absence of any representation by the Government that the factual assumptions underlying it do, indeed, comport with reality, and in the face of the Government's apparent explicit assertion, in this very case, that those able to supply information sufficient to establish probable cause under such a new rule would tend to be less reliable than those who cannot. The necessity for this haste to embrace such a speculative theory, without any argument from those who will be affected by it, wholly escapes me.
IV
55
Finally, it is argued that even if the tip plus the affiant's assertion that the informant was 'prudent' did not provide a reasonable basis for the magistrate's conclusion that the confidant was credible, two other factors would have sufficed. First, at some time in the past four or more years, in an abandoned house 'under Harris' control,' the local constable had located 'a sizeable stash of illicit whiskey.' While an assertion of 'prior events within the affiant's own knowledge * * * indicating that the defendant had previously trafficked in contraband,' ante, at 581, admittedly did not appear in the affidavit held insufficient in Spinelli, this hardly distinguishes that case in any purposeful manner. Surely, it cannot seriously be suggested that, once an individual has been convicted of bootlegging, any anonymous phone caller who states he has just personally witnessed another illicit sale (up to four years later) by that individual provides federal agents with probable cause to search the suspect's home. I can only conclude that this argument is a makeweight, intended to avoid the necessity of calling for an outright overruling of Spinelli.
56
Secondly, the claim is made that a magistrate could conclude the confidant here was credible because the agent had 'received numerous information from all types of persons as to (respondent's) activities.' To rely on this factor alone, of course, is flatly inconsistent with Spinelli, where we held that 'the allegation that Spinelli was 'known' to the affiant and to other federal and local law enforcement officers as a gambler and an associate of gamblers is but a bald and unilluminating assertion of suspicion that is entitled to no weight in appraising the magistrate's decision.' Spinelli, supra, at 414, 89 S.Ct., at 588. In the instant case, the affiant did not purport to 'know' respondent was a dealer in illicit whiskey, nor did he identify the source of his information to that effect.
57
Nevertheless, the contention is advanced that this aspect of Spinelli had 'no support in our prior cases, logic, or experience,' ante, at 583, and thus should be discarded. However, Nathanson held that '(m)ere affirmance of belief or suspicion is not enough' to establish probable cause for issuance of a warrant to search a private dwelling. 290 U.S., at 47, 54 S.Ct., at 13. It is argued that Nathanson 'was limited to holding that reputation, standing alone, was insufficient.' Ante, at 582. But this is the precise problem here—only the respondent's reputation has been seriously invoked to establish the credibility of the informant, an element of probable cause entirely severable from the requirement that the confidant's source be reliable. See Parts I and III of this opinion.
58
A narrower view of Nathanson is said to be confirmed by reading Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), to have 'held proper the assertion of the searching officer that he had previously arrested the defendant for a similar offense and that the defendant had a reputation for hauling liquor.' Ante, at 582. But Brinegar itself was very carefully limited to situations involving the arrest of those driving moving vehicles, 338 U.S., at 174, 176—177, 69 S.Ct., at 1310, 1311, a problem that has typically been treated as sui generis by this Court. Further, the Court in Brinegar specifically held the arrest valid '(w)holly apart from (the agent's) knowledge that (the suspect) bore the general reputation of being engaged in liquor running.' Id., at 170, 69 S.Ct., at 1308. While it is true that Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960), cites the fact that the informant's 'story was corroborated by other sources of information,' the opinion nowhere suggests that this factor, standing alone, would have been sufficient to enable a magistrate to assess the confidant's reliability. At least equal emphasis was placed upon the informant's previously proved veracity and his tangible proof of actual observation of the illegal activity.
59
Thus, I conclude that Spinelli and Nathanson, without contradiction, stand for the proposition that the magistrate could not establish the likely veracity of the unidentified informant on the grounds that his story coincided, in unspecified particulars, with rumors circulated by unknown third parties. I am not certain what is meant by the claim that such a rule of law is illogical. It would, indeed, be illogical to argue that the agent could not have relied upon information as to respondent's reputation that he deemed credible and reliable in concluding that the informant had likely told the truth. But it was not the agent's task to determine whether a search warrant should issue. This was the magistrate's responsibility. As to the magistrate, I confess that I do not comprehend, where the issue is whether the confidant is to be believed, how the agent's assertion that he had 'received numerous information from all types of persons as to (respondent's) activities,' can, as a matter of logic or experience, be accurately described as other than 'a bald and unilluminating assertion of suspicion.' It is, at best, a conclusory statement that respondent had a deserved reputation as a dealer in illicit whiskey. The Fourth Amendment, I repeat, requires that such conclusions be drawn, from the underlying facts and circumstances, by the magistrate, not the agent.
V
60
The Government has earnestly protested that the result below, if permitted to stand, will seriously hamper the enforcement of the federal criminal law. It is said that if this affidavit is insufficient to support the issuance of a search warrant, it will be extremely difficult to meet the Fourth Amendment's standards where the informer, although apparently quite credible, has never before given accurate information to law enforcement officers, especially where he, or the agent, is unwilling to have the informant's identity disclosed. It would, indeed, be anomalous if the Fourth Amendment dictated such results, for it surely was never intended as a hindrance to fair, vigorous law enforcement. Further, I think there is much truth in the Government's supporting assertion that the ordinary citizen who has never before reported a crime to the police may, in fact, be more reliable than one who supplies information on a regular basis. 'The latter is likely to be someone who is himself involved in criminal activity or is, at least, someone who enjoys the confidence of criminals.' Government's Brief 14.5
61
I do not, however, share the Government's concern that a judgment of affirmance would have such a constricting effect on legitimate federal law enforcement. For example, it would seem that such informers could often be brought before the magistrate where he could assess their credibility for himself. We cannot assume that the ordinary lawabiding citizen has qualms about this sort of cooperation with law enforcement officers. And I do not understand the Government to be asserting that effective law enforcement will often dictate that the identity of informants be kept secret from federal magistrates themselves. Moreover, it will always be open to the officer to seek corroboration of the tip.
62
Beyond these considerations, I do not understand why a federal agent, who has determined a confidant to be 'reliable,' 'credible,' or 'prudent' cannot lay before the magistrate the grounds upon which he based that judgment. I would not hold that a magistrate's determination that an informer is 'prudent' is insufficient to support the issuance of a warrant. To the contrary, I would only insist that this judgment be that of the magistrate, not the law enforcement officer who seeks the warrant. Without violating the confidences of his source, the agent surely could describe for the magistrate such things as the informer's general background, employment, personal attributes that enable him to observe and relate accurately, position in the community, reputation with others, personal connection with the suspect, any circumstances which suggest the probable absence of any motivation to falsify, the apparent motivation for supplying the information, the presence or absence of a criminal record or association with known criminals, and the like.
VI
63
This affidavit is barren of anything that enabled the magistrate to judge for himself of the credibility of the informant. We should not countenance the issuance of a search warrant by a federal magistrate upon no more evidence than that presented here. A person who has not been shown to possess any of the common attributes of credibility, whose name cannot be disclosed to a magistrate, and whose information has not been corroborated is precisely the sort of informant whose tip should not be the sole basis for the issuance of a warrant, if the constitutional command that 'no Warrants shall issue, but upon probable cause' is to be respected. And the assertion that such a person may be believed where he confesses that he is a criminal or where his statements dovetail with other, unspecified rumors carries its own refutation. With all respect, such an analysis bespeaks more a firm hostility to Aguilar, Nathanson, and Spinelli than a careful judgment as to the principles those cases reflect. Despite all its surface detail, this affidavit cannot be sustained without cutting deeply into the core requirement of the Fourth Amendment that search warrants cannot issue except upon the independent finding of a neutral magistrate that probable cause exists.
64
For these reasons, I dissent.
*
We reject the contention of respondent that the informant's observations were too stale to establish probable cause at the time the warrant was issued. The informant reported having purchased whiskey from respondent 'within the past 2 weeks,' which could well include purchases up to the date of the affidavit. Moreover, these recent purchases were part of a history of purchases over a two-year period. It was certainly reasonable for a magistrate, concerned only with a balancing of probabilities, to conclude that there was a reasonable basis for a search.
1
Of course where, as here, the affiant provides information in addition to the informant's tip, the magistrate could alternatively find probable cause, without examining the tip, if he can conclude that (a) the affiant is probably telling the truth and (b) the affidavit apart from the tip is sufficiently informative to establish probable cause. See Spinelli v. United States, 393 U.S. 410, 414, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969). Concededly, this latter element is not present here. Government's Brief 16. Without crediting the tip, the affidavit is insufficient.
2
Giordenello and Whiteley each involved an arrest warrant rather than a search warrant, but the analysis required to determine the validity of either is basically the same.
3
The Government makes brief reference to the assertion that the informant's verbal statement to the affiant was 'sworn.' Government's Brief 13, n. 2. I do not see how this affects the case. Surely there is no reason to suspect that this indicates the confidant anticipated potential perjury proceedings if he were subsequently proved a liar. Nor does that assertion reveal, in any meaningful sense, what sort of relationship this might have reflected or created between the agent and his informer.
4
The Court of Appeals in reversing respondent's conviction stated that '(t) he allegation that (the informant) is a 'prudent person' signifies that he is circumspect in the conduct of his affairs, but reveals nothing about his credibility.' 412 F.2d 796, at 797—798. I consider this a too restrictive construction of the affidavit and cannot accept that aspect of the reasoning of the Court of Appeals.
5
Of course, the magistrate was presented no evidence that this is, in fact, such a case. Indeed, the very allegations in the affidavit to the effect that the informant here had been a frequent purchaser from respondent would suggest that he 'is, at least, someone who enjoys the confidence of criminals.' The Government's argument, as I understand it, is that the affidavit in this case is typical of those that can be produced by agents who rely on first-time informers not bound up themselves in criminal activity. As I point out below, if this had been the situation here, and that fact had been communicated to the magistrate, this would be a very different case.
| 01
|
403 U.S. 698
91 S.Ct. 2068
29 L.Ed.2d 810
Cassius Marsellus CLAY, Jr. also known as Muhammad Ali, Petitioner,v.UNITED STATES.
No. 783.
Argued April 19, 1971.
Decided June 28, 1971.
Chauncey Eskridge, Chicago, Ill., for petitioner.
Solicitor Gen. Erwin N. Griswold for respondent.
PER CURIAM.
1
The petitioner was convicted for willful refusal to submit to induction into the Armed Forces. 62 Stat. 622, as amended, 50 U.S.C.App. § 462(a). (1964 ed., Supp. V). The judgment of conviction was affirmed by the Court of Appeals for the Fifth Circuit.1 We granted certiorari, 400 U.S. 990, 91 S.Ct. 457, 27 L.Ed.2d 438 to consider whether the induction notice was invalid because grounded upon an erroneous denial of the petitioner's claim to be classified as a conscientious objector.
2
* The petitioner's application for classification as a conscientious objector was turned down by his local draft board, and he took an administrative appeal. The State Appeal Board tentatively classified him I—A (eligible for unrestricted military service) and referred his file to the Department of Justice for an advisory recommendation, in accordance with then-applicable procedures. 50 U.S.C.A.App. § 456(j) (1964 ed., Supp. V). The FBI then conducted an 'inquiry' as required by the statute, interviewing some 35 persons, including members of the petitioner's family and many of his friends, neighbors, and business and religious associates.
3
There followed a hearing on 'the character and good faith of the (petitioner's objections' before a hearing officer appointed by the Department. The hearing officer, a retired judge of many years' experience,2 heard testimony from the petitioner's mother and father, from one of his attorneys, from a minister of his religion, and from the petitioner himself. He also had the benefit of a full report from the FBI. On the basis of this record the hearing officer concluded that the registrant was sincere in his objection on religious grounds to participation in war in any form, and he recommended that the conscientious objector claim be sustained.3
4
Notwithstanding this recommendation, the Department of Justice wrote a letter to the Appeal Board, advising it that the petitioner's conscientious objector claim should be denied. Upon receipt of this letter of advice, the Board denied the petitioner's claim without a statement of reasons. After various further proceedings which it is not necessary to recount here, the petitioner was ordered to report for induction. He refused to take the traditional step forward, and this prosecution and conviction followed.
II
5
In order to qualify for classification as a conscientious objector, a registrant must satisfy three basic tests. He must show that he is conscientiously opposed to war in any form. Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168. He must show that this opposition is based upon religious training and belief, as the term has been construed in our decisions. United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733; Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308. And he must show that this objection is sincere. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428. In applying these tests, the Selective Service System must be concerned with the registrant as an individual, not with its own interpretation of the dogma of the religious sect, if any, to which he may belong. United States v. Seeger, supra; Gillette v. United States, supra; Williams v. United States, 5 Cir., 216 F.2d 350, 352.
6
In asking us to affirm the judgment of conviction, the Government argues that there was a 'basis in fact,' cf. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567, for holding that the petitioner is not opposed to 'war in any form,' but is only selectively opposed to certain wars. See Gillette v. United States, supra. Counsel for the petitioner, needless to say, takes the opposite position. The issue is one that need not be resolved in this case. For we have concluded that even if the Government's position on this question is correct, the conviction before us must still be set aside for another quite independent reason.
III
7
The petitioner's criminal conviction stemmed from the Selective Service System's denial of his appeal seeking conscientious objector status. That denial, for which no reasons were ever given, was, as we have said, based on a recommendation of the Department of Justice, overruling its hearing officer and advising the Appeal Board that it 'finds that the registrant's conscientious-objector claim is not sustained and recommends to your Board that he be not (so) classified.' This finding was contained in a long letter of explanation, from which it is evident that Selective Service officials were led to believe that the Department had found that the petitioner had failed to satisfy each of the three basic tests for qualification as a conscientious objector.
8
As to the requirement that a registrant must be opposed to war in any form, the Department letter said that the petitioner's expressed beliefs 'do not appear to preclude military service in any form, but rather are limited to military service in the Armed Forces of the United States. * * * These constitute only objections to certain types of war in certain circumstances, rather than a general scruple against participation in war in any form. However, only a general scruple against participation in war in any form can support an exemption as a conscientious objector under the Act. United States v. Kauten, 2 Cir., 133 F.2d 703.'
9
As to the requirement that a registrant's opposition must be based upon religious training and belief, the Department letter said: '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 grounds which primarily are political and racial.'
10
As to the requirement that a registrant's opposition to war must be sincere, that part of the letter began by stating that 'the registrant has not consistently manifested his conscientious-objector claim. Such a course of overt manifestations is requisite to establishing a subjective state of mind and belief.' There followed several paragraphs reciting the timing and circumstances of the petitioner's conscientious objector claim, and a concluding paragraph seeming to state a rule of law—that 'a registrant has not shown overt manifestations sufficient to establish his subjective belief where, as here, his conscientious-objector claim was not asserted until military service became imminent. Campbell v. United States, 4 Cir., 221 F.2d 454. United States v. Corliss, 280 F.2d 808, cert. denied, 364 U.S. 884, 81 S.Ct. 167, 5 L.Ed.2d 105.'
11
In this Court the Government has now fully conceded that the petitioner's beliefs are based upon 'religious training and belief,' as defined in United States v. Seeger, supra: 'There is no dispute that petitioner's professed beliefs were founded on basic tenets of the Muslim religion, as he understood them, and derived in substantial part from his devotion to Allah as the Supreme Being. Thus, under this Court's decision in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733, his claim unquestionably was within the 'religious training and belief' clause of the exemption provision.'4 This concession is clearly correct. For the record shows that the petitioner's beliefs are founded on tenets of the Muslim religion as he understands them. They are surely no less religiously based than those of the three registrants before this Court in Seeger. See also Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308.
12
The Government in this Court has also made clear that it no longer questions the sincerity of the petitioner's beliefs.5 This concession is also correct. The Department hearing officer—the only person at the administrative appeal level who carefully examined the petitioner and other witnesses in person and who had the benefit of the full FBI file—found 'that the registrant is sincere in his objection.' The Department of Justice was wrong in advising the Board in terms of a purported rule of law that it should disregard this finding simply because of the circumstances and timing of the petitioner's claim. See Ehlert v. United States, 402 U.S. 99, 103—104, 91 S.Ct. 1319, 1322—1323, 28 L.Ed. 625; United States ex rel. Lehman v. Laird, 4 Cir., 430 F.2d 96, 99; United States v. Abbott, 8 Cir., 425 F.2d 910, 915; United States ex rel. Tobias v. Laird, 4 Cir., 413 F.2d 936, 939—940; Cohen v. Laird, D.C., 315 F.Supp. 1265, 1277—1278.
13
Since the Appeal Board gave no reasons for its denial of the petitioner's claim, there is absolutely no way of knowing upon which of the three grounds offered in the Department's letter it relied. Yet the Government now acknowledges that two of those grounds were not valid. And, the Government's concession aside, it is indisputably clear, for the reasons stated, that the Department was simply wrong as a matter of law in advising that the petitioner's beliefs were not religiously based and were not sincerely held.
14
This case, therefore, falls squarely within the four coners of this Court's decision in Sicurella v. United States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436. There as here the Court was asked to hold that an error in an advice letter prepared by the Department of Justice did not require reversal of a criminal conviction because there was a ground on which the Appeal Board might properly have denied a conscientious objector classification. This Court refused to consider the proffered alternative ground:
15
'(W)e feel that this error of law by the Department, to which the Appeal Board might naturally look for guidance on such questions, must vitiate the entire proceedings at least where it is not clear that the Board relied on some legitimate ground. Here, where it is impossible to determine on exactly which grounds the Appeal Board decided, the integrity of the Selective Service System demands, at least, that the Government not recommend illegal grounds. There is an impressive body of lower court cases taking this position and we believe that they state the correct rule.' Di., at 392, 75 S.Ct., at 406.
16
The doctrine thus articulated 16 years ago in Sicurella was hardly new. It was long ago established as essential to the administration of criminal justice. Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117. In Stromberg the Court reversed a conviction for violation of a California statute containing three separate clauses, finding one of the three clauses constitutionally invalid. As Chief Justice Hughes put the matter, '(I)t is impossible to say under which clause of the statute the conviction was obtained.' Thus, 'if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld.' Id., at 368, 51 S.Ct., at 535.
17
The application of this doctrine in the area of Selective Service law goes back at least to 1945, and Judge Learned Hand's opinion for the Second Circuit in United States ex rel. Levy v. Cain, 149 F.2d 338. It is a doctrine that has been consistently and repeatedly followed by the federal courts in dealing with the criminal sanctions of the selective service laws. See, e.g., United States v. Lemmens, 430 F.2d 619, 623—624 (CA7 1970); United States v. Broyles, 423 F.2d 1299, 1303—1304 (CA4 1970); United States v. Haughton, 413 F.2d 736 (CA9 1969); United States v. Jakobson, 325 F.2d 409, 416—417 (CA2 1963), aff'd sub nom. United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733; Kretchet v. United States, 284 F.2d 561, 565—566 (CA9 1960); Ypparila v. United States, 219 F.2d 465, 469 (CA10 1954); United States v. Englander, 271 F.Supp. 182 (SDNY 1967); United States v. Erikson, 149 F.Supp. 576, 578—579 (SDNY 1957). In every one of the above cases the defendant was acquitted or the conviction set aside under the Sicurella application of the Stromberg doctrine.
18
The long established rule of law embodied in these settled precedents thus clearly requires that the judgment before us be reversed.
It is so ordered
19
Judgment reversed.
20
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
21
Mr. Justice DOUGLAS, concurring.
22
I would reverse this judgment of conviction and set the petitioner free.
23
In Sicurella v. United States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436,1 the wars that the applicant would fight were not 'carnal' but those 'in defense of Kingdom interest.' Id., at 389, 75 S.Ct., at 405. Since it was impossible to determine on exactly which ground the Appeal Board had based its decision, we reversed the decision sustaining the judgment of conviction. We said: 'It is difficult for us to believe that the Congress had in mind this type of activity when it said the thrust of conscientious objection must go to 'participation in war in any form.' Id., at 390, 75 S.Ct., at 405.
24
In the present case there is no line between 'carnal' was and 'spiritual' or symbolic wars. Those who know the history of the Mediterranean littoral know that the jihad of the Moslem was a bloody war.
25
This case is very close in its essentials to Negre v. Larsen, 401 U.S. 437, 91 S.Ct. 828, decided March 8, 1971. The church to which that registrant belonged favored 'just' wars and provided guidelines to define them. The church did not oppose the war in Vietnam but the registrant refused to comply with an order to go to Vietnam because participating in that conflict would violate his conscience. The Court refused to grant him relief as a conscientious objector, overruling his constitutional claim.
26
The case of Clay is somewhat different, though analogous. While there are some bits of evidence showing conscientious objection to the Vietnam conflict, the basic objection was based on the teachings of his religion. He testified that he was
27
'sincere in every bit of what the Holy Qur'an and the teachings of the Honorable Elijah Muhammad tell us and it is that we are not to participate in wars on the side of nobody who—on the side of non believers, and this is a Christian country and this is not a Muslim country, and theGovernment and the history and the facts shows that every more toward the Honorable Elijah Muhammad is made to distort and is made to ridicule him and is made to condemn him and the Government has admitted that the police of Los Angeles were wrong about attacking and killing our brothers and sisters and they were wrong in Newark, New Jersey, and they were wrong in Louisiana, and the outright, every day oppressors and enemies are the people as a whole, the whites of this nation. So, we are not, according to the Holy Qur'an, to even as much as aid in passing a cup of water to the—even a wounded. I mean, this is in the Holy Qur'an, and as I said earlier, this is not me talking to get the draft board—or to dodge nothing. This is there before I was borned and it will be there when I'm dead but we believe in not only that part of it, but all of it.'
28
At another point he testified: (T)he Holy Qur'an do teach us that we do not take part of—in any part of war unless declared by Allah himself, or unless it's an Islamic World War, or a Holy War, and it goes as far—the Holy Qur'an is talking still, and saying we are not to even as much as aid the infidels or the nonbelievers in Islam, even to as much as handing them a cup of water during battle.'
29
'So, this is the teachings of the Holy Qur'an before I was born, and the Qur'an, we follow not only that part of it, but every part.' The Koran defines jihad as an injunction to the believers to war against non-believers:2
30
'O ye who believe! Shall I guide you to a gainful trade which will save you from painful punishment? Believe in Allah and His Apostle and carry on warfare (jihad) in the path of Allah with your possessions and your persons. That is better for you. If ye have knowledge, He will forgive your sins, and will place you in the Gardens beneath which the streams flow, and in fine houses in the Gardens of Eden: that is the great gain.' M. Khadduri, War and Peace in the Law of Islam 55—56 (1955).
31
The Sale edition of the Koran, which first appeared in England in 1734, gives the following translation at 410—411 (9th ed. 1923):
32
'Thus God propoundeth unto men their examples. When ye encounter the unbelievers, strike off their heads, until ye have made a great slaughter among them; and bind them in bonds; and either give them a free dismission afterwards, or exact a ransom; until the war shall have laid down its arms. This shall ye do. Verily if God pleased he could take vengeance on them, without your assistance; but he commandeth you to fight his battles, that he may prove the one of you by the other. And as to those who fight in defence of God's true religion, God will not suffer their works to perish: he will guide them, and will dispose their heart aright; and he will lead them into paradise, of which he hath told them. O true believers, if ye assist God, by fighting for his religion, he will assist you against your enemies; and will set your feet fast. * * *'
33
War is not the exclusive type of jihad; there is action by the believer's heart, by his tongue, by his hands, as well as by the sword. War and Peace in the Law of Islam 56. As respects the military aspects it is written:
34
'The jihad, in other words, is a sanction against polytheism and must be suffered by all non-Muslims who reject Islam, or, in the case of the dhimmis (Scripturaries), refuse to pay the poll tax. The jihad, therefore, may be defined as the litigation between Islam and polytheism; it is also a form of punishment to be inflicted upon Islam's enemies and the renegades from the faith. Thus in Islam, as in Western Christendom, the jihad is the bellum justum.' Id., 59.
35
The jihad in the Moslem's counterpart of the 'just' war as it has been known in the West.3 Neither Clay nor Negre should be subject to punishment because he will not renounce the 'truth' of the teaching of his respective church that wars indeed may exist which are just wars in which a Moslem or Catholic has a respective duty to participate.
36
What Clay's testimony adds up to is that he believes only in war as sanctioned by the Koran, that is to say, a religious war against nonbelievers. All other wars are unjust.
37
That is a matter of belief, of conscience, of religious principle. Both Clay and Negre were 'by reason of religious training and belief' conscientiously opposed to participation in war of the character proscribed by their respective religions. That belief is a matter of conscience protected by the First Amendment which Congress has no power to qualify or dilute as it did in § 6(j) of the Military Selective Service Act of 1967, 50 U.S.C.App. § 456(j) (1964 ed., Supp. V) when it restricted the exemption to those 'conscientiously opposed to participation in war in any form.' For the reasons I stated in Negre and in Gillette v. United States, 401 U.S. 437, 463 and 470, 91 S.Ct. 828, 843 and 846, 28 L.Ed.2d 168, that construction puts Clay in a class honored by the First Amendment, even though those schooled in a different conception of 'just' wars may find it quite irrational.
38
I would reverse the judgment below.
39
Mr. Justice HARLAN, concurring in the result.
40
I concur in the result on the following ground. The Department of Justice advice letter was at least susceptible of the reading that petitioner's proof of sincerity was insufficient as a matter of law because his conscientious objector claim had not been timely asserted. This would have been erroneous advice had the Department's letter been so read. Since the Appeals Board might have acted on such an interpretation of the letter, reversal is required under Sicurella v. United States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436 (1955).
1
The original judgment of affirmance, 397 F.2d 901, was set aside by this Court on a ground wholly unrelated to the issues now before us, sub nom. Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297. Upon remand, the Court of Appeals again affirmed the conviction. 430 F.2d 165.
2
The hearing officer was Judge Lawrence Grauman, who had served on a Kentucky circuit court for some 25 years.
3
Applicable regulations, 32 CFR § 1626.25 (1967 ed.), did not require that the hearing officer's report be transmitted to the Appeal Board, and the Government declined to disclose it to the petitioner. The statements in text are taken from the description of that report in the letter of advice from the Department of Justice, recommending denial of the petitioner's claim.
4
Brief for the United States 12.
5
'We do not here seek to support the denial of petitioner's claim on the ground of insincerity * * *.' Id., at 33. United States, 33.
1
As to the Court's analysis of Sicurella v. United States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436, and its application of Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, little need be said. The Court is, of course, quite accurate if opposition to 'war in any form' as explained in Gillette v. United States, and Negre v. Larsen, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168, is the law. But in my view the ruling in Gillette and Negre was unconstitutional. Hence of the three possible grounds on which the Board denied conscientious objector status, none was valid.
2
Koran 61:10—13.
'War, then, is here an integral part of the legal system; for in accordance with the doctrine of the jihad, which is recognized as 'the peak of religion,' the Islamic commonwealth must be expanding, relentlessly, like a caravan continuously on the move, until it becomes coterminous with humanity, at which time war will have been transposed into universal peace.' A. Bozeman, The Future of Law in a Multicultural World 81—82 (1971).
3
The last attempt to use the jihad as a significant force was made in 1914 by the Ottoman sultan; but it failed and the jihad has fallen into disuse. See 1 A. Toynbee, Survey of International Affairs, 1925, p. 43 et seq. (1927); 8 Encyclopaedia of the Social Sciences 401—403 (1932).
| 23
|
403 U.S. 711
91 S.Ct. 2285
29 L.Ed.2d 820
Charles HUNTER et al.v.TENNESSEE.
No. 5085.
Supreme Court of the United States
June 28, 1971*
On petition for writ of certiorari to the Supreme Court of Tennessee, Western Division.
PER CURIAM.
1
The motions for leave to proceed in forma pauperis and the petitions for writs of certiorari are granted.
2
After a joint trial in the state courts of Tennessee, petitioners were convicted of rape and sentenced to death. While their appeals were pending in the Tennessee Supreme Court, this Court announced its decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Petitioners sought to supplement their bills of exceptions to raise issues under that decision, but they were precluded from doing so by the provisions of former Tennessee Code Annotated § 27-111 (1955), which as it then stood prohibited the filing of bills of exceptions more than 90 days after judgment. The Tennessee Supreme Court therefore affirmed petitioners' convictions and sentences without considering the possible effect of Witherspoon. 222 Tenn. 672, 440 S.W.2d 1 (1969). While the petitions for certiorari were pending in this Court, the Tennessee Legislature amended § 27-111 to authorize the state appellate courts to order the filing of bills of exceptions in criminal cases at any time, for good cause shown. Tenn. Code Ann. § 27-111 (Supp. 1970). With matters in this posture, we believe that sound judicial administration requires us to vacate the judgments below and remand the cases to the Tennessee Supreme Court so as to afford petitioners an opportunity to apply to that court under the new Tennessee statute for leave to supplement their bills of exceptions. In so doing we, of course, intimate no view on the merits of petitioners' contentions or as to the applicability of the new Tennessee statute to these cases.
3
It is so ordered.
4
Mr. Justice BLACK dissents.
*
Together with No. 5098, Ulous Harris v. Tennessee; No. 5101, Garfield Houston et al. v. Tennessee; and No. 5103, Charles Hunter et al. v. Tennessee.
| 01
|
403 U.S. 602
91 S.Ct. 2105
29 L.Ed.2d 745
Alton J. LEMON et al., Appellants,v.David H. KURTZMAN, as Superintendent as Public Instruction of the Commonwealth of Pennsylvania, et al. John R. EARLEY et al., Appellants, v. John DiCENSO et al. William P. ROBINSON, Jr., Commissioner of Education of the State of Rhode Island, et al., Appellants, v. John DiCENSO et al.
Nos. 89, 569, 570.
Argued March 3, 1971.
Decided June 28, 1971.
Syllabus
Rhode Island's 1969 Salary Supplement Act provides for a 15% salary supplement to be paid to teachers in nonpublic schools at which the average perpupil expenditure on secular education is below the average in public schools. Eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion. A three-judge court found that about 25% of the State's elementary students attended nonpublic schools, about 95% of whom attended Roman Catholic affiliated schools, and that to date about 250 teachers at Roman Catholic schools are the sole beneficiaries under the Act. The court found that the parochial school system was 'an integral part of the religious mission of the Catholic Church,' and held that the Act fostered 'excessive entanglement' between government and religion, thus violating the Establishment Clause. Pennsylvania's Nonpublic Elementary and Secondary Education Act, passed in 1968, authorizes the state Superintendent of Public Instruction to 'purpose' certain 'secular educational services' from nonpublic schools, directly reimbursing those schools solely for teachers' salaries, textbooks, and instructional materials. Reimbursement is restricted to courses in specific secular subjects, the textbooks and materials must be approved by the Superintendent, and no payment is to be made for any course containing 'any subject matter expressing religious teaching, or the morals or forms of worship of any sect.' Contracts were made with schools that have more than 20% of all the students in the State, most of which were affiliated with the Roman Catholic Church. The complaint challenging the constitutionality of the Act alleged that the church-affiliated schools are controlled by religious organizations, have the purpose of propagating and promoting a particular religious faith, and conduct their operations to fulfill that purpose. A three-judge court granted the State's motion to dismiss the complaint for failure to state a claim for relief, finding no violation of the Establishment or Free Exercise Clause. Held: Both statutes are unconstitutional under the Religion Clauses of the First Amendment, as the cumulative impact of the entire relationship arising under the statutes involves excessive entanglement between government and religion. Pp. 611—625.
(a) The entanglement in the Rhode Island program arises because of the religious activity, and purpose of the church-affiliated schools, especially with respect to children of impressionable age in the primary grades, and the dangers that a teacher under religious control and discipline poses to the separation of religious from purely secular aspect of elementary education in such schools. These factors require continuing state surveillance to ensure that the statutory restrictions are obeyed and the First Amendment otherwise respected. Furthermore, under the Act the government must inspect school records to determine what part of the expenditures is attributable to secular education as opposed to religious activity, in the event a nonpublic school's expenditures per pupil exceed the comparable figures for public schools. Pp. 615—620.
(b) The entanglement in the Pennsylvania program also arises from the restrictions and surveillance necessary to ensure that teachers play a strictly nonideological role and the state supervision of nonpublic school accounting procedures required to establish the cost of secular as distinguished from religious education. In addition, the Pennsylvania statute has the further defect of providing continuing financial aid directly to the church-related schools. Historically governmental control and surveillance measures tend to follow cash grant programs, and here the government's post-audit power to inspect the financial records of church-related schools creates an intimate and continuing relationship between church and state. Pp. 620—622.
(c) Political division along religious lines was one of the evils at which the First Amendment aimed, and in these programs, where successive and probably permanent annual appropriations that benefit relatively few religious groups are involved, political fragmentation and divisiveness on religious lines are likely to be intensified. Pp. 622—624.
(d) Unlike the tax exemption for places of religious worship, upheld in Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697, which was based on a practice of 200 years, these innovative programs have self-perpetuating and self-expanding propensities which provide a warning signal against entanglement between government and religion. Pp. 624—625.
No. 89, 310 F.Supp. 35, reversed and remanded; Nos. 569 and 570, 316 F.Supp. 112, affirmed.
Henry W. Sawyer, III, Philadelphia, Pa., for appellants.
J. Shane Creamer, Philadelphia, Pa., for appellees Kurtzman and Sloan.
William B. Ball, Harrisburg, Pa., for appellee Schools.
Charles F. Cottam, Providence, R.I., for appellants Robinson and others.
Edward Bennett Williams, Washington, D.C., for appellants Earley and others.
Leo Pfeffer, New York City, and Milton Stanzler, Providence, R.I., for appellees Joan DiCenso and others.
[Amicus Curiae Information from pages 605-606 intentionally omitted]
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
These two appeals raise questions as to Pennsylvania and Rhode Island statutes providing state aid to church-related elementary and secondary schools. Both statutes are challenged as violative of the Establishment and Free Exercise Clauses of the First Amendment and the Due Process Clause of the Fourteenth Amendment.
2
Pennsylvania has adopted a statutory program that provides financial support to nonpublic elementary and secondary schools by way of reimbursement for the cost of teachers' salaries, textbooks, and instructional materials in specified secular subjects. Rhode Island has adopted a statute under which the State pays directly to teachers in nonpublic elementary schools a supplement of 15% of their annual salary. Under each statute state aid has been given to church-related educational institutions. We hold that both statutes are unconstitutional.
3
* The Rhode Island Statute
4
The Rhode Island Salary Supplement Act1 was enacted in 1969. It rests on the legislative finding that the quality of education available in nonpublic elementary schools has been jeopardized by the rapidly rising salaries needed to attract competent and dedicated teachers. The Act authorizes state officials to supplement the salaries of teachers of secular subjects in nonpublic elementary schools by paying directly to a teacher an amount not in excess of 15% of his current annual salary. As supplemented, however, a nonpublic school teacher's salary cannot exceed the maximum paid to teachers in the State's public schools, and the recipient must be certified by the state board of education in substantially the same manner as public school teachers.
5
In order to be eligible for the Rhode Island salary supplement, the recipient must teach in a nonpublic school at which the average per-pupil expenditure on secular education is less than the average in the State's public schools during a specified period. Appellant State Commissioner of Education also requires eligible schools to submit financial data. If this information indicates a per-pupil expenditure in excess of the statutory limitation, the records of the school in question must be examined in order to assess how much of the expenditure is attributable to secular education and how much to religious activity.2
6
The Act also requires that teachers eligible for salary supplements must teach only those subjects that are offered in the State's public schools. They must use 'only teaching materials which are used in the public schools.' Finally, any teacher applying for a salary supplement must first agree in writing 'not to teach a course in religion for so long as or during such time as he or she receives any salary supplements' under the Act.
7
Appellees are citizens and taxpayers of Rhode Island. They brought this suit to have the Rhode Island Salary Supplement Act declared unconstitutional and its operation enjoined on the ground that it violates the Establishment and Free Exercise Clauses of the First Amendment. Appellants are state officials charged with administration of the Act, teachers eligible for salary supplements under the Act, and parents of children in church-related elementary schools whose teachers would receive state salary assistance.
8
A three-judge federal court was convened pursuant to 28 U.S.C. §§ 2281, 2284. It found that Rhode Island's nonpublic elementary schools accommodated approximately 25% of the State's pupils. About 95% of these pupils attended schools affiliated with the Roman Catholic church. To date some 250 teachers have applied for benefits under the Act. All of them are employed by Roman Catholic schools.
9
The court held a hearing at which extensive evidence was introduced concerning the nature of the secular instruction offered in the Roman Catholic schools whose teachers would be eligible for salary assistance under the Act. Although the court found that concern for religious values does not necessarily affect the content of secular subjects, it also found that the parochial school system was 'an integral part of the religious mission of the Catholic Church.'
10
The District Court concluded that the Act violated the Establishment Clause, holding that it fostered 'excessive entanglement' between government and religion. In addition two judges thought that the Act had the impermissible effect of giving 'significant aid to a religious enterprise.' 316 F.Supp. 112. We affirm.
The Pennsylvania Statute
11
Pennsylvania has adopted a program that has some but not all of the features of the Rhode Island program. The Pennsylvania Nonpublic Elementary and Secondary Education Act3 was passed in 1968 in response to a crisis that the Pennsylvania Legislature found existed in the State's nonpublic schools due to rapidly rising costs. The statute affirmatively reflects the legislative conclusion that the State's educational goals could appropriately be fulfilled by government support of 'those purely secular educational objectives achieved through nonpublic education * * *.'
12
The statute authorizes appellee state Superintendent of Public Instruction to 'purchase' specified 'secular educational services' from nonpublic schools. Under the 'contracts' authorized by the statute, the State directly reimburses nonpublic schools solely for their actual expenditures for teachers' salaries, textbooks, and instructional materials. A school seeking reimbursement must maintain prescribed accounting procedures that identify the 'separate' cost of the 'secular educational service.' These accounts are subject to state audit. The funds for this program were originally derived from a new tax on horse and harness racing, but the Act is now financed by a portion of the state tax on cigarettes.
13
There are several significant statutory restrictions on state aid. Reimbursement is limited to courses 'presented in the curricula of the public schools.' It is further limited 'solely' to courses in the following 'secular' subjects: mathematics, modern foreign languages,4 physical science, and physical education. Textbooks and instructional materials included in the program must be approved by the state Superintendent of Public Instruction. Finally, the statute prohibits reimbursement for any course that contains 'any subject matter expressing religious teaching, or the morals or forms of worship of any sect.'
14
The Act went into effect on July 1, 1968, and the first reimbursement payments to schools were made on September 2, 1969. It appears that some $5 million has been expended annually under the Act. The State has now entered into contracts with some 1,181 nonpublic elementary and secondary schools with a student population of some 535,215 pupils—more than 20% of the total number of students in the State. More than 96% of these pupils attend church-related schools, and most of these schools are affiliated with the Roman Catholic church.
15
Appellants brought this action in the District Court to challenge the constitutionality of the Pennsylvania statute. The organizational plaintiffs-appellants are associations of persons resident in Pennsylvania declaring belief in the separation of church and state; individual plaintiffs-appellants are citizens and taxpayers of Pennsylvania. Appellant Lemon, in addition to being a citizen and a taxpayer, is a parent of a child attending public school in Pennsylvania. Lemon also alleges that he purchased a ticket at a race track and thus had paid the specific tax that supports the expenditures under the Act. Appellees are state officials who have the responsibility for administering the Act. In addition seven church-related schools are defendants-appellees.
16
A three-judge federal court was convened pursuant to 28 U.S.C. §§ 2281, 2284. The District Court held that the individual plaintiffs-appellants had standing to challenge the Act, 310 F.Supp. 42. The organizational plaintiffs-appellants were denied standing under Flast v. Cohen, 392 U.S. 83, 99, 101, 88 S.Ct. 1942, 1952, 1953, 20 L.Ed.2d 947 (1968).
17
The court granted appellees' motion to dismiss the complaint for failure to state a claim for relief.5 310 F.Supp. 35. It held that the Act violated neither the Establishment nor the Free Exercise Clause, Chief Judge Hastie dissenting. We reverse.
II
18
In Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), this Court upheld a state statute that reimbursed the parents of parochial school children for bus transportation expenses. There Mr. Justice Black, writing for the majority, suggested that the decision carried to 'the verge' of forbidden territory under the Religion Clauses. Id., at 16, 67 S.Ct., at 511. Candor compels acknowledgment, moreover, that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.
19
The language of the Religion Clauses of the First Amendment is at best opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead they commanded that there should be 'no law respecting an establishment of religion.' A law may be one 'respecting' the forbidden objective while falling short of its total realization. A law 'respecting' the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion but nevertheless be one 'respecting' that end in the sense of being a step that could lead to such establishment and hence offend the First Amendment.
20
In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: 'sponsorship, financial support, and active involvement of the sovereign in religious activity.' Walz v. Tax Commission, 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970).
21
Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243, 88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060 (1968); finally, the statute must not foster 'an excessive government entanglement with religion.' Walz, supra, at 674, 90 S.Ct., at 1414.
22
Inquiry into the legislative purposes of the Pennsylvania and Rhode Island statutes affords no basis for a conclusion that the legislative intent was to advance religion. On the contrary, the statutes themselves clearly state that they are intended to enhance the quality of the secular education in all schools covered by the compulsory attendance laws. There is no reason to believe the legislatures meant anything else. A State always has a legitimate concern for maintaining minimum standards in all schools it allows to operate. As in Allen, we find nothing here that undermines the stated legislative intent; it must therefore be accorded appropriate deference.
23
In Allen the Court acknowledged that secular and religious teachings were not necessarily so intertwined that secular textbooks furnished to students by the State were in fact instrumental in the teaching of religion. 392 U.S., at 248, 88 S.Ct., at 1929. The legislatures of Rhode Island and Pennsylvania have concluded that secular and religious education are identifiable and separable. In the abstract we have no quarrel with this conclusion.
24
The two legislatures, however, have also recognized that church-related elementary and secondary schools have a significant religious mission and that a substantial portion of their activities is religiously oriented. They have therefore sought to create statutory restrictions designed to guarantee the separation between secular and religious educational functions and to ensure that State financial aid supports only the former. All these provisions are precautions taken in candid recognition that these programs approached, even if they did not intrude upon, the forbidden areas under the Religion Clauses. We need not decide whether these legislative precautions restrict the principal or primary effect of the programs to the point where they do not offend the Religion Clauses, for we conclude that the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion.
III
25
In Walz v. Tax Commission, supra, the Court upheld state tax exemptions for real property owned by religious organizations and used for religious worship. That holding, however, tended to confine rather than enlarge the area of permissible state involvement with religious institutions by calling for close scrutiny of the degree of entanglement involved in the relationship. The objective is to prevent, as far as possible, the intrusion of either into the precincts of the other.
26
Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable. Zorach v. Clauson, 343 U.S. 306, 312, 72 S.Ct. 679, 683, 96 L.Ed. 954 (1952); Sherbert v. Verner, 374 U.S. 398, 422, 83 S.Ct. 1790, 1803, 10 L.Ed.2d 965 (1963) (Harlan, J., dissenting). Fire inspections, building and zoning regulations, and state requirements under compulsory school-attendance laws are examples of necessary and permissible contacts. Indeed, under the statutory exemption before us in Walz, the State had a continuing burden to ascertain that the exempt property was in fact being used for religious worship. Judicial caveats against entanglement must recognize that the line of separation, far from being a 'wall,' is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.
27
This is not to suggest, however, that we are to engage in a legalistic minuet in which precise rules and forms must govern. A true minuet is a matter of pure form and style, the observance of which is itself the substantive end. Here we examine the form of the relationship for the light that it casts on the substance.
28
In order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority. Mr. Justice Harlan, in a separate opinion in Walz, supra, echoed the classic warning as to 'programs, whose very nature is apt to entangle the state in details of administration. * * *' Id., at 695, 90 S.Ct., at 1425. Here we find that both statutes foster an impermissible degree of entanglement.
29
(a) Rhode Island program
30
The District Court made extensive findings on the grave potential for excessive entanglement that inheres in the religious character and purpose of the Roman Catholic elementary schools of Rhode Island, to date the sole beneficiaries of the Rhode Island Salary Supplement Act.
31
The church schools involved in the program are located close to parish churches. This understandably permits convenient access for religious exercises since instruction in faith and morals is part of the total educational process. The school buildings contain identifying religious symbols such as crosses on the exterior and crucifixes, and religious paintings and statutes either in the classrooms or hallways. Although only approximately 30 minutes a day are devoted to direct religious instruction, there are religiously oriented extracurricular activities. Approximately two-thirds of the teachers in these schools are nuns of various religious orders. Their dedicated efforts provide an atmosphere in which religious instruction and religious vocations are natural and proper parts of life in such schools. Indeed, as the District Court found, the role of teaching nuns in enhancing the religious atmosphere has led the parochial school 616m
32
au thorities to attempt to maintain a one-to-one ratio between nuns and lay teachers in all schools rather than to permit some to be staffed almost entirely by lay teachers.
33
On the basis of these findings the District Court concluded that the parochial schools constituted 'an integral part of the religious mission of the Catholic Church.' The various characteristics of the schools make them 'a powerful vehicle for transmitting the Catholic faith to the next generation.' This process of inculcating religious doctrine is, of course, enhanced by the impressionable age of the pupils, in primary schools particularly. In short, parochial schools involve substantial religious activity and purpose.6
34
The substantial religious character of these church-related schools gives rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid. Although the District Court found that concern for religious values did not inevitably or necessarily intrude into the content of secular subjects, the considerable religious activities of these schools led the legislature to provide for careful governmental controls and surveillance by state authorities in order to ensure that state aid supports only secular education.
35
The dangers and corresponding entanglements are enhanced by the particular form of aid that the Rhode Island Act provides. Our decisions from Everson to Allen have permitted the States to provide church-related schools with secular, neutral, or nonideological services, facilities, or materials. Bus transportation, school lunches, public health services, and secular textbooks supplied in common to all students were not thought to offend the Establishment Clause. We note that the dissenters in Allen seemed chiefly concerned with the pragmatic difficulties involved in ensuring the truly secular content of the textbooks provided at state expense.
36
In Allen the Court refused to make assumptions, on a meager record, about the religious content of the textbooks that the State would be asked to provide. We cannot, however, refuse here to recognize that teachers have a substantially different ideological character from books. In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook's content is ascertainable, but a teacher's handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of precollege education. The conflict of functions inheres in the situation.
37
In our view the record shows these dangers are present to a substantial degree. The Rhode Island Roman Catholic elementary schools are under the general supervision of the Bishop of Providence and his appointed representative, the Diocesan Superintendent of Schools. In most cases, each individual parish, however, assumes the ultimate financial responsibility for the school, with the parish priest authorizing the allocation of parish funds. With only two exceptions, school principals are nuns appointed either by the Superintendent or the Mother Provincial of the order whose members staff the school. By 1969 lay teachers constituted more than a third of all teachers in the parochial elementary schools, and their number is growing. They are first interviewed by the superintendent's office and then by the school principal. The contracts are signed by the parish priest, and he retains some discretion in negotiating salary levels. Religious authority necessarily pervades the school system.
38
The schools are governed by the standards set forth in a 'Handbook of School Regulations,' which has the force of synodal law in the diocese. It emphasizes the role and importance of the teacher in parochial schools: 'The prime factor for the success or the failure of the school is the spirit and personality, as well as the professional competency, of the teacher * * *.' The Handbook also states that: 'Religious formation is not confined to formal courses; nor is it restricted to a single subject area.' Finally, the Handbook advises teachers to stimulate interest in religious vocations and missionary work. Given the mission of the church school, these instructions are consistent and logical.
39
Several teachers testified, however, that they did not inject religion into their secular classes. And the District Court found that religious values did not necessarily affect the content of the secular instruction. But what has been recounted suggests the potential if not actual hazards of this form of state aid. The teacher is employed by a religious organization, subject to the direction and discipline of religious authorities, and works in a system dedicated to rearing children in a particular faith. These controls are not lessened by the fact that most of the lay teachers are of the Catholic faith. Inevitably some of a teacher's responsibilities hover on the border between secular and religious orientation.
40
We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment. We simply recognize that a dedicated religious person, teaching in a school affiliated with his or her faith and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously neutral. Doctrines and faith are not inculcated or advanced by neutrals. With the best of intentions such a teacher would find it hard to make a total separation between secular teaching and religious doctrine. What would appear to some to be essential to good citizenship might well for others border on or constitute instruction in religion. Further difficulties are inherent in the combination of religious discipline and the possibility of disagreement between teacher and religious authorities over the meaning of the statutory restrictions.
41
We do not assume, however, that parochial school teachers will be unsuccessful in their attempts to segregate their religious beliefs from their secular educational responsibilities. But the potential for impermissible fostering of religion is present. The Rhode Island Legislature has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion—indeed the State here has undertaken to do so. To ensure that no trespass occurs, the State has therefore carefully conditioned its aid with pervasive restrictions. An eligible recipient must teach only those courses that are offered in the public schools and use only those texts and materials that are found in the public schools. In addition the teacher must not engage in teaching any course in religion.
42
A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church.
43
There is another area of entanglement in the Rhode Island program that gives concern. The statute excludes teachers employed by nonpublic schools whose average per-pupil expenditures on secular education equal or exceed the comparable figures for public schools. In the event that the total expenditures of an otherwise eligible school exceed this norm, the program requires the government to examine the school's records in order to determine how much of the total expenditures is attributable to secular education and how much to religious activity. This kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids. It is a relationship pregnant with dangers of excessive government direction of church schools and hence of churches. The Court noted 'the hazards of government supporting churches' in Walz v. Tax Commission, supra, 397 U.S., at 675, 90 S.Ct., at 1414, and we cannot ignore here the danger that pervasive modern governmental power will ultimately intrude on religion and thus conflict with the Religion Clauses.
44
(b) Pennsylvania program
45
The Pennsylvania statute also provides state aid to church-related schools for teachers' salaries. The complaint describes an educational system that is very similar to the one existing in Rhode Island. According to the allegations, the church-related elementary and secondary schools are controlled by religious organizations, have the purpose of propagating and promoting a particular religious faith, and conduct their operations to fulfill that purpose. Since this complaint was dismissed for failure to state a claim for relief, we must accept these allegations as true for purposes of our review.
46
As we noted earlier, the very restrictions and surveillance necessary to ensure that teachers play a strictly non-ideological role give rise to entanglements between church and state. The Pennsylvania statute, like that of Rhode Island, fosters this kind of relationship. Reimbursement is not only limited to courses offered in the public schools and materials approved by state officials, but the statute excludes 'any subject matter expressing religious teaching, or the morals or forms of worship of any sect.' In addition, schools seeking reimbursement must maintain accounting procedures that require the State to establish the cost of the secular as distinguished from the religious instruction.
47
The Pennsylvania statute, moreover, has the further defect of providing state financial aid directly to the church-related schools. This factor distinguishes both Everson and Allen, for in both those cases the Court was careful to point out that state aid was provided to the student and his parents—not to the church-related school. Board of Education v. Allen, supra, 392 U.S., at 243—244, 88 S.Ct., at 1926—1927; Everson v. Board of Education, supra, 330 U.S., at 18, 67 S.Ct., at 512. In Walz v. Tax Commission, supra, 397 U.S., at 675, 90 S.Ct., at 1414, the Court warned of the dangers of direct payments to religious organizations:
48
'Obviously a direct money subsidy would be a relationship pregnant with involvement and, as with most governmental grant programs, could encompass sustained and detailed administrative relationships for enforcement of statutory or administrative standards * * *.'
49
The history of government grants of a continuing cash subsidy indicates that such programs have almost always been accompanied by varying measures of control and surveillance. The government cash grants before us now provide no basis for predicting that comprehensive measures of surveillance and controls will not follow. In particular the government's post-audit power to inspect and evaluate a church-related school's financial records and to determine which expenditures are religious and which are secular creates an intimate and continuing relationship between church and state.
IV
50
A broader base of entanglement of yet a different character is presented by the devisive political potential of these state programs. In a community where such a large number of pupils are served by church-related schools, it can be assumed that state assistance will entail considerable political activity. Partisans of parochial schools, understandably concerned with rising costs and sincerely dedicated to both the religious and secular educational missions of their schools, will inevitably champion this cause and promote political action to achieve their goals. Those who oppose state aid, whether for constitutional, religious, or fiscal reasons, will inevitably respond and employ all of the usual political campaign techniques to prevail. Candidates will be forced to declare and voters to choose. It would be unrealistic to ignore the fact that many people confronted with issues of this kind will find their votes aligned with their faith.
51
Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. Freund, Comment, Public Aid to Parochial Schools, 82 Harv.L.Rev. 1680, 1692 (1969). The potential divisiveness of such conflict is a threat to the normal political process. Walz v. Tax Commission, supra, at 695, 90 S.Ct., at 1424. (separate opinion of Harlan, J.). See also Board of Education v. Allen, 392 U.S., at 249, 88 S.Ct., at 1929 (Harlan, J., concurring); Abington School District v. Schempp, 374 U.S. 203, 307, 83 S.Ct. 1560, 1616, 10 L.Ed.2d 844 (1963) (Goldberg, J., concurring). To have States or communities divide on the issues presented by state aid to parochial schools would tend to confuse and obscure other issues of great urgency. We have an expanding array of vexing issues, local and national, domestic and international, to debate and divide on. It conflicts with our whole history and tradition to permit questions of the Religion Clauses to assume such importance in our legislatures and in our elections that they could divert attention from the myriad issues and problems that confront every level of government. The highways of church and state relationships are not likely to be one-way streets, and the Constitution's authors sought to protect religious worship from the pervasive power of government. The history of many countries attests to the hazards of religion's intruding into the political arena or of political power intruding into the legitimate and free exercise of religious belief.
52
Of course, as the Court noted in Walz, '(a)dherents of particular faiths and individual churches frequently take strong positions on public issues.' Walz v. Tax Commission, supra, at 670, 90 S.Ct., at 1412. We could not expect otherwise, for religious values pervade the fabric of our national life. But in Walz we dealt with a status under state tax laws for the benefit of all religious groups. Here we are confronted with successive and very likely permanent annual appropriations that benefit relatively few religious groups. Political fragmentation and divisiveness on religious lines are thus likely to be intensified.
53
The potential for political divisiveness related to religious belief and practice is aggravated in these two statutory programs by the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow. The Rhode Island District Court found that the parochial school system's 'monumental and deepening financial crisis' would 'inescapably' require larger annual appropriations subsidizing greater percentages of the salaries of lay teachers. Although no facts have been developed in this respect in the Pennsylvania case, it appears that such pressures for expanding aid have already required the state legislature to include a portion of the state revenues from cigarette taxes in the program.
V
54
In Walz it was argued that a tax exemption for places of religious worship would prove to be the first step in an inevitable progression leading to the establishment of state churches and state religion. That claim could not stand up against more than 200 years of virtually universal practice imbedded in our colonial experience and continuing into the present.
55
The progression argument, however, is more persuasive here. We have no long history of state aid to church-related educational institutions comparable to 200 years of tax exemption for churches. Indeed, the state programs before us today represent something of an innovation. We have already noted that modern governmental programs have self-perpetuating and self-expanding propensities. These internal pressures are only enhanced when the schemes involve institutions whose legitimate needs are growing and whose interests have substantial political support. Nor can we fail to see that in constitutional adjudication some steps, which when taken were thought to approach 'the verge,' have become the platform for yet further steps. A certain momentum develops in constitutional theory and it can be a 'downhill thrust' easily set in motion but difficult to retard or stop. Development by momentum is not invariably bad; indeed, it is the way the common law has grown, but it is a force to be recognized and reckoned with. The dangers are increased by the difficulty of perceiving in advance exactly where the 'verge' of the precipice lies. As well as constituting an independent evil against which the Religion Clauses were intended to protect, involvement or entanglement between government and religion serves as a warning signal.
56
Finally, nothing we have said can be construed to disparage the role of church-related elementary and secondary schools in our national life. Their contribution has been and is enormous. Nor do we ignore their economic plight in a period of rising costs and expanding need. Taxpayers generally have been spared vast sums by the maintenance of these educational institutions by religious organizations, largely by the gifts of faithful adherents.
57
The merit and benefits of these schools, however, are not the issue before us in these cases. The sole question is whether state aid to these schools can be squared with the dictates of the Religion Clauses. Under our system the choice has been made that government is to be entirely excluded from the area of religious instruction and churches excluded from the affairs of government. The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that while some involvement and entanglement are inevitable, lines must be drawn.
58
The judgment of the Rhode Island District Court in No. 569 and No. 570 is affirmed. The judgment of the Pennsylvania District Court in No. 89 is reversed, and the case is remanded for further proceedings consistent with this opinion.
59
Mr. Justice MARSHALL took no part in the consideration or decision of No. 89.
60
Mr. Justice DOUGLAS, whom Mr. Justice BLACK joins, concurring.
61
While I join the opinion of the Court. I have expressed at some length my views as to the rationale of today's decision in these three cases.
62
They involve two different statutory schemes for providing aid to parochial schools. Lemon deals with the Pennsylvania Nonpublic Elementary and Secondary Education Act, Laws 1968, Act No. 109. By its terms the Pennsylvania Act allows the State to provide funds directly to private schools to purchase 'secular educational service' such as teachers' salaries, textbooks, and educational materials. Pa.Stat.Ann., Tit. 24, § 5604 (Supp.1971). Reimbursement for these services may be made only for courses in mathematics, modern foreign languages, physical science, and physical education. Reimbursement is prohibited for any course containing subject matter 'expressing religious teaching, or the morals or forms of worship of any sect.' § 5603 (Supp.1971). To qualify, a school must demonstrate that its pupils achieve a satisfactory level of performance in standardized tests approved by the Superintendent of Public Instruction, and that the textbooks and other instructional materials used in these courses have been approved by the Superintendent of Public Instruction. The three-judge District Court below upheld this statute against the argument that it violates the Establishment Clause. We noted probable jurisdiction. 397 U.S. 1034, 91 S.Ct. 1354, 25 L.Ed.2d 646.
63
The DiCenso cases involve the Rhode Island Salary Supplement Act, Laws 1969, c. 246. The Rhode Island Act authorizes supplementing the salaries of teachers of secular subjects in nonprofit private schools. The supplement is not more than 15% of an eligible teacher's current salary but cannot exceed the maximum salary paid to teachers in the State's public schools. To be eligible a teacher must teach only those subjects offered in public schools in the State, must be certified in substantially the same manner as teachers in public schools, and may use only teaching materials which are used in the public schools. Also the teacher must agree in writing 'not to teach a course in religion for so long as or during such time as he or she receives any salary supplements.' R.I.Gen.Laws Ann. § 16—51—3 (Supp.1970). The schools themselves must not be operated for profit, must meet state educational standards, and the annual per-student expenditure for secular education must not equal or exceed 'the average annual per student expenditure in the public schools in the state at the same grade level in the second preceding fiscal year.' § 16—51—2 (Supp. 1970). While the Rhode Island Act, unlike the Pennsylvania Act, provides for direct payments to the teacher, the three-judge District Court below found it unconstitutional because it 'results in excessive government entanglement with religion.' Probable jurisdiction was noted and the cases were set for oral argument with the other school cases. 400 U.S. 901, 91 S.Ct. 142, 27 L.Ed.2d 137.
64
In Walz v. Tax Commission, 397 U.S. 664, 674, 90 S.Ct. 1409, 1414, 25 L.Ed.2d 697, the Court in approving a tax exemption for church property said:
65
'Determining that the legislative purpose of tax exemption is not aimed at establishing, sponsoring, or supporting religion does not end the inquiry, however. We must also be sure that the end result—the effect—is not an excessive government entanglement with religion.'
66
There is in my view such an entanglement here. The surveillance or supervision of the States needed to police grants involved in these three cases, if performed, puts a public investigator into every classroom and entails a pervasive monitoring of these church agencies by the secular authorities. Yet if that surveillance or supervision does not occur the zeal of religious proselytizers promises to carry the day and make a shambles of the Establishment Clause. Moreover, when taxpayers of many faiths are required to contribute money for the propagation of one faith, the Free Exercise Clause is infringed.
67
The analysis of the constitutional objections to these two state systems of grants to parochial or sectarian schools must start with the admitted and obvious fact that the raison d'e tre of parochial schools is the propagation of a religious faith. They also teach secular subjects; but they came into existence in this country because Protestant groups were perverting the public schools by using them to propagate their faith. The Catholics naturally rebelled. If schools were to be used to propagate a particular creed or religion, then Catholic ideals should also be served. Hence the advent of parochial schools.
68
By 1840 there were 200 Catholic parish schools in the United States.1 By 1964 there were 60 times as many.2 Today 57% of the 9,000 Catholic parishes in the country have their church schools. '(E)very diocesan chancery has its school department, and it enjoys a primacy of status.'3 The parish schools indeed consume 40% to 65% of the parish's total income.4 The parish is so 'school centered' that '(t)he school almost becomes the very reason for being.'5
69
Early in the 19th century the Protestants obtained control of the New York school system and used it to promote reading and teaching of the Scriptures as revealed in the King James version of the Bible.6 The contests between Protestants and Catholics, often erupting into violence including the burning of Catholic churches, are a twice-told tale;7 the Know-Nothing Party, which included in its platform 'daily Bible reading in the schools,'8 carried three States in 1854—Massachusetts, Pennsylvania, and Delaware.9 Parochial schools grew, but not Catholic schools alone. Other dissenting sects established their own schools—Lutherans, Methodists, Presbyterians, and others.10 But the major force in shaping the pattern of education in this country was the conflict between Protestants and Catholics. The Catholics logically argued that a public school was sectarian when it taught the King James version of the Bible. They therefore wanted it removed from the public schools; and in time they tried to get public funds for their own parochial schools.11
70
The constitutional right of dissenters to substitute their parochial schools for public schools was sustained by the Court in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070.
71
The story of conflict and dissension is long and well known. The result was a state of so-called equilibrium where religious instruction was eliminated from public schools and the use of public funds to support religious schools was deemed to be banned.12
72
But the hydraulic pressures created by political forces and by economic stress were great and they began to change the situation. Laws were passed—state and federal—that dispensed public funds to sustain religious schools and the plea was always in the educational frame of reference: education in all sectors was needed, from languages to calculus to nuclear physics. And it was forcefully argued that a linguist or mathematician or physicist trained in religious schools was just as competent as one trained in secular schools.
73
And so we have gradually edged into a situation where vast amounts of public funds are supplied each year to sectarian schools.13
74
And the argument is made that the private parochial school system takes about $9 billion a year off the back of government14 as if that were enough to justify violating the Establishment Clause.
75
While the evolution of the public school system in this country marked an escape from denominational control and was therefore admirable as seen through the eyes of those who think like Madison and Jefferson, it has disadvantages. The main one is that a state system may attempt to mold all students alike according to the views of the dominant group and to discourage the emergence of individual idiosyncrasies.
76
Sectarian education, however, does not remedy that condition. The advantages of sectarian education relate solely to religious or doctrinal matters. They give the church the opportunity to indoctrinate its creed delicately and indirectly, or massively through doctrinal courses.
77
Many nations follow that course: Moslem nations teach the Koran in their schools; Sweden vests its elementary education in the parish; Newfoundland puts its school system under three superintendents—one from the Church of England, one from the Catholic church, one from the United Church. In Ireland the public schools are under denominational managership—Catholic, Episcopalian, Presbyterian, and Hebrew.
78
England puts sectarian schools under the umbrella of its school system. It finances sectarian education; it exerts control by prescribing standards; it requires some free scholarships; it provides nondenominational membership on the board of directors.15
79
The British system is, in other words, one of surveillance over sectarian schools. We too have surveillance over sectarian schools but only to the extent of making sure that minimum educational standards are met, viz., competent teachers, accreditation of the school for diplomas, the number of hours of work and credits allowed, and so on.
80
But we have never faced, until recently, the problem of policing sectarian schools. Any surveillance to date has been minor and has related only to the consistently unchallenged matters of accreditation of the sectarian school in the State's school system.16
81
The Rhode Island Act allows a supplementary salary to a teacher in a sectarian school if he or she 'does not teach a course in religion.' The Pennsylvania Act provides for state financing of instruction in mathematics, modern foreign languages, physical science, and physical education, provided that the instruction in those courses 'shall not include any subject matter expressing religious teaching, or the morals or forms of worship of any sect.'
82
Public financial support of parochial schools puts those schools under disabilities with which they were not previously burdened. For, as we held in Cooper v. Aaron, 358 U.S. 1, 19, 78 S.Ct. 1401, 1410, 3 L.Ed.2d 5, governmental activities relating to schools 'must be exercised consistently with federal constitutional requirements.' There we were concerned with equal protection; here we are faced with issues of Establishment of religion and its Free Exercise as those concepts are used in the First Amendment.
83
Where the governmental activity is the financing of the private school, the various limitations or restraints imposed by the Constitution on state governments come into play. Thus, Arkansas, as part of its attempt to avoid the consequences of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, withdrew its financial support from some public schools and sent the funds instead to private schools. That state action was held to violate the Equal Protection Clause. Aaron v. McKinley, D.C., 173 F.Supp. 944, 952. We affirmed, sub nom. Faubus v. Aaron, 361 U.S. 197, 80 S.Ct. 291, 4 L.Ed.2d 237. Louisiana tried a like tactic and it too was invalidated. Poindexter v. Louisiana Financial Assistance Commission, D.C., 296 F.Supp. 686. Again we affirmed. Louisiana Ed. Commission for Needy Children v. Poindexter, 393 U.S. 17, 89 S.Ct. 48, 21 L.Ed.2d 16. Whatever might be the result in case of grants to students,17 it is clear that once one of the States finances a private school, it is duty-bound to make certain that the school stays within secular bounds and does not use the public funds to promote sectarian causes.
84
The government may, of course, finance a hospital though it is run by a religious order, provided it is open to people of all races and creeds. Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168. The government itself could enter the hospital business; and it would, of course, make no difference if its agents who ran its hospitals were Catholics, Methodists, agnostics, or whatnot. For the hospital is not indulging in religious instruction or guidance or indoctrination. As Mr. Justice Jackson said in Everson v. Board of Education, 330 U.S. 1, 26, 67 S.Ct. 504, 516, 91 L.Ed. 711 (dissenting):
85
'(Each State has) great latitude in deciding for itself, in the light of its own conditions, what shall be public purposes in its scheme of things. It may socialize utilities and economic enterprises and make taxpayers' business out of what conventionally had been private business. It may make public business of individual welfare, health, education, entertainment or security. But it cannot make public business of religious worship or instruction, or of attendance at religious institutions of any character.'
86
The reason is that given by Madison in his Remonstrance:18
87
'(T)he same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment * * *.'
88
When Madison in his Remonstrance attacked a taxing measure to support religious activities, he advanced a series of reasons for opposing it. One that is extremely relevant here was phrased as follows:19 '(I)t will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects.' Intermeddling, to use Madison's word, or 'entanglement,' to use what was said in Watz, has two aspects. The intrusion of government into religious schools through grants, supervision, or surveillance may result in establishment of religion in the constitutional sense when what the State does enthrones a particular sect for overt or subtle propagation of its faith. Those activities of the State may also intrude on the Free Exercise Clause by depriving a teacher, under threats of reprisals, of the right to give sectarian construction or interpretation of, say, history and literature, or to use the teaching of such subjects to inculcate a religious creed or dogma.
89
Under these laws there will be vast governmental suppression, surveillance, or meddling in church affairs. As I indicated in Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790, decided this day, school prayers, the daily routine of parochial schools, must go if our decision in Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601, is honored. If it is not honored, then the state has established a religious sect. Elimination of prayers is only part of the problem. The curriculum presents subtle and difficult problems. The constitutional mandate can in part be carried out by censoring the curricula. What is palpably a sectarian course can be marked for deletion. But the problem only starts there. Sectarian instruction, in which, of course, a State may not indulge, can take place in a course on Shakespeare or in one on mathematics. No matters what the curriculum offers, the question is, what is taught? We deal not with evil teachers but with zealous ones who may use any opportunity to indoctrinate a class.20
90
It is well known that everything taught in most parochial schools is taught with the ultimate goal of religious education in mind. Rev. Joseph H. Fichter, S.J., stated in Parochial School: A Sociological Study 86 (1958):
91
'It is a commonplace observation that in the parochial school religion permeates the whole curriculum, and is not confined to a single half-hour period of the day. Even arithmetic can be used as an instrument of pious thoughts, as in the case of the teacher who gave this problem to her class: 'If it takes forty thousand priests and a hundred and forty thousand sisters to care for forty million Catholics in the United States, how many more priests and sisters will be needed to convert and care for the hundred million non-Catholics in the United States?"
92
One can imagine what a religious zealot, as contrasted to a civil libertarian, can do with the Reformation or with the Inquisition. Much history can be given the gloss of a particular religion. I would think that policing these grants to detect sectarian instruction would be insufferable to religious partisans and would breed division and dissension between church and state.
93
This problem looms large where the church controls the hiring and firing of teachers:
94
'(I)n the public school the selection of a faculty and the administration of the school usually rests with a school board which is subject to election and recall by the voters, but in the parochial school the selection of a faculty and the administration of the school is in the hands of the bishop alone, and usually is administered through the local priest. If a faculty member in the public school believes that he has been treated unjustly in being disciplined or dismissed, he can seek redress through the civil court and he is guaranteed a hearing. But if a faculty member in a parochial school is disciplined or dismissed he has no recourse whatsoever. The word of the bishop or priest is final, even without explanation if he so chooses. The tax payers have a voice in the way their money is used in the public school, but the people who support a parochial school have no voice at all in such affairs.' L. Boettner, Roman Catholicism 375 (1962).
95
Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060, dealt only with textbooks. Even so, some had difficulty giving approval. Yet books can be easily examined independently of other aspects of the teaching process. In the present cases we deal with the totality of instruction destined to be sectarian, at least in part, if the religious character of the school is to be maintained. A school which operates to commingle religion with other instruction plainly cannot completely secularize its instruction. Parochial schools, in large measure, do not accept the assumption that secular subjects should be unrelated to religious teaching.
96
Lemon involves a state statute that prescribes that courses in mathematics, modern foreign languages, physical science, and physical education 'shall not include any subject matter expressing religious teaching, or the morals or forms of worship of any sect.' The subtleties involved in applying this standard are obvious. It places the State astride a sectarian school and gives it power to dictate what is or is not secular, what is or is not religious. I can think of no more disrupting influence apt to promote rancor and ill-will between church and state than this kind of surveillance and control. They are the very opposite of the 'moderation and harmony' between church and state which Madison thought was the aim and purpose of the Establishment Clause.
97
The DiCenso cases have all the vices which are in Lemon, because the supplementary salary payable to the teacher is conditioned on his or her not teaching 'a course in religion.'
98
Moreover the DiCenso cases reveal another, but related, knotty problem presented when church and state launch one of these educational programs. The Bishop of Rhode Island has a Handbook of School Regulations for the Diocese of Providence.21
99
The school board supervises 'the education, both spiritual and secular, in the parochial schools and diocesan high schools.'
100
The superintendent is an agent of the bishop and he interprets and makes 'effective state and diocesan educational directives.' The pastors visit the schools and 'give their assistance in promoting spiritual and intellectual discipline.'
101
Community supervisors 'assist the teacher in the problems of instruction' and these duties are:
102
'I. To become well enough acquainted with the teachers of their communities so as to be able to advise the community superiors on matters of placement and reassignment.
103
II. To act as liaison between the provincialate and the religious teacher in the school.
104
'III. To cooperate with the superintendent by studying the diocesan school regulations and to encourage the teachers of their community to observe these regulations.
105
'IV. To avoid giving any orders or directions to the teachers of their community that may be in conflict with diocesan regulations or policy regarding curriculum, testing, textbooks, method, or administrative matters.
106
'V. To refer questions concerning school administration beyond the scope of their own authority to the proper diocesan school authorities, namely, the superintendent of schools or the pastor.'
107
The length of the school day includes Mass:
108
'A full day session for Catholic schools at the elementary level consists of five and one-half hours, exclusive of lunch and Mass,22 but inclusive of recess for pupils in grades 1 3.'
109
A course of study or syllabus prescribed for an elementary or secondary school is 'mandatory.' Religious instruction is provided as follows:
110
'A. Systematic religious instructions must be provided in all schools of the diocese.
111
'B. Modern catechetics requires a teacher with unusual aptitudes, specialized training, and such unction of the spirit that his words possess the force of a personal call. He should be so filled with his subject that he can freely improvize in discussion, dramatization, drawing, song, and prayer. A teacher so gifted and so permeated by the message of the Gospel is rare. Perhaps no teacher in a given school attains that ideal. But some teachers come nearer it than others. If our pupils are to hear the Good News so that their minds are enlightened and their hearts respond to the love of God and His Christ, if they are to be formed into vital, twentieth-century Christians, they should receive their religious instructions only from the very best teachers.
112
'C. Inasmuch as the textbooks employed in religious instruction above the fifth grade require a high degree of catechetical preparation, religion should be a departmentalized subject in grade six through twelve.'
113
Religious activities are provided, through observance of specified holy days and participation in Mass.
114
'Religious formation' is not restricted to courses but is achieved 'through the example of the faculty, the tone of the school * * * and religious activities.'
115
No unauthorized priest may address the students.
116
'Retreats and days of recollection form an integral part of our religious program in the Catholic schools.'
117
Religious factors are used in the selection of students:
118
'Although wealth should never serve as a criterion for accepting a pupil into a Catholic school, all other things being equal, it would seem fair to give preference to a child whose parents support the parish. Regular use of the budget, rather than the size of the contributions, would appear equitable. It indicates whether parents regularly attend Mass.'
119
These are only highlights of the handbook. But they indicate how pervasive is the religious control over the school and how remote this type of school is from the secular school. Public funds supporting that structure are used to perpetuate a doctrine and creed in innumerable and in pervasive ways. Those who man these schools are good people, zealous people, dedicated people. But they are dedicated to ideas that the Framers of our Constitution placed beyond the reach of government.
120
If the government closed its eyes to the manner in which these grants are actually used it would be allowing public funds to promote sectarian education. If it did not close its eyes but undertook the surveillance needed, it would, I fear, intermeddle in parochial affairs in a way that would breed only rancor and dissension.
121
We have announced over and over again that the use of taxpayers' money to support parochial schools violates the First Amendment, applicable to the States by virtue of the Fourteenth.
122
We said in unequivocal words in Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed. 711, '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.' We reiterated the same idea in Zorach v. Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 684, 96 L.Ed. 954, and in McGowan v. Maryland, 366 U.S. 420, 443, 8u S.Ct. 1101, 1114, 6 L.Ed.2d 393, and in Torcaso v. Watkins, 367 U.S. 488, 493, 81 S.Ct. 1680, 1682, 6 L.Ed.2d 982. We repeated the same idea in McCollum v. Board of Education, 333 U.S. 203, 210, 68 S.Ct. 461, 464, 92 L.Ed. 648, and added that a State's tax-supported public schools could not be used 'for the dissemination of religious doctrines' nor could a State provide the church 'pupils for their religious classes through use of the state's compulsory public school machinery.' Id., at 212, 68 S.Ct., at 466.
123
Yet in spite of this long and consistent history there are those who have the courage to announce that a State may nonetheless finance the secular part of a sectarian school's educational program. That, however, makes a grave constitutional decision turn merely on cost accounting and bookkeeping entries. A history class, a literature class, or a science class in a parochial school is not a separate institute; it is part of the organic whole which the State subsidizes. The funds are used in these cases to pay or help pay the salaries of teachers in parochial schools; and the presence of teachers is critical to the essential purpose of the parochial school, viz., to advance the religious endeavors of the particular church. It matters not that the teacher receiving taxpayers' money only teaches religion a fraction of the time. Nor does it matter that he or she teaches no religion. The school is an organism living on one budget. What the taxpayers give for salaries of those who teach only the humanities or science without any trace of proseletyzing enables the school to use all of its own funds for religious training. As Judge Coffin said, 316 F.Supp. 112, 120, we would be blind to realities if we let 'sophisticated bookkeeping' sanction 'almost total subsidy of a religious institution by assigning the bulk of the institution's expenses to 'secular' activities.' And sophisticated attempts to avoid the Constitution are just as invalid as simple-minded ones. Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281.
124
In my view the taxpayers' forced contribution to the parochial schools in the present cases violates the First Amendment.
125
Mr. Justice MARSHALL, who took no part in the consideration or decision of No. 89, see ante, p. 625, while intimating no view as to the continuing vitality of Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), concurs in MR. JUSTICE DOUGLAS' opinion covering Nos. 569 and 570.
126
Mr. Justice BRENNAN.
127
I agree that the judgments in Nos. 569 and 570 must be affirmed. In my view the judgment in No. 89 must be reversed outright. I dissent in No. 153 insofar as the plurality opinion and the opinion of my Brother WHITE sustain the constitutionality, as applied to sectarian institutions, of the Federal Higher Education Facilities Act of 1963, as amended, 77 Stat. 363, 20 U.S.C. § 711 et seq. (1964 ed. and Supp. V). In my view that Act is unconstitutional insofar as it authorizes grants of federal tax monies to sectarian institutions, but is unconstitutional only to that extent. I therefore think that our remand of the case should be limited to the direction of a hearing to determine whether the four institutional appellees here are sectarian institutions.
128
I continue to adhere to the view that to give concrete meaning to the Establishment lishment Clause
129
'the line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers. It is a line which the Court has consistently sought to mark in its decisions expounding the religious guarantees of the First Amendment. What the Framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice. When the secular and religious institutions become involved in such a manner, there inhere in the relationship precisely those dangers—as much to church as to state—which the Framers feared would subvert religious liberty and the strength of a system of secular government.' Abington School District v. Schempp, 374 U.S. 203, 294—295, 83 S.Ct. 1560, 1609—1610, 10 L.Ed.2d 844 (1963) (concurring opinion); Walz v. Tax Commission, 397 U.S. 664, 680—681, 90 S.Ct. 1409, 1417—1418, 25 L.Ed.2d 697 (1970) (concurring opinion).
130
The common feature of all three statutes before us is the provision of a direct subsidy from public funds for activities carried on by sectarian educational institutions. We have sustained the reimbursement of parents for bus fares of students under a scheme applicable to both public and nonpublic schools, Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). We have also sustained the loan of textbooks in secular subjects to students of both public and nonpublic schools, Board of Education of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). See also Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168 (1899).
131
The statutory schemes before us, however, have features not present in either the Everson or Allen schemes. For example, the reimbursement or the loan of books ended government involvement in Everson and Annen. In contrast each of the schemes here exacts a promise in some form that the subsidy will not be used to finance courses in religious subjects—promises that must be and are policed to assure compliance. Again, although the federal subsidy, similar to the Everson and Allen subsidies, is available to both public and nonpublic colleges and universities, the Rhode Island and Pennsylvania subsidies are restricted to nonpublic schools, and for practical purposes to Roman Catholic parochial schools.1 These and other features I shall mention mean for me that Everson and Allen do not control these cases. Rather, the history of public subsidy of sectarian schools, and the purposes and operation of these particular statutes must be examined to determine whether the statutes breach the Establishment Clause. Walz v. Tax Commission, supra, 397 U.S., at 681, 90 S.Ct., at 1417 (concurring opinion).
132
* In sharp contrast to the 'undeviating acceptance given religious tax exemptions from our earliest days as a Nation,' ibid., subsidy of sectarian educational institutions became embroiled in bitter controversies very soon after the Nation was formed. Public education was, of course, virtually nonexistent when the Constitution was adopted. Colonial Massachusetts in 1647 had directed towns to establish schools, Benjamin Franklin in 1749 proposed a Philadelphia Academy, and Jefferson labored to establish a public school system in Virginia.2 But these were the exceptions. Education in the Colonies was overwhelmingly a private enterprise, usually carried on as a denominational activity by the dominant Protestant sects. In point of fact, government generally looked to the church to provide education, and often contributed support through donations of land and money. E. Cubberley, Public Education in the United States 171 (1919).
133
Nor was there substantial change in the years immediately following ratification of the Constitution and the Bill of Rights. Schools continued to be local and, in the main, denominational institutions.3 But the demand for public education soon emerged. The evolution of the struggle in New York City is illustrative.4 In 1786, the first New York State Legislature ordered that one section in each township be set aside for the 'gospel and schools.' With no public schools, various private agencies and churches operated 'charity schools' for the poor of New York City and received money from the state common school fund. The forerunner of the city's public schools was organized in 1805 when DeWitt Clinton founded 'The Society for Establishment of a Free School in the City of New York for the Education of such poor Children as do not belong to or are not provided for by any Religious Society.' The State and city aided the society, and it built many schools. Gradually, however, competition and bickering among the Free School Society and the various church schools developed over the apportionment of state school funds. As a result, in 1825, the legislature transferred to the city council the responsibility for distributing New York City's share of the state funds. The council stopped funding religious societies which operated 16 sectarian schools but continued supporting schools connected with the Protestant Orphan Asylum Society. Thereafter, in 1831, the Catholic Orphan Asylum Society demanded and received public funds to operate its schools but a request of Methodists for funds for the same purpose was denied. Nine years later, the Catholics enlarged their request for public monies to include all parochial schools, contending that the council was subsidizing sectarian books and instruction of the Public School Society, which Clinton's Free School Society had become. The city's Scotch Presbyterian and Jewish communities immediately followed with requests for funds to finance their schools. Although the Public School Society undertook to revise its texts to meet the objections, in 1842, the state legislature closed the bitter controversy by enacting a law that established a City Board of Education to set up free public schools, prohibited the distribution of public funds to sectarian schools, and prohibited the teaching of sectarian doctrine in any public school.
134
The Nation's rapidly developing religious heterogeneity, the tide of Jacksonian democracy, and growing urbanization soon led to widespread demands throughout the States for secular public education. At the same time strong opposition developed to use of the States' taxing powers to support private sectarian schools.5 Although the controversy over religious exercises in the public schools continued into this century, Schempp, 374 U.S., at 268—277, 83 S.Ct., at 1596—1601 (Brennan, J., concurring), the opponents of subsidy to sectarian schools had largely won their fight by 1900. In fact, after 1840, no efforts of sectarian schools to obtain a share of public school funds succeeded. Cubberley, supra, at 179. Between 1840 and 1875, 19 States added provisions to their constitutions iprohibiting the use of public school funds to aid sectarian schools, id., at 180, and by 1900, 16 more States had added similar provisions. In fact, no State admitted to the Union after 1858, except West Virginia, omitted such provision from its first constitution. Ibid. Today fewer than a half-dozen States omit such provisions from their constitutions.6 And in 1897, Congress included in its appropriation act for the District of Columbia a statement declaring it
135
'to be the policy of the Government of the United States to make no appropriation of money or property for the purpose of founding, maintaining, or aiding by payment for service, expenses, or otherwise, any church or religious denomination, or any institution or society which is under sectarian or ecclesiastical control.' 29 Stat. 411.
136
Thus for more than a century, the consensus, enforced by legislatures and courts with substantial consistency, has been that public subsidy of sectarian schools constitutes an impermissible involvement of secular with religious institutions.7 If this history is not itself compelling against the validity of the three subsidy statutes, in the sense we found in Walz that 'undeviating acceptance' was highly significant in favor of the validity of religious tax exemption, other forms of governmental involvement that each of the three statutes requires tips the scales in my view against the validity of each of them. These are involvements that threaten 'dangers—as much to church as to state—which the Framers feared would subvert religious liberty and the strength of a system of secular government.' Schempp, 374 U.S., at 295, 83 S.Ct., at 1610. (Brennan, J., concurring). '(G)overnment and religion have discrete interests which are mutually best served when each avoids too close a proximity to the other. It is not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil polity, but in as high degree it is the devout believer who fears the secularization of a creed which becomes too deeply involved with and dependent upon the government.' Id., at 259, 83 S.Ct., at 1591 (Brennan, J., concurring). All three of these statutes require 'too close a proximity' of government to the subsidized sectarian institutions and in my view create real dangers of 'the secularization of a creed.'
II
137
The Rhode Island statute requires Roman Catholic teachers to surrender their right to teach religion courses and to promise not to 'inject' religious teaching into their secular courses. This has led at least one teacher to stop praying with his classes,8 a concrete testimonial to the self-censorship that inevitably accompanies state regulation of delicate First Amendment freedoms. Cf. Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959); Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958). Both the Rhode Island and Pennsylvania statutes prescribe extensive standardization of the content of secular courses, and of the teaching materials and textbooks to be used in teaching the courses. And the regulations to implement those requirements necessarily require policing of instruction in the schools. The picture of state inspectors prowling the halls of parochial schools and auditing classroom instruction surely raises more than an imagined specter of governmental 'secularization of a creed.'
138
The same dangers attend the federal subsidy even if less obviously. The Federal Government exacts a promise that no 'sectarian instruction' or 'religious worship' will take place in a subsidized building. The Office of Education polices the promise.9 In one instance federal officials demanded that a college cease teaching a course entitled 'The History of Methodism' in a federally assisted building, although the Establishment Clause 'plainly does not foreclose teaching about the Holy Scriptures or about the differences between religious sects in classes in literature or history.' Schempp, 374 U.S., at 300, 83 S.Ct., at 1612 (Brennan, J., concurring). These examples illustrate the complete incompatibility of such surveillance with the restraints barring interference with religious freedom.10
139
Policing the content of courses, the specific textbooks used, and indeed the words of teachers is far different from the legitimate policing carried on under state compulsory attendance laws or laws regulating minimum levels of educational achievement. Government's legitimate interest in ensuring certain minimum skill levels and the acquisition of certain knowledge does not carry with it power to prescribe what shall not be taught, or what methods of instruction shall be used, or what opinions the teacher may offer in the course of teaching.
140
Moreover, when a sectarian institution accepts state financial aid it becomes obligated under the Equal Protection Clause of the Fourteenth Amendment not to discriminate in admissions policies and faculty selection. The District Court in the Rhode Island case pinpointed the dilemma:
141
'Applying these standards to parochial schools might well restrict their ability to discriminate in admissions policies, and in the hiring and firing of teachers. At some point the school becomes 'public' for more purposes than the Church could wish. At that point, the Church may justifiably feel that its victory on the Establishment Clause has meant abandonment of the Free Exercise Clause.' 316 F.Supp. at 121 122 (citations omitted).
III
142
In any event, I do not believe that elimination of these aspects of 'too close a proximity' would save these three statutes. I expressed the view in Walz that '(g)eneral subsidies of religious activities would, of course, constitute impermissible state involvement with religion.' 397 U.S., at 690, 90 S.Ct., at 1422 (concurring opinion). I do not think the subsidies under these statutes fall outside '(g)eneral subsidies of religious activities' merely because they are restricted to support of the teaching of secular subjects. In Walz, the passive aspect of the benefits conferred by a tax exemption, particularly since cessation of the exemptions might easily lead to impermissible involvements and conflicts, led me to conclude that exemptions were consistent with the First Amendment values. However, I contrasted direct government subsidies:
143
'Tax exemptions and general subsidies, however, are qualitatively different. Though both provide economic assistance, they do so in fundamentally different ways. A subsidy involves the direct transfer of public monies to the subsidized enterprise and uses resources exacted from taxpayers as a whole. An exemption, on the other hand, involves no such transfer. It assists the exempted enterprise only passively, by relieving a privately funded venture of the burden of paying taxes. In other words, '(i)n the case of direct subsidy, the state forcibly diverts the income of both believers and nonbelievers to churches,' while '(i)n the case of an exemption, the state merely refrains from diverting to its own uses income independently generated by the churches through voluntary contributions.' Thus, 'the symbolism of tax exemption is significant as a manifestation that organized religion is not expected to support the state; by the same token the state is not expected to support the church." 397 U.S., at 690—691, 90 S.Ct., at 1423 (footnotes and citations omitted) (concurring opinion).
144
Pennsylvania, Rhode Island, and the Federal Government argue strenuously that the government monies in all these cases are not '(g)eneral subsidies of religious activities' because they are paid specifically and solely for the secular education that the sectarian institutions provide.11
145
Before turning to the decisions of this Court on which this argument is based, it is important to recall again the history of subsidies to sectarian schools. See Part I, supra. The universality of state constitutional provisions forbidding such grants, as well as the weight of judicial authority disapproving such aid as a violation of our tradition of separation of church and state, reflects a time-tested judgment that such grants do indeed constitute impermissible aid to religion. See nn. 6 and 7, supra. The recurrent argument, consistently rejected in the past, has been that government grants to sectarian schools ought not be viewed as impermissible subsidies 'because (the schools) relieve the State of a burden, which it would otherwise be itself required to bear * * * they will render a service to the state by performing for it its duty of educating the children of the people.' Cook County v. Chicago Industrial School, 125 Ill. 540, 571, 18 N.E. 183, 197 (1888).
146
Nonetheless, it is argued once again in these cases that sectarian schools and universities perform two separable functions. First, they provide secular education, and second, they teach the tenets of a particular sect. Since the State has determined that the secular education provided in sectarian schools serves the legitimate state interest in the education of its citizens, it is contended that state aid solely to the secular education function does not involve the State in aid to religion. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), and Board of Education of Central School Dist. No. 1 v. Allen, supra, are relied on as support for the argument.
147
Our opinion in Allen recognized that sectarian schools provide both a secular and a sectarian education:
148
'(T)his Court has long recognized that religious schools pursue two goals, religious instruction and secular education. In the leading case of Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), the Court held that * * * Oregon had not shown that its interest in secular education required that all children attend publicly operated schools. A premise of this holding was the view that the State's interest in education would be served sufficiently by reliance on the secular teaching that accompanied religious training in the schools maintained by the Society of Sisters.
149
'(T)he continued willingness to rely on private school systems, including parochial systems, strongly suggests that a wide segment of informed opinion, legislative and otherwise, has found that those schools do an acceptable job of providing secular education to their students. This judgment is further evidence that parochial schools are performing, in addition to their sectarian function, the task of secular education.' Board of Education of Central School Dist. No. 1 v. Allen, 392 U.S., at 245, 247—248, 88 S.Ct., at 1929 (footnote omitted).
150
But I do not read Pierce or Allen as supporting the proposition that public subsidy of a sectarian institution's secular training is permissible state involvement. I read them as supporting the proposition that as an identifiable set of skills and an identifiable quantum of knowledge, secular education may be effectively provided either in the religious context of parochial schools, or outside the context of religion in public schools. The State's interest in secular education may be defined broadly as an interest in ensuring that all children within its boundaries acquire a minimum level of competency in certain skills, such as reading, writing, and arithmetic, as well as a minimum amount of information and knowledge in certain subjects such as history, geography, science, literature, and law. Without such skills and knowledge, an individual will be at a severe disadvantage both in participating in democratic self-government and in earning a living in a modern industrial economy. But the State has no proper interest in prescribing the precise forum in which such skills and knowledge are learned since acquisition of this secular education is neither incompatible with religious learning, nor is it inconsistent with or inimical to religious precepts.
151
When the same secular educational process occurs in both public and sectarian schools, Allen held that the State could provide secular textbooks for use in that process to students in both public and sectarian schools. Of course, the State could not provide textbooks giving religious instruction. But since the textbooks involved in Allen would, at least in theory, be limited to secular education, no aid to sectarian instruction was involved.
152
More important, since the textbooks in Allen had been previously provided by the parents, and not the schools, 392 U.S., at 244 n. 6, 88 S.Ct., at 1926, no aid to the institution was involved. Rather, as in the case of the bus transportation in Everson, the general program of providing all children in the State with free secular textbooks assisted all parents in schooling their children. And as in Everson, there was undoubtedly the possibility that some parents might not have been able to exercise their constitutional right to send their children to parochial school if the parents were compelled themselves to pay for textbooks. However, as my Brother Black wrote for the Court in Everson,
153
'(C)utting off church schools from these (general) services, so separate and so indisputably marked off from the religious function, would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.' 330 U.S., at 18, 67 S.Ct., at 512.
154
Allen, in my view, simply sustained a statute in which the State was 'neutral in its relations with groups of religious believers and non-believers.' The only context in which the Court in Allen employed the distinction between secular and religious in a parochial school was to reach its conclusion that the textbooks that the State was providing could and would be secular.12 The present cases, however, involve direct subsidies of tax monies to the schools themselves and we cannot blink the fact that the secular education those schools provide goes hand in hand with the religious mission that' is the only reason for the schools' existence. Within the institution, the two are inextricably intertwined.
155
The District Court, in the DiCenso case found that all the varied aspects of the parochial school's program—the nature of its faculty, its supervision, decor, program, extracurricular activities, assemblies, courses, etc.—produced an 'intangible 'religious atmosphere," since the 'diocesan school system is an integral part of the religious mission of the Catholic Church' and 'a powerful vehicle for transmitting the Catholic faith to the next generation.' 316 F.Supp., at 117. Quality teaching in secular subjects is an integral part of this religious enterprise. 'Good secular teaching is as essential to the religious mission of the parochial schools as a roof for the school or desks for the classrooms.' 316 F.Supp., at 117—118. That teaching cannot be separated from the environment in which it occurs, for its integration with the religious mission is both the theory and the strength of the religious school.
156
The common ingredient of the three prongs of the test set forth at the outset of this opinion is whether the statutes involve government in the 'essentially religious activities' of religious institutions. My analysis of the operation, purposes, and effects of these statutes leads me inescapably to the conclusion that they do impermissibly involve the States and the Federal Government with the 'essentially religious activities' of sectarian educational institutions. More specifically, for the reasons stated, I think each government uses 'essentially religious means to serve governmental ends, where secular means would suffice.' This Nation long ago committed itself to primary reliance upon publicly supported public education to serve its important goals in secular education. Our religious diversity gave strong impetus to that commitment.
157
'(T)he American experiment in free public education available to all children has been guided in large measure by the dramatic evolution of the religious diversity among the population which our public schools serve. * * * The public schools are supported entirely, in most communities, by public funds—funds exacted not only from parents, nor alone from those who hold particular religious views, nor indeed from those who subscribe to any creed at all. It is implicit in the history and character of American public education that the public schools serve a uniquely public function: the training of American citizens in an atmosphere free of parochial divisive, or separatist influences of any sort—an atmosphere in which children may assimilate a heritage common to all American groups and religions. This is a heritage neither theistic nor atheistic, but simply civic and patriotic.' Schempp, 374 U.S., at 241—242, 83 S.Ct., at 1581 1582 (citation omitted) (Brennan, J., concurring).
158
I conclude that, in using sectarian institutions to further goals in secular education, the three statutes do violence to the principle that 'government may not employ religious means to serve secular interests, however legitimate they may be, at least without the clearest demonstration that nonreligious means will not suffice.' Schempp, supra, at 265, 83 S.Ct., at 1594 (Brennan, J., concurring).
IV
159
The plurality's treatment of the issues in Tilton, No. 153, diverges so substantially from my own that I add these further comments. I believe that the Establishment Clause forbids the Federal Government to provide funds to sectarian universities in which the propagation and advancement of a particular religion are a function or purpose of the institution. Since the District Court made no findings whether the four institutional appellees here are sectarian, I would remand the case to the District Court with directions to determine whether the institutional appellees are 'sectarian' institutions.
160
I reach this conclusion for the reasons I have stated: the necessarily deep involvement of government in the religious activities of such an institution through the policing of restrictions, and the fact that subsidies of tax monies directly to a sectarian institution necessarily aid the proselytizing function of the institution. The plurality argues that neither of these dangers is present.13
161
At the risk of repetition, I emphasize that a sectarian university is the equivalent in the realm of higher education of the Catholic elementary schools in Rhode Island; it is an educational institution in which the propagation and advancement of a particular religion are a primary function of the institution. I do not believe that construction grants to such a sectarian institution are permissible. The reason is not that religion 'permeates' the secular education that is provided. Rather, it is that the secular education is provided within the environment of religion; the institution is dedicated to two goals, secular education and religious instruction. When aid flows directly to the institution, both functions benefit. The plurality would examine only the activities that occur within the federally assisted building and ignore the religious nature of the school of which it is a part. The 'religious enterprise' aided by the construction grants involves the maintenance of an educational environment—which includes high-quality, purely secular educational courses—within which religious instruction occurs in a variety of ways.
162
The plurality also argues that no impermissible entanglement exists here. My Brother WHITE cogently comments upon that argument: 'Why the federal program in the Tilton case is not embroiled with the same difficulties (as the Rhode Island program) is never adequately explained.' Post, at 668. I do not see any significant difference in the Federal Government's telling the sectarian university not to teach any nonsecular subjects in a certain building, and Rhode Island's telling the Catholic school teacher not to teach religion. The vice is the creation through subsidy of a relationship in which the government policies the teaching practices of a religious school or university. The plurality suggests that the facts that college students are less impressionable and that college courses are less susceptible to religious permeation may lessen the need for federal policing. But the record shows that such policing has occurred and occurred in a heavy-handed way. Given the dangers of self-censorship in such a situation, I cannot agree that the dangers of entanglement are insubstantial. Finally, the plurality suggests that the 'nonideological' nature of a building, as contrasted with a teacher, reduces the need for policing. But the Federal Government imposes restrictions on every class taught in the federally assisted building. It is therefore not the 'nonideological' building that is policed; rather, it is the courses given there and the teachers who teach them. Thus, the policing is precisely the same as under the state statutes, and that is what offends the Constitution.
V
163
I, therefore, agree that the two state statutes that focus primarily on providing public funds to sectarian schools are unconstitutional. However, the federal statute in No. 153 is a general program of construction grants to all colleges and universities, including sectarian institutions. Since I believe the statute's extension of eligibility to sectarian institutions is severable from the broad general program authorized, I would hold the Higher Education Facilities Act unconstitutional only insofar as it authorized grants of federal tax monies to sectarian institutions—institutions that have a purpose or function to propagate or advance a particular religion. Therefore, if the District Court determines that any of the four institutional appellees here are 'sectarian,' that court, in my view, should enjoin the other appellees from making grants to it.
164
Mr. Justice WHITE, concurring in the judgment in 89 and 153 and dissenting in Nos. 569 and 570.
165
It is our good fortune that the States of this country long ago recognized that instruction of the young and old ranks high on the scale of proper governmental functions and not only undertook secular education as a public responsibility but also required compulsory attendance at school by their young. Having recognized the value of educated citizens and assumed the task of educating them, the States now before us assert a right to provide for the secular education of children whether they attend public schools or chose to enter private institutions, even when those institutions are church-related. The Federal Government also asserts that it is entitled, where requested, to contribute to the cost of secular education by furnishing buildings and facilities to all institutions of higher learning, public and private alike. Both the United States and the States urge that if parents choose to have their children receive instruction in the required secular subjects in a school where religion is also taught and a religious atmosphere may prevail, part or all of the cost of such secular instruction may be paid for by governmental grants to the religious institution conducting the school and seeking the grant. Those who challenge this position would bar official contributions to secular education where the family prefers the parochial to both the public and nonsectarian private school.
166
The issue is fairly joined. It is precisely the kind of issue the Constitution contemplates this Court must ultimately decide. This is true although neither affirmance nor reversal of any of these cases follows automatically from the spare language of the First Amendment, from its history, or from the cases of this Court construing it and even though reasonable men can very easily and sensibly differ over the import of that language.
167
But, while the decision of the Court is legitimate, it is surely quite wrong in overturning the Pennsylvania and Rhode Island statutes on the ground that they amount to an establishment of religion forbidden by the First Amendment.
168
No one in these cases questions the constitutional right of parents to satisfy their state-imposed obligation to educate their children by sending them to private schools, sectarian or otherwise, as long as those schools meet minimum standards established for secular instruction. The States are not only permitted, but required by the Constitution, to free students attending private schools from any public school attendance obligation. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). The States may also furnish transportation for students, Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), and books for teaching secular subjects to students attending parochial and other private as well as public schools, Board of Education of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968); we have also upheld arrangements whereby students are released from public school classes so that they may attend religious instruction. Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952). Outside the field of education, we have upheld Sunday closing laws, McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), state and federal laws exempting church property and church activity from taxation, Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), and governmental grants to religious organizations for the purpose of financing improvements in the facilities of hospitals managed and controlled by religious orders. Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168 (1899).
169
Our prior cases have recognized the dual role of parochial schools in American society: they perform both religious and secular functions. See Board of Education v. Allen, supra, 392 U.S., at 248, 88 S.Ct., at 1929. Our cases also recognize that legislation having a secular purpose and extending governmental assistance to sectarian schools in the performance of their secular functions does not constitute 'law(s) respecting an establishment of religion' forbidden by the First Amendment merely because a secular program may incidentally benefit a church in fulfilling its religious mission. That religion may indirectly benefit from governmental aid to the secular activities of churches does not convert that aid into an impermissible establishment of religion.
170
This much the Court squarely holds in the Tilton case, where it also expressly rejects the notion that payments made directly to a religious institution are, without more, forbidden by the First Amendment. In Tilton, the Court decides that the Federal Government may finance the separate function of secular education carried on in a parochial setting. It reaches this result although sectarian institutions undeniably will obtain substantial benefit from federal aid; without federal funding to provide adequate facilities for secular education, the student bodies of those institutions might remain stationary or even decrease in size and the institutions might ultimately have to close their doors.
171
It is enough for me that the States and the Federal Government are financing a separable secular function of overriding importance in order to sustain the legislation here challenged. That religion and private interests other than education may substantially benefit does not convert these laws into impermissible establishments of religion.
172
It is unnecessary, therefore, to urge that the Free Exercise Clause of the First Amendment at least permits government in some respects to modify and mold its secular programs out of express concern for free-exercise values. See Walz v. Tax Commission, supra, 397 U.S., at 673, 90 S.Ct., at 1413 (tax exemption for religious properties; '(t)he limits of permissible state accommodation to religion are by no means coextensive with the noninterference mandated by the Free Exercise Clause. To equate the two would be to deny a national heritage with roots in the Revolution itself'); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (exemption of Seventh Day Adventist from eligibility requirements for unemployment insurance not only permitted but required by the Free Exercise Clause); Zorach v. Clauson, supra, 343 U.S., at 313—314, 72 S.Ct., at 683—684 (students excused from regular public school routine to obtain religious instruction; '(w)hen the state encourages religious instruction * * * it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs'). See also Abington School District v. Schempp, 374 U.S. 203, 308, 83 S.Ct. 1560, 1616, 10 L.Ed.2d 844 (1963) (Stewart, J., dissenting); Welsh v. United States, 398 U.S. 333, 367, 90 S.Ct. 1792, 1810, 26 L.Ed.2d 308 (1970) (White, J., dissenting). The Establishment Clause, however, coexists in the First Amendment with the Free Exercise Clause and the latter is surely relevant in cases such as these. Where a state program seeks to ensure the proper education of its young, in private as well as public schools, free exercise considerations at least counsel against refusing support for students attending parochial schools simply because in that setting they are also being instructed in the tenets of the faith they are constitutionally free to practice.
173
I would sustain both the federal and the Rhode Island programs at issue in these cases, and I therefore concur in the judgment in No. 1531 and dissent from the judgments in Nos. 569 and 570. Although I would also reject the facial challenge to the Pennsylvania statute, I concur in the judgment in No. 89 for the reasons given below.
174
The Court strikes down the Rhode Island statute on its face. No fault is found with the secular purpose of the program; there is no suggestion that the purpose of the program was aid to religion disguised in secular attire. Nor does the Court find that the primary effect of the program is to aid religion rather than to implement secular goals. The Court nevertheless finds that impermissible 'entanglement' will result from administration of the program. The reasoning is a curious and mystifying blend, but a critical factor appears to be an unwillingness to accept the District Court's express findings that on the evidence before it none of the teachers here involved mixed religious and secular instruction. Rather, the District Court struck down the Rhode Island statute because it concluded that activities outside the secular classroom would probably have a religious content and that support for religious education therefore necessarily resulted from the financial aid to the secular programs, since that aid generally strengthened the parochial schools and increased the number of their students.
175
In view of the decision in Tilton, however, where these same factors were found insufficient to invalidate the federal plan, the Court is forced to other considerations. Accepting the District Court's observation in DiCenso that education is an integral part of the religious mission of the Catholic church—an observation that should neither surprise nor alarm anyone, especially judges who have already approved substantial aid to parochial schools in various forms—the majority then interposes findings and conclusions that the District Court expressly abjured, namely, that nuns, clerics, and dedicated Catholic laymen unavoidably pose a grave risk in that they might not be able to put aside their religion in the secular classroom. Although stopping short of considering them untrustworthy, the Court concludes that for them the difficulties of avoiding teaching religion along with secular subjects would pose intolerable risks and would in any event entail an unacceptable enforcement regime. Thus, the potential for impermissible fostering of religion in secular classrooms—an untested assumption of the Court paradoxically renders unacceptable the State's efforts at insuring that secular teachers under religious discipline successfully avoid conflicts between the religious mission of the school and the secular purpose of the State's education program.
176
The difficulty with this is twofold. In the first place, it is contrary to the evidence and the District Court's findings in DiCenso. The Court points to nothing in this record indicating that any participating teacher had inserted religion into his secular teaching or had had any difficulty in avoiding doing so. The testimony of the teachers was quite the contrary. The District Court expressly found that '(t)his concern for religious values does not necessarily affect the content of secular subjects in diocesan schools. On the contrary, several teachers testified at trial that they did not inject religion into their secular classes, and one teacher deposed that he taught exactly as he had while employed in a public school. This testimony gains added credibility from the fact that several of the teachers were non-Catholics. Moreover, because of the restrictions of Rhode Island's textbook loan law * * * and the explicit requirement of the Salary Supplement Act, teaching materials used by applicants for aid must be approved for use in the public schools.' DiCenso v. Robinson, 316 F.Supp. 112, 117 (RI 1970). Elsewhere, the District Court reiterated that the defect of the Rhode Island statute was 'not that religious doctrine overtly intrudes into all instruction,' ibid., but factors aside from secular courses plus the fact that good secular teaching was itself essential for implementing the religious mission of the parochial school.
177
Secondly, the Court accepts the model for the Catholic elementary and secondary schools that it was rejected for the Catholic universities or colleges in the Tilton case. There it was urged that the Catholic condition of higher learning was an integral part of the religious mission of the church and that these institutions did everything they could to foster the faith. The Court's response was that on the record before it none of the involved institutions was shown to have complied with the model and that it would not purport to pass on cases not before it. Here, however, the Court strikes down this Rhode Island statute based primarily on its own model and its own suppositions and unsupported views of what is likely to happen in Rhode Island parochial school classrooms, although on this record there is no indication that entanglement difficulties will accompany the salary supplement program.
178
The Court thus creates an insoluble paradox for the State and the parochial schools. The State cannot finance secular instruction if it permits religion to be taught in the same classroom; but if it exacts a promise that religion not be so taught—a promise the school and its teachers are quite willing and on this record able to give—and enforces it, it is then entangled in the 'no entanglement' aspect of the Court's Establishment Clause jurisprudence.
179
Why the federal program in the Tilton case is not embroiled in the same difficulties is never adequately explained. Surely the notion that college students are more mature and resistant to indoctrination is a make-weight, for in Tilton there is careful note of the federal condition on funding and the enforcement mechanism available. If religious teaching in federally financed buildings was permitted, the powers of resistance of college students would in no way save the federal scheme. Nor can I imagine the basis for finding college clerics more reliable in keeping promises than their counterparts in elementary and secondary schools—particularly those in the Rhode Island case, since within five years the majority of teachers in Rhode Island parochial schools will be lay persons, many of them non-Catholic.
180
Both the District Court and this Court in DiCenso have seized on the Rhode Island formula for supplementing teachers' salaries since it requires the State to verify the amount of school money spent for secular as distinguished from religious purposes. Only teachers in those schools having per-pupil expenditures for secular subjects below the state average qualify under the system, an aspect of the state scheme which is said to provoke serious 'entanglement.' But this is also a slender reed on which to strike down this law, for as the District Court found, only once since the inception of the program has it been necessary to segregate expenditures in this manner.
181
The District Court also focused on the recurring nature of payments by the State of Rhode Island; salaries must be supplemented and money appropriated every year and hence the opportunity for controversy and friction over state aid to religious schools will constantly remain before the State. The Court adopts this theme in DiCenso and makes much of the fact that under the federal scheme the grant to a religious institution is a one-time matter. But this argument is without real force. It is apparent that federal interest in any grant will be a continuing one since the conditions attached to the grant must be enforced. More important, the federal grant program is an ongoing one. The same grant will not be repeated, but new ones to the same or different schools will be made year after year. Thus the same potential for recurring political controversy accompanies the federal program. Rhode Island may have the problem of appropriating money each year to supplement the salaries of teachers, but the United States must each year seek financing for the new grants it desires to make and must supervise the ones already on the record.
182
With respect to Pennsylvania, the Court, accepting as true the factual allegations of the complaint, as it must for purposes of a motion to dismiss, would reverse the dismissal of the complaint and invalidate the legislation. The critical allegations, as paraphrased by the Court, are that 'the church-related elementary and secondary schools are controlled by religious organizations, have the purpose of propagating and promoting a particular religious faith, and conduct their operations to fulfill that purpose.' 403 U.S., at 620, 91 S.Ct., at 2115. From these allegations the Court concludes that forbidden entanglements would follow from enforcing compliance with the secular purpose for which the state money is being paid.
183
I disagree. There is no specific allegation in the complaint that sectarian teaching does or would invade secular classes supported by state funds. That the schools are operated to promote a particular religion is quite consistent with the view that secular teaching devoid of religious instruction can successfully be maintained, for good secular instruction is, as Judge Coffin wrote for the District Court in the Rhode Island case, essential to the success of the religious mission of the parochial school. I would no more here than in the Rhode Island case substitute presumption for proof that religion is or would be taught in state-financed secular courses or assume that enforcement measures would be so extensive as to border on a free exercise violation. We should not forget that the Pennsylvania statute does not compel church schools to accept state funds. I cannot hold that the First Amendment forbids an agreement between the school and the State that the state funds would be used only to teach secular subjects.
184
I do agree, however, that the complaint should not have been dismissed for failure to state a cause of action. Although it did not specifically allege that the schools involved mixed religious teaching with secular subjects, the complaint did allege that the schools were operated to fulfill religious purposes and one of the legal theories stated in the complaint was that the Pennsylvania Act 'finances and participates in the blending of sectarian and secular instruction.' At trial under this complaint, evidence showing such a blend in a course supported by state funds would appear to be admissible and, if credited, would establish financing of religious instruction by the State. Hence, I would reverse the judgment of the District Court and remand the case for trial, thereby holding the Pennsylvania legislation valid on its face but leaving open the question of its validity as applied to the particular facts of this case.
185
I find it very difficult to follow the distinction between the federal and state programs in terms of their First Amendment acceptability. My difficulty is not surprising, since there is frank acknowledgment that 'we can only dimly perceive the boundaries of permissible government activity in this sensitive area of constitutional adjudication,' Tilton v. Richardson, 403 U.S., at 678, 91 S.Ct., at 2095, and that '(j)udicial caveats against entanglement' are a 'blurred, indistinct and variable barrier.' Lemon v. Kurtzman, 403 U.S., at 614, 91 S.Ct. at 2112. I find it even more difficult, with these acknowledgments in mind, to understand how the Court can accept the considered judgment of Congress that its program is constitutional and yet reject the equally considered decisions of the Rhode Island and Pennsylvania legislatures that their programs represent a constitutionally acceptable accommodation between church and state.2
1
R.I.Pen.Laws Ann. § 16—51—1 et seq. (Supp.1970).
2
The District Court found only one instance in which this breakdown between religious and secular expenses was necessary. The school in question was not affiliated with the Catholic church. The court found it unlikely that such determinations would be necessary with respect to Catholic schools because their heavy reliance on nuns kept their wage costs substantially below those of the public schools.
3
Pa.Stat.Ann., Tit. 24, §§ 5601—5609 (Supp.1971).
4
Latin, Hebrew, and classical Greek are excluded.
5
Plaintiffs-appellants also claimed that the Act violated the Equal Protection Clause of the Fourteenth Amendment by providing state assistance to private institutions that discriminated on racial and religious grounds in their admissions and hiring policies. The court unanimously held that no plaintiff had standing to raise this claim because the complaint did not allege that the child of any plaintiff had been denied admission to any nonpublic school on racial or religious grounds. Our decision makes it unnecessary for us to reach this issue.
6
See, e.g., J. Fichter, Parochial School: A Sociological Study 77—108 (1958); Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, pt. II, The Nonestablishment Principle, 81 Harv.L.Rev. 513, 574 (1968).
1
A. Stokes & L. Pfeffer, Church and State in the United States, 229 (1964).
2
Ibid.
3
Deedy, Should Catholic Schools Survive?, New Republic, Mar. 13, 1971, pp. 15, 16.
4
Id., at 17.
5
Ibid.
6
Stokes & Pfeffer, supra, n. 1, at 231.
7
Id., at 231—239.
8
Id., at 237.
9
Ibid.
10
R. Butts, The American Tradition in Religion and Education 115 (1950).
11
Id., at 118. And see R. Finney, A Brief History of the American Public School 44—45 (1924).
12
See E. Knight, Education in the United States 3, 314 (3d rev. ed. 1951); E. Cubberley, Public Education in the United States 164 et seq. (1919).
13
In 1960 the Federal Government provided $500 million to private colleges and universities. Amounts contributed by state and local governments to private schools at any level were negligible. Just one decade later federal aid to private colleges and universities had grown to.$2.1 billion. State aid had begun and reached $100 million. Statistical Abstract of the United States 105 (1970). As the present cases demonstrate, we are now reaching a point where state aid is being given to private elementary and secondary schools as well as colleges and universities.
14
Deedy, supra, n. 3, at 16.
15
S. Curtis, History of Education in Great Britain 316—383 (5th ed. 1963); W. Alexander, Education in England, c II (2d ed. 1964).
16
See Pierce v. Society of Sisters, 268 U.S. 510, 534, 45 S.Ct. 571, 573, 69 L.Ed. 1070; Meyer v. Nebraska, 262 U.S. 390, 402, 43 S.Ct. 625, 627, 67 L.Ed. 1042.
17
Grants to students in the context of the problems of desegregated public schools have without exception been stricken down as tools of the forbidden discrimination. See Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256; Hall v. St. Helena Parish School Bd., D.C., 197 F.Supp. 649, aff'd, 368 U.S. 515, 82 S.Ct. 529, 7 L.Ed.2d 521; Lee v. Macon County Bd., D.C., 267 F.Supp. 458, aff'd sub nom. Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422; Poindexter v. Louisiana Financial Assistance Commission, D.C., 275 F.Supp. 833, aff'd, 389 U.S. 571, 88 S.Ct. 693, 19 L.Ed.2d 780; Brown v. South Carolina State Bd., 296 F.Supp. 199, aff'd, 393 U.S. 222, 89 S.Ct. 449, 21 L.Ed.2d 391; Coffey v. State Educ. Finance Commission, D.C., 296 F.Supp. 1389; Lee v. Macon County Bd., D.C., 231 F.Supp. 743.
18
Remonstrance 3. The Memorial and Remonstrance Against Religious Assessments has been reproduced in appendices to the opinion of Rutledge, J., in Everson, 330 U.S., at 63, 67 S.Ct., at 534, and to that of Douglas, J., in Walz, 397 U.S., at 719, 90 S.Ct., at 1437.
19
Remonstrance 11.
20
'In the parochial schools Roman Catholic indoctrination is included in every subject. History, literature, geography, civics, and science are given a Roman Catholic slant. The whole education of the child is filled with propaganda. That, of course, is the very purpose of such schools, the very reason for going to all of the work and expense of maintaining a dual school system. Their purpose is not so much to educate, but to indoctrinate and train, not to teach Scripture truths and Americanism, but to make loyal Roman Catholics. The children are regimented, and are told what to wear, what to do, and what to think.' L. Boettner, Roman Catholicism 360 (1962).
21
It was said on oral argument that the handbook shown as an exhibit in the record had been superseded. The provisions hereinafter quoted are from the handbook as it reads after all the deletions to which we were referred.
22
'The use of school time to participate in the Holy Sacrifice of the Mass on the feasts of All Saints, Ascension, and the patronal saint of the parish or school, as well as during the 40 Hours Devotion, is proper and commendable.'
1
At the time of trial, 95% of the elementary school children in private schools in Rhode Island attended Roman Catholic schools. Only nonpublic school teachers could receive the subsidy and then only if they taught in schools in which the average per pupil expenditure on secular education did not equal or exceed the average for the State's public schools. Some 250 of the 342 lay teachers employed in Rhode Island Roman Catholic schools had applied for and been declared eligible for the subsidy. To receive it the teacher must (1) have a state teaching certificate; (2) teach exclusively secular subjects taught in the State's public schools; (3) use only teaching materials approved for use in the public schools; (4) not teach religion; and (5) promise in writing not to teach a course in religion while receiving the salary supplement.
Unlike the Rhode Island case, the Pennsylvania case lacks a factual record since the complaint was dismissed on motion. We must therefore decide the constitutional challenge as addressed to the face of the Pennsylvania statute. Appellants allege that the nonpublic schools are segregated in Pennsylvania by race and religion and that the Act perpetrates and promotes the segregation of races 'with the ultimate result of promoting two school systems in Pennsylvania—a public school system predominantly black, poor and inferior and a private, subsidized school system predominantly white, affluent and superior.' Brief for Appellants Lemon et al. 9. The District Court held that appellants lacked standing to assert this equal protection claim. In my view this was plain error.
2
E. Cubberley, Public Education in the United States 17 (1919); Abington School District v. Schempp, 374 U.S. 203, 238 n. 7, 83 S.Ct. 1560, 1580, 10 L.Ed.2d 844 and authorities cited therein (Brennan, J., concurring).
3
C. Antieau, A. Downey, E. Roberts, Freedom from Federal Establishment 174 (1964).
4
B. Confrey, Secularism in American Education: Its History 127—129 (1931).
5
See generally R. Butts, The American Tradition in Religion and Education 111—145 (1950); 2 A. Stokes, Church and State in the United States 47—72 (1950); Cubberley, supra n. 2, at 155—181.
6
See Ala.Const., Art. XIV, § 263; Alaska Const., Art. VII, § 1; Ariz.Const., Art. II, § 12, Art. XI, §§ 7, 8, A.R.S.; Ark. Const., Art. XIV, § 2; Calif.Const., Art. IX, § 8; Colo.Const., Art. IX, § 7; Conn.Const., Art. VIII § 4; Del.Const., Art. X, § 3; Fla.Const., Decl. of Rights, Art. I, § 3, F.S.A.; Ga.Const., Art. VIII, § 12, par. 1; Hawaii Const., Art. IX, § 1; Idaho Const., Art. IX, § 5; Ill.Const., Art. VIII, § 3; Ind.Const., Art. 8, § 3; Kan.Const., Art. 6, § 6(c); Ky.Const., § 189; La.Const., Art. XII, § 13; Mass.Const., Amend. Art. XLVI, § 2; Mich.Const., Art. I, § 4; Minn.Const., Art. VIII, § 2; Miss.Const., Art. 8, § 208; Mo.Const., Art. IX, § 8; Mont.Const., Art. XI, § 8; Neb.Const., Art. VII, § 11; Nev.Const., Art. 11, § 10; N.H.Const., Pt. II, Art. 83; N.J.Const., Art. VIII, § 4, par. 2; N.Mex.Const., Art. XII, § 3; N.Y.Const., Art. XI, § 3; N.Car.Const., Art. IX, §§ 4, 12; N.Dak.Const., Art. VIII, § 152; Ohio Const., Art. VI, § 2; Okla.Const., Art. II, § 5; Ore.Const., Art. VII, § 2; Penn.Const., Art. 3, § 15; R.I.Const., Art. XII, § 4; S.C.Const., Art. XI, § 9; S.Dak.Const., Art. VIII, § 16; Tenn.
Const., Art. XI, § 12; Tex.Const., Art. VII, § 5; Utah Const., Art. X, § 13; Va.Const., Art. IX, § 141; Wash.Const., Art. IX, § 4; W.Va.Const., Art. XII, § 4; Wis.Const., Art. I, § 18, Art. X, § 2; Wyo.Const., Art. 7, § 8.
The overwhelming majority of these constitutional provisions either prohibit expenditures of public funds on sectarian schools, or prohibit the expenditure of public school funds for any purpose other than support of public schools. For a discussion and categorization of the various constitutional formulations, see Note, Catholic Schools and Public Money, 50 Yale L.J. 917 (1941). Many of the constitutional provisions are collected in B. Confrey, Secularism in American Education: Its History 47—125 (1931).
Many state constitutions explicitly apply the prohibition to aid to sectarian colleges and universities. See, e.g., Colo. Const., Art. IX, § 7; Idaho Const., Art. IX, § 5; Ill.Const., Art. VIII, § 3; Kan.Const., Art. 6, § 6(c); Mass.Const., Amend. Art. XLVI, § 2; Mo.Const., Art. IX, § 8; Mont.Const., Art. XI, § 8; Neb.Const., Art. VII, § 11; N.Mex.Const., Art. XII, § 3; S.C.Const., Art. XI, § 9; Utah Const., Art. X, § 13; Wyo.Const., Art. 7, § 8. At least one judicial decision construing the word 'schools' held that the word does not include colleges and universities, Opinion of the Justices, 214 Mass. 599, 102 N.E. 464 (1913), but that decision was overruled by constitutional amendment. Mass.Const., Amend. Art. XLVI, § 2.
7
See, e.g., Wright v. School Dist., 151 Kan. 485, 99 P.2d 737 (1940); Atchison, T. & S.F.R. Co. v. City of Atchison, 47 Kan. 712, 28 P. 1000 (1892); Williams v. Board of Trustees, 173 Ky. 708, 191 S.W. 507 (1917); Opinion of the Justices, 214 Mass. 599, 102 N.E. 464 (1913); Jenkins v. Inhabitants of Andover, 103 Mass. 94 (1869); Otken v. Lamkin, 56 Miss. 758 (1879); Harfst v. Hoegen, 349 Mo. 808, 163 S.W.2d 609 (1942); State ex rel. Public School Dist., etc. v. Taylor, 122 Neb. 454, 240 N.W. 573 (1932); State ex rel. Nevada Orphan Asylum v. Hallock, 16 Nev. 373 (1882); Synod of Dakota v. State, 2 S.D. 366, 50 N.W. 632 (1891).
8
'Already the Act has restricted the role of teachers. The evidence before us indicates that some otherwise qualified teachers have stopped teaching courses in religion in order to qualify for aid under the Act. One teacher, in fact, testified that he no longer prays with his class lest he endanger his subsidy.' 316 F.Supp., at 121.
9
The Office of Education stipulated as follows:
'The Office of Education is now engaged in making a series of on-site reviews of completed projects to verify that conditions under which Federal assistance was provided are being implemented. During these visits, class schedules and course descriptions contained in the school catalog are analyzed to ascertain that nothing in the nature of sectarian instruction is scheduled in any area constructed with the use of Federal funds. If there is found to be an indication that a portion of academic facilities constructed with Federal assistance is used in any way for sectarian purposes, either the questionable practice must be terminated or the institution must assume full responsibility for the cost of constructing the area involved.' App. in No. 153, p. 82 (emphasis added).
10
The plurality opinion in No. 153 would strike down the 20-year 'period of Federal interest,' 20 U.S.C. § 754(a), upon the ground that '(t)he restrictive obligations of a recipient institution under § 751(a)(2) cannot, compatibly with the Religion Clauses, expire while the building has substantial value.' 403 U.S., at 683, 91 S.Ct., at 2098. Thus the surveillance constituting the 'too close a proximity' which for me offends the Establishment Clause continues for the life of the building.
11
The Pennsylvania statute differs from Rhode Island's in providing the subsidy without regard to whether the sectarian school's average per-pupil expenditure on secular education equals or exceeds the average of the State's public schools. Nor is there any limitation of the subsidy to nonpublic schools that are financially embarrassed. Thus the statute on its face permits use of the state subsidy for the purpose of maintaining or attracting an audience for religious education, and also permits sectarian schools not needing the aid to apply it to exceed the quality of secular education provided in public schools. These features of the Pennsylvania scheme seem to me to invalidate it under the Establishment Clause as granting preferences to sectarian schools.
12
The three dissenters in Allen focused primarily on their disagreement with the Court that the textbooks provided would be secular. See 392 U.S., at 252—253, 88 S.Ct., at 1931—1932 (Black, J., dissenting); id., at 257, 88 S.Ct., at 1933 (Douglas, J., dissenting); id., at 270, 88 S.Ct. at 1940 (Fortas, J., dissenting).
13
Much of the plurality's argument is directed at establishing that the specific institutional appellees here, as well as most church-related colleges, are not sectarian in that they do not have a purpose or function to advance or propagate a specific religion. Those questions must await hearings and findings by the District Court.
1
I accept the Court's invalidation of the provision in the federal legislation whereby the restriction on the use of buildings constructed with federal funds terminates after 20 years.
2
As a postscript I should note that both the federal and state cases are decided on specified Establishment Clause considerations, without reaching the questions that would be presented if the evidence in any of these cases showed that any of the involved schools restricted entry on racial or religious grounds or required all students gaining admission to receive instruction in the tents of a particular faith. For myself, if such proof were made, the legislation would to that extent be unconstitutional.
| 23
|
403 U.S. 713
91 S.Ct. 2140
29 L.Ed.2d 822
NEW YORK TIMES COMPANY, Petitioner,v.UNITED STATES. UNITED STATES, Petitioner, v. The WASHINGTON POST COMPANY et al.
Nos. 1873, 1885.
Argued June 26, 1971.
Decided June 30, 1971.
Sol. Gen. Erwin N. Griswold, for the United States.
Alexander M. Bickel, New Haven, Conn., for the New York Times.
William R. Glendon, Washington, D.C., for the Washington Post Co.
PER CURIAM.
1
We granted certiorari, 403 U.S. 942, 943, 91 S.Ct. 2270, 2271, 29 L.Ed.2d 853 (1971) in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled 'History of U.S. Decision-Making Process on Viet Nam Policy.'
2
'Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.' Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963); see also Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). The Government 'thus carries a heavy burden of showing justification for the imposition of such a restraint.' Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971). The District Court for the Southern District of New York in the New York Times case, 328 F.Supp. 324, and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit, 446 F.2d 1327, in the Washington Post case held that the Government had not met that burden. We agree.
3
The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed. The order of the Court of Appeals for the Second Circuit is reversed, 444 F.2d 544, and the case is remanded with directions to enter a judgment affirming the judgment of the District Court for the Southern District of New York. The stays entered June 25, 1971, by the Court are vacated. The judgments shall issue forthwith.
4
So ordered.
5
Judgment of the Court of Appeals for the District of Columbia Circuit affirmed; order of the Court of Appeals for the Second Circuit reversed and case remanded with directions.
6
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring. DP I adhere to the view that the Government's case against the Washington Post should have been dismissed and that the injunction against the New York Times should have been vacated without oral argument when the cases were first presented to this Court. I believe that every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment. Furthermore, after oral argument, I agree completely that we must affirm the judgment of the Court of Appeals for the District of Columbia Circuit and reverse the judgment of the Court of Appeals for the Second Circuit for the reasons stated by my Brothers DOUGLAS and BRENNAN. In my view it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment.
7
Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.
8
In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms.1 They especially feared that the new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed: 'The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.'2 The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. 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.
9
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 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. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.
10
The Government's case here is based on premises entirely different from those that guided the Framers of the First Amendment. The Solicitor General has carefully and emphatically stated:
11
'Now, Mr. Justice (BLACK), your construction of * * * (the First Amendment) is well known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only say, Mr. Justice, that to me it is equally obvious that 'no law' does not mean 'no law', and I would seek to persuade the Court that that is true. * * * (T)here are other parts of the Constitution that grant powers and responsibilities to the Executive, and * * * the First Amendment was not intended to make it impossible for the Executive to function or to protect the security of the United States.'3
12
And the Government argues in its brief that in spite of the First Amendment, '(t)he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief.'4
13
In other words, we are asked to hold that despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of 'national security.' The Government does not even attempt to rely on any act of Congress. Instead it makes the bold and dangerously farreaching contention that the courts should take it upon themselves to 'make' a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law.5 See concurring opinion of Mr. Justice DOUGLAS, post, at 721—722. To find that the President has 'inherent power' to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make 'secure.' No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.
14
The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial Governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged. This thought was eloquently expressed in 1937 by Mr. Chief Justice Hughes—great man and great Chief Justice that he was when the Court held a man could not be punished for attending a meeting run by Communists.
15
'The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.'6
16
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK joins, concurring .
17
While I join the opinion of the Court I believe it necessary to express my views more fully.
18
It should be noted at the outset that the First Amendment provides that 'Congress shall make no law * * * abridging the freedom of speech, or of the press.' That leaves, in my view, no room for governmental restraint on the press.1
19
There is, moreover, no statute barring the publication by the press of the material which the Times and the Post seek to use. Title 18 U.S.C. § 793(e) provides that '(w)hoever having unauthorized possession of, access to, or control over any document, writing * * * or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates * * * the same to any person not entitled to receive it * * * (s)hall be fined not more than $10,000 or imprisoned not more than ten years, or both.'
20
The Government suggests that the word 'communicates' is broad enough to encompass publication.
21
There are eight sections in the chapter on espionage and censorship, §§ 792—799. In three of those eight 'publish' is specifically mentioned: § 794(b) applies to 'Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates * * * (the disposition of armed forces).'
22
Section 797 applies to whoever 'reproduces, publishes, sells, or gives away' photographs of defense installations.
23
Section 798 relating to cryptography applies to whoever: 'communicates, furnishes, transmits, or otherwise makes available * * * or publishes' the described materials.2 (Emphasis added.)
24
Thus it is apparent that Congress was capable of and did distinguish between publishing and communication in the various sections of the Espionage Act.
25
The other evidence that § 793 does not apply to the press is a rejected version of § 793. That version read: 'During any national emergency resulting from a war to which the United States is a party, or from threat of such a war, the President may, by proclamation, declare the existence of such emergency and, by proclamation, prohibit the publishing or communicating of, or the attempting to publish or communicate any information relating to the national defense which, in his judgment, is of such character that it is or might be useful to the enemy.' 55 Cong.Rec. 1763. During the debates in the Senate the First Amendment was specifically cited and that provision was defeated. 55 Cong.Rec. 2167.
26
Judge Gurfein's holding in the Times case that this Act does not apply to this case was therefore preeminently sound. Moreover, the Act of September 23, 1950, in amending 18 U.S.C. § 793 states in § 1(b) that:
27
'Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect.' 64 Stat. 987.
28
Thus Congress has been faithful to the command of the First Amendment in this area.
29
So any power that the Government possesses must come from its 'inherent power.'
30
The power to wage war is 'the power to wage war successfully.' See Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed. 1774. But the war power stems from a declaration of war. The Constitution by Art. I, § 8, gives Congress, not the President, power '(t)o declare War.' Nowhere are presidential wars authorized. We need not decide therefore what leveling effect the war power of Congress might have.
31
These disclosures3 may have a serious impact. But that is no basis for sanctioning a previous restraint on the press. As stated by Chief Justice Hughes in Near v. Minnesota ex rel. Olson, 283 U.S. 697, 719—720, 51 S.Ct. 625, 632, 75 L.Ed. 1357:
32
'While reckless assaults upon public men, and efforts to bring obloquy upon those who are endeavoring faithfully to discharge official duties, exert a baleful influence and deserve the severest condemnation in public opinion, it cannot be said that this abuse is greater, and it is believed to be less, than that which characterized the period in which our institutions took shape. Meanwhile, the administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct.'
33
As we stated only the other day in Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 '(a)ny prior restraint on expression comes to this Court with a 'heavy presumption' against its constitutional validity.'
34
The Government says that it has inherent powers to go into court and obtain an injunction to protect the national interest, which in this case is alleged to be national security.
35
Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, repudiated that expansive doctrine in no uncertain terms.
36
The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be. See T. Emerson, The System of Freedom of Expression, c. V (1970); Z. Chafee, Free Speech in the United States, c. XIII (1941). The present cases will, I think, go down in history as the most dramatic illustration of that principle. A debate of large proportions goes on in the Nation over our posture in Vietnam. That debate antedated the disclosure of the contents of the present documents. The latter are highly relevant to the debate in progress.
37
Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions there should be 'uninhibited, robust, and wide-open' debate. New York Times Co. v. Sullivan, 376 U.S. 254, 269—270, 84 S.Ct. 710, 720—721, 11 L.Ed.2d 686.
38
I would affirm the judgment of the Court of Appeals in the Post case, vacate the stay of the Court of Appeals in the Times case and direct that it affirm the District Court.
39
The stays is these cases that have been in effect for more than a week constitute a flouting of the principles of the First Amendment as interpreted in Near v. Minnesota ex rel. Olson.
40
Mr. Justice BRENNAN, concurring.
41
* I write separately in these cases only to emphasize what should be apparent: that our judgments in the present cases may not be taken to indicate the propriety, in the future, of issuing temporary stays and restraining orders to block the publication of material sought to be suppressed by the Government. So far as I can determine, never before has the United States sought to enjoin a newspaper from publishing information in its possession. The relative novelty of the questions presented, the necessary haste with which decisions were reached, the magnitude of the interests asserted, and the fact that all the parties have concentrated their arguments upon the question whether permanent restraints were proper may have justified at least some of the restraints heretofore imposed in these cases. Certainly it is difficult to fault the several courts below for seeking to assure that the issues here involved were preserved for ultimate review by this Court. But even if it be assumed that some of the interim restraints were proper in the two cases before us, that assumption has no bearing upon the propriety of similar judicial action in the future. To begin with, there has now been ample time for reflection and judgment; whatever values there may be in the preservation of novel questions for appellate review may not support any restraints in the future. More important, the First Amendment stands as an absolute bar to the imposition of judicial restraints in circumstances of the kind presented by these cases.
II
42
The error that has pervaded these cases from the outset was the granting of any injunctive relief whatsoever, interim or otherwise. The entire thrust of the Government's claim throughout these cases has been that publication of the material sought to be enjoined 'could,' or 'might,' or 'may' prejudice the national interest in various ways. But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result.* Our cases, it is true, have indicated that there is a single, extremely narrow class of cases in which the First Amendment's ban on prior judicial restraint may be overridden. Our cases have thus far indicated that such cases may arise only when the Nation 'is at war,' Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919), during which times '(n)o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.' Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931). Even if the present world situation were assumed to be tantamount to a time of war, or if the power of presently available armaments would justify even in peacetime the suppression of information that would set in motion a nuclear holocaust, in neither of these actions has the Government presented or even alleged that publication of items from or based upon the material at issue would cause the happening of an event of that nature. '(T)he chief purpose of (the First Amendment's) guaranty (is) to prevent previous restraints upon publication.' Near v. Minnesota ex rel. Olson, supra, at 713, 51 S.Ct., at 630. Thus, only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order. In no event may mere conclusions be sufficient: for if the Executive Branch seeks judicial aid in preventing publication, it must inevitably submit the basis upon which that aid is sought to scrutiny by the judiciary. And therefore, every restraint issued in this case, whatever its form, has violated the First Amendment—and not less so because that restraint was justified as necessary to afford the courts an opportunity to examine the claim more thoroughly. Unless and until the Government has clearly made out its case, the First Amendment commands that no injunction may issue.
43
Mr. Justice STEWART, with whom Mr. Justice WHITE joins, concurring.
44
In the governmental structure created by our Constitution, the Executive is endowed with enormous power in the two related areas of national defense and international relations. This power, largely unchecked by the Legislative1 and Judicial2 branches, has been pressed to the very hilt since the advent of the nuclear missile age. For better of for worse, the simple fact is that a President of the United States possesses vastly greater constitutional independence in these two vital areas of power than does, say, a prime minister of a country with a parliamentary form of government.
45
In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry—in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people.
46
Yet it is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy. Other nations can hardly deal with this Nation in an atmosphere of mutual trust unless they can be assured that their confidences will be kept. And within our own executive departments, the development of considered and intelligent international policies would be impossible if those charged with their formulation could not communicate with each other freely, frankly, and in confidence. In the area of basic national defense the frequent need for absolute secrecy is, of course, self-evident.
47
I think there can be but one answer to this dilemma, if dilemma it be. The responsibility must be where the power is.3 If the Constitution gives the Executive a large degree of unshared power in the conduct of foreign affairs and the maintenance of our national defense, then under the Constitution the Executive must have the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully. It is an awesome responsibility, requiring judgment and wisdom of a high order. I should suppose that moral, political, and practical considerations would dictate that a very first principle of that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion. I should suppose, in short, that the hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained. But be that as it may, it is clear to me that it is the constitutional duty of the Executive—as a matter of sovereign prerogative and not as a matter of law as the courts know law—through the promulgation and enforcement of executive regulations, to protect the confidentiality necessary to carry out its responsibilities in the fields of international relations and national defense.
48
This is not to say that Congress and the courts have no role to play. Undoubtedly Congress has the power to enact specific and appropriate criminal laws to protect government property and preserve government secrets. Congress has passed such laws, and several of them are of very colorable relevance to the apparent circumstances of these cases. And if a criminal prosecution is instituted, it will be the responsibility of the courts to decide the applicability of the criminal law under which the charge is brought. Moreover, if Congress should pass a specific law authorizing civil proceedings in this field, the courts would likewise have the duty to decide the constitutionality of such a law as well as its applicability to the facts proved.
49
But in the cases before us we are asked neither to construe specific regulations nor to apply specific laws. We are asked, instead, to perform a function that the Constitution gave to the Executive, not the Judiciary. We are asked, quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people. That being so, there can under the First Amendment be but one judicial resolution of the issues before us. I join the judgments of the Court.
50
Mr. Justice WHITE, with whom Mr. Justice STEWART joins, concurring.
51
I concur in today's judgments, but only because of the concededly extraordinary protection against prior restraints enjoyed by the press under our constitutional system. I do not say that in no circumstances would the First Amendment permit an injunction against publishing information about government plans or operations.1 Nor, after examining the materials the Government characterizes as the most sensitive and destructive, can I deny that revelation of these documents will do substantial damage to public interests. Indeed, I am confident that their disclosure will have that result. But I nevertheless agree that the United States has not satisfied the very heavy burden that it must meet to warrant an injunction against publication in these cases, at least in the absence of express and appropriately limited congressional authorization for prior restraints in circumstances such as these.
52
The Government's position is simply stated: The responsibility of the Executive for the conduct of the foreign affairs and for the security of the Nation is so basic that the President is entitled to an injunction against publication of a newspaper story whenever he can convince a court that the information to be revealed threatens 'grave and irreparable' injury to the public interest;2 and the injunction should issue whether or not the material to be published is classified, whether or not publication would be lawful under relevant criminal statutes enacted by Congress, and regardless of the circumstances by which the newspaper came into possession of the information.
53
At least in the absence of legislation by Congress, based on its own investigations and findings, I am quite unable to agree that the inherent powers of the Executive and the courts reach so far as to authorize remedies having such sweeping potential for inhibiting publications by the press. Much of the difficulty inheres in the 'grave and irreparable danger' standard suggested by the United States. If the United States were to have judgment under such a standard in these cases, our decision would be of little guidance to other courts in other cases, for the material at issue here would not be available from the Court's opinion or from public records, nor would it be published by the press. Indeed, even today where we hold that the United States has not met its burden, the material remains sealed in court records and it is properly not discussed in today's opinions. Moreover, because the material poses substantial dangers to national interests and because of the hazards of criminal sanctions, a responsible press may choose never to publish the more sensitive materials. To sustain the Government in these cases would start the courts down a long and hazardous road that I am not willing to travel, at least without congressional guidance and direction.
54
It is not easy to reject the proposition urged by the United States and to deny relief on its good-faith claims in these cases that publication will work serious damage to the country. But that discomfiture is considerably dispelled by the infrequency of prior-restraint cases. Normally, publication will occur and the damage be done before the Government has either opportunity or grounds for suppression. So here, publication has already begun and a substantial part of the threatened damage has already occurred. The fact of a massive breakdown in security is known, access to the documents by many unauthorized people is undeniable, and the efficacy of equitable relief against these or other newspapers to avert anticipated damage is doubtful at best.
55
What is more, terminating the ban on publication of the relatively few sensitive documents the Government now seeks to suppress does not mean that the law either requires or invites newspapers or others to publish them or that they will be immune from criminal action if they do. Prior restraints require an unusually heavy justification under the First Amendment; but failure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication. That the Government mistakenly chose to proceed by injunction does not mean that it could not successfully proceed in another way.
56
When the Espionage Act was under consideration in 1917, Congress eliminated from the bill a provision that would have given the President broad powers in time of war to proscribe, under threat of criminal penalty, the publication of various categories of information related to the national defense.3 Congress at that time was unwilling to clothe the President with such far-reaching powers to monitor the press, and those opposed to this part of the legislation assumed that a necessary concomitant of such power was the power to 'filter out the news to the people through some man.' 55 Cong.Rec. 2008 (remarks of Sen. Ashurst). However, these same members of Congress appeared to have little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing information of the type Congress had itself determined should not be revealed. Senator Ashurst, for example, was quite sure that the editor of such a newspaper 'should be punished if he did publish information as to the movements of the fleet, the troops, the aircraft, the location of powder factories, the location of defense works, and all that sort of thing.' Id., at 2009.4
57
The Criminal Code contains numerous provisions potentially relevant to these cases. Section 7975 makes it a crime to publish certain photographs or drawings of military installations. Section 798,6 also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations.7 If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.
58
The same would be true under those sections of the Criminal Code casting a wider net to protect the national defense. Section 793(e)8 makes it a criminal act for any unauthorized possessor of a document 'relating to the national defense' either (1) willfully to communicate or cause to be communicated that document to any person not entitled to receive it or (2) willfully to retain the document and fail to deliver it to an officer of the United States entitled to receive it. The subsection was added in 1950 because pre-existing law provided no penalty for the unauthorized possessor unless demand for the documents was made.9 'The dangers surrounding the unauthorized possession of such items are selfevident, and it is deemed advisable to require their surrender in such a case, regardless of demand, especially since their unauthorized possession may be unknown to the authorities who would otherwise make the demand.' S.Rep.No. 2369, pt. 1, 81st Cong., 2d Sess., 9 (1950). Of course, in the cases before us, the unpublished documents have been demanded by the United States and their import has been made known at least to counsel for the newspapers involved. In Gorin v. United States, 312 U.S. 19, 28, 61 S.Ct. 429, 434, 85 L.Ed. 488 (1941), the words 'national defense' as used in a predecessor of § 793 were held by a unanimous Court to have 'a well understood connotation'—a 'generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness'—and to be 'sufficiently definite to apprise the public of prohibited activities' and to be consonant with due process. 312 U.S., at 28, 61 S.Ct., at 434. Also, as construed by the Court in Gorin, information 'connected with the national defense' is obviously not limited to that threatening 'grave and irreparable' injury to the United States.10
59
It is thus clear that Congress has addressed itself to the problems of protecting the security of the country and the national defense from unauthorized disclosure of potentially damaging information. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585—586, 72 S.Ct. 863, 865—866, 96 L.Ed. 1153 (1953); see also id., at 593—628, 72 S.Ct., at 888—928 (Frankfurter, J., concurring). It has not, however, authorized the injunctive remedy against threatened publication. It has apparently been satisfied to rely on criminal sanctions and their deterrent effect on the responsible as well as the irresponsible press. I am not, of course, saying that either of these newspapers has yet committed a crime or that either would commit a crime if it published all the material now in its possession. That matter must await resolution in the context of a criminal proceeding if one is instituted by the United States. In that event, the issue of guilt or innocence would be determined by procedures and standards quite different from those that have purported to govern these injunctive proceedings.
60
Mr. Justice MARSHALL, concurring.
61
The Government contends that the only issue in these cases is whether in a suit by the United States, 'the First Amendment bars a court from prohibiting a newspaper from publishing material whose disclosure would pose a 'grave and immediate danger to the security of the United States." Brief for the United States 7. With all due respect, I believe the ultimate issue in this case is even more basic than the one posed by the Solicitor General. The issue is whether this Court or the Congress has the power to make law.
62
In these cases there is no problem concerning the President's power to classify information as 'secret' or 'top secret.' Congress has specifically recognized Presidential authority, which has been formally exercised in Exec. Order 10501 (1953), to classify documents and information. See, e.g., 18 U.S.C. § 798; 50 U.S.C. § 783.1 Nor is there any issue here regarding the President's power as Chief Executive and Commander in Chief to protect national security by disciplining employees who disclose information and by taking precautions to prevent leaks.
63
The problem here is whether in these particular cases the Executive Branch has authority to invoke the equity jurisdiction of the courts to protect what it believes to be the national interest. See In re Debs, 158 U.S. 564, 584, 15 S.Ct. 900, 906, 39 L.Ed. 1092 (1895). The Government argues that in addition to the inherent power of any government to protect itself, the President's power to conduct foreign affairs and his position as Commander in Chief give him authority to impose censorship on the press to protect his ability to deal effectively with foreign nations and to conduct the military affairs of the country. Of course, it is beyond cavil that the President has broad powers by virtue of his primary responsibility for the conduct of our foreign affairs and his position as Commander in Chief. Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948); Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed. 1774 (1943); United States v. CurtissWright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936).2 And in some situations it may be that under whatever inherent powers the Government may have, as well as the implicit authority derived from the President's mandate to conduct foreign affairs and to act as Commander in Chief, there is a basis for the invocation of the equity jurisdiction of this Court as an aid to prevent the publication of material damaging to 'national security,' however that term may be defined.
64
It would, however, be utterly inconsistent with the concept of separation of powers for this Court to use its power of contempt to prevent behavior that Congress has specifically declined to prohibit. There would be a similar damage to the basic concept of these co-equal branches of Government if when the Executive Branch has adequate authority granted by Congress to protect 'national security' it can choose instead to invoke the contempt power of a court to enjoin the threatened conduct. The Constitution provides that Congress shall make laws, the President execute laws, and courts interpret laws. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). It did not provide for government by injunction in which the courts and the Executive Branch can 'make law' without regard to the action of Congress. It may be more convenient for the Executive Branch if it need only convince a judge to prohibit conduct rather than ask the Congress to pass a law, and it may be more convenient to enforce a contempt order than to seek a criminal conviction in a jury trial. Moreover, it may be considered politically wise to get a court to share the responsibility for arresting those who the Executive Branch has probable cause to believe are violating the law. But convenience and political considerations of the moment do not justify a basic departure from the principles of our system of government.
65
In these cases we are not faced with a situation where Congress has failed to provide the Executive with broad power to protect the Nation from disclosure of damaging state secrets. Congress has on several occasions given extensive consideration to the problem of protecting the military and strategic secrets of the United States. This consideration has resulted in the enactment of statutes making it a crime to receive, disclose, communicate, withhold, and publish certain documents, photographs, instruments, appliances, and information. The bulk of these statutes is found in chapter 37 of U.S.C., Title 18, entitled Espionage and Censorship.3 In that chapter, Congress has provided penalties ranging from a $10,000 fine to death for violating the various statutes.
66
Thus it would seem that in order for this Court to issue an injunction it would require a showing that such an injunction would enhance the already existing power of the Government to act. See People ex rel. Bennett v. Laman, 277 N.Y. 368, 14 N.E.2d 439 (1938). It is a traditional axiom of equity that a court of equity will not do a useless thing just as it is a traditional axiom that equity will not enjoin the commission of a crime. See Z. Chafee & E. Re, Equity 935—954 (5th ed. 1967); 1 H. Joyce, Injunctions §§ 58—60a (1909). Here there has been no attempt to make such a showing. The Solicitor General does not even mention in his brief whether the Government considers that there is probable cause to believe a crime has been committed or whether there is a conspiracy to commit future crimes.
67
If the Government had attempted to show that there was no effective remedy under traditional criminal law, it would have had to show that there is no arguably applicable statute. Of course, at this stage this Court could not and cannot determine whether there has been a violation of a particular statute or decide the constitutionality of any statute. Whether a good-faith prosecution could have been instituted under any statute could, however, be determined.
68
At least one of the many statutes in this area seems relevant to these cases. Congress has provided in 18 U.S.C. § 793(e) that whoever 'having unauthorized possession of, access to, or control over any document, writing, code book, signal book * * * or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits * * * the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it * * * (s)hall be fined not more than $10,000 or imprisoned not more than ten years, or both.' Congress has also made it a crime to conspire to commit any of the offenses listed in 18 U.S.C. § 793(e).
69
It is true that Judge Gurfein found that Congress had not made it a crime to publish the items and material specified in § 793(e). He found that the words 'communicates, delivers, transmits * * *' did not refer to publication of newspaper stories. And that view has some support in the legislative history and conforms with the past practice of using the statute only to prosecute those charged with ordinary espionage. But see 103 Cong.Rec. 10449 (remarks of Sen. Humphrey). Judge Gurfein's view of the Statute is not, however, the only plausible construction that could be given. See my Brother WHITE's concurring opinion.
70
Even if it is determined that the Government could not in good faith bring criminal prosecutions against the New York Times and the Washington Post, it is clear that Congress has specifically rejected passing legislation that would have clearly given the President the power he seeks here and made the current activity of the newspapers unlawful. When Congress specifically declines to make conduct unlawful it is not for this Court to redecide those issues—to overrule Congress. See Youngtown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952).
71
On at least two occasions Congress has refused to enact legislation that would have made the conduct engaged in here unlawful and given the President the power that he seeks in this case. In 1917 during the debate over the original Espionage Act, still the basic provisions of § 793, Congress rejected a proposal to give the President in time of war or threat of war authority to directly prohibit by proclamation the publication of information relating to national defense that might be useful to the enemy. The proposal provided that:
72
'During any national emergency resulting from a war to which the United States is a party, or from threat of such a war, the President may, by proclamation, declare the existence of such emergency and, by proclamation, prohibit the publishing or communicating of, or the attempting to publish or communicate any information relating to the national defense which, in his judgment, is of such character that it is or might be useful to the enemy. Whoever violates any such prohibition shall be punished by a fine of not more than $10,000 or by imprisonment for not more than 10 years, or both: Provided, that nothing in this section shall be construed to limit or restrict any discussion, comment, or criticism of the acts or policies of the Government or its representatives or the publication of the same.' 55 Cong.Rec. 1763.
73
Congress rejected this proposal after war against Germany had been declared even though many believed that there was a grave national emergency and that the threat of security leaks and espionage was serious. The Executive Branch has not gone to Congress and requested that the decision to provide such power be reconsidered. Instead, the Executive Branch comes to this Court and asks that it be granted the power Congress refused to give.
74
In 1957 the United States Commission on Government Security found that '(a) irplane journals, scientific periodicals, and even the daily newspaper have featured articles containing information and other data which should have been deleted in whole or in part for security reasons.' In response to this problem the Commission proposed that 'Congress enact legislation making it a crime for any person willfully to disclose without proper authorization, for any purpose whatever, information classified 'secret' or 'top secret,' knowing, or having reasonable grounds to believe, such information to have been so classified.' Report of Commission on Government Security 619—620 (1957). After substantial floor discussion on the proposal, it was rejected. See 103 Cong.Rec. 10447—10450. If the proposal that Sen. Cotton championed on the floor had been enacted, the publication of the documents involved here would certainly have been a crime. Congress refused, however, to make it a crime. The Government is here asking this Court to remake that decision. This Court has no such power.
75
Either the Government has the power under statutory grant to use traditional criminal law to protect the country or, if there is no basis for arguing that Congress has made the activity a crime, it is plain that Congress has specifically refused to grant the authority the Government seeks from this Court. In either case this Court does not have authority to grant the requested relief. It is not for this Court to fling itself into every breach perceived by some Government official nor is it for this Court to take on itself the burden of enacting law, especially a law that Congress has refused to pass.
76
I believe that the judgment of the United States Court of Appeals for the District of Columbia Circuit should be affirmed and the judgment of the United States Court of Appeals for the Second Circuit should be reversed insofar as it remands the case for further hearings.
77
Mr. Chief Justice BURGER, dissenting.
78
So clear are the constitutional limitations on prior restraint against expression, that from the time of Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), until recently in Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971), we have had little occasion to be concerned with cases involving prior restraints against news reporting on matters of public interest. There is, therefore, little variation among the members of the Court in terms of resistance to prior restraints against publication. Adherence to this basic constitutional principle, however, does not make these cases simple ones. In these cases, the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government and specifically the effective exercise of certain constitutional powers of the Executive. Only those who view the First Amendment as an absolute in all circumstances—a view I respect, but reject—can find such cases as these to be simple or easy.
79
These cases are not simple for another and more immediate reason. We do not know the facts of the cases. No District Judge knew all the facts. No Court of Appeals Judge knew all the facts. No member of this Court knows all the facts.
80
Why are we in this posture, in which only those judges to whom the First Amendment is absolute and permits of no restraint in any circumstances or for any reason, are really in a position to act?
81
I suggest we are in this posture because these cases have been conducted in unseemly haste. Mr. Justice HARLAN covers the chronology of events demonstrating the hectic pressures under which these cases have been processed and I need not restate them. The prompt settling of these cases reflects our universal abhorrence of prior restraint. But prompt judicial action does not mean unjudicial haste.
82
Here, moreover, the frenetic haste is due in large part to the manner in which the Times proceeded from the date it obtained the purloined documents. It seems reasonably clear now that the haste precluded reasonable and deliberate judicial treatment of these cases and was not warranted. The precipitate action of this Court aborting trials not yet completed is not the kind of judicial conduct that ought to attend the disposition of a great issue.
83
The newspapers make a derivative claim under the First Amendment; they denominate this right as the public 'right to know'; by implication, the Times asserts a sole trusteenship of that right by virtue of its journalistic 'scoop.' The right is asserted as an absolute. Of course, the First Amendment right itself is not an absolute, as Justice Holmes so long ago pointed out in his aphorism concerning the right to shout 'fire' in a crowded theater if there was no fire. There are other exceptions, some of which Chief Justice Hughes mentioned by way of example in Near v. Minnesota ex rel. Olson. There are no doubt other exceptions no one has had occasion to describe or discuss. Conceivably such exceptions may be lurking in these cases and would have been flushed had they been properly considered in the trial courts, free from unwarranted deadlines and frenetic pressures. An issue of this importance should be tried and heard in a judicial atmosphere conducive to thoughtful, reflective deliberation, especially when haste, in terms of hours, is unwarranted in light of the long period the Times, by its own choice, deferred publication.1
84
It is not disputed that the Times has had unauthorized possession of the documents for three to four months, during which it has had its expert analysts studying them, presumably digesting them and preparing the material for publication. During all of this time, the Times, presumably in its capacity as trustee of the public's 'right to know,' has held up publication for purposes it considered proper and thus public knowledge was delayed. No doubt this was for a good reason; the analysis of 7,000 pages of complex material drawn from a vastly greater volume of material would inevitably take time and the writing of good news stories takes time. But why should the United States Government, from whom this information was illegally acquired by someone, along with all the counsel, trial judges, and appellate judges be placed under needless pressure? After these months of deferral, the alleged 'right to know' has somehow and suddenly become a right that must be vindicated instanter.
85
Would it have been unreasonable, since the newspaper could anticipate the Government's objections to release of secret material, to give the Government an opportunity to review the entire collection and determine whether agreement could be reached on publication? Stolen or not, if security was not in fact jeopardized, much of the material could not doubt have been declassified, since it spans a period ending in 1968. With such an approach—one that great newspapers have in the past practiced and stated editorially to be the duty of an honorable press—the newspapers and Government might well have narrowed the area of disagreement as to what was and was not publishable, leaving the remainder to be resolved in orderly litigation, if necessary. To me it is hardly believable that a newspaper long regarded as a great institution in American life would fail to perform one of the basic and simple duties of every citizen with respect to the discovery or possession of stolen property or secret government documents. That duty, I had thought perhaps naively—was to report forthwith, to responsible public officers. This duty rests on taxi drivers, Justices, and the New York Times. The course followed by the Times, whether so calculated or not, removed any possibility of orderly litigation of the issues. If the action of the judges up to now has been correct, that result is sheer happenstance.2
86
Our grant of the writ of certiorari before final judgment in the Times case aborted the trial in the District Court before it had made a complete record pursuant to the mandate of the Court of Appeals for the Second Circuit.
87
The consequence of all this melancholy series of events is that we literally do not know what we are acting on. As I see it, we have been forced to deal with litigation concerning rights of great magnitude without an adequate record, and surely without time for adequate treatment either in the prior proceedings or in this Court. It is interesting to note that counsel, on both sides, in oral argument before this Court, were frequently unable to respond to questions on factual points. Not surprisingly they pointed out that they had been working literally 'around the clock' and simply were unable to review the documents that give rise to these cases and were not familiar with them. This Court is in no better posture. I agree generally with Mr. Justice HARLAN and Mr. Justice BLACKMUN but I am not prepared to reach the merits.3
88
I would affirm the Court of Appeals for the Second Circuit and allow the District Court to complete the trial aborted by our grant of certiorari, meanwhile preserving the status quo in the post case. I would direct that the District Court on remand give priority to the Times case to the exclusion of all other business of that court but I would not set arbitrary deadlines.
89
I should add that I am in general agreement with much of what Mr. Justice WHITE has expressed with respect to penal sanctions concerning communication or retention of documents or information relating to the national defense.
90
We all crave speedier judicial processes but when judges are pressured as in these cases the result is a parody of the judicial function.
91
Mr. Justice HARLAN, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, dissenting.
92
These cases forcefully call to mind the wise admonition of Mr. Justice Holmes, dissenting in Northern Securities Co. v. United States, 193 U.S. 197, 400—401, 24 S.Ct. 436, 468, 48 L.Ed. 679 (1904):
93
'Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the futture, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.'
94
With all respect, I consider that the Court has been almost irresponsibly feverish in dealing with these cases.
95
Both the Court of Appeals for the Second Circuit and the Court of Appeals for the District of Columbia Circuit rendered judgment on June 23. The New York Times' petition for certiorari, its motion for accelerated consideration thereof, and its application for interim relief were filed in this Court on June 24 at about 11 a.m. The application of the United States for interim relief in the Post case was also filed here on June 24 at about 7:15 p.m. This Court's order setting a hearing before us on June 26 at 11 a.m., a course which I joined only to avoid the possibility of even more peremptory action by the Court, was issued less than 24 hours before. The record in the Post case was filed with the Clerk shortly before 1 p.m. on June 25; the record in the Times case did not arrive until 7 or 8 o'clock that same night. The briefs of the parties were received less than two hours before argument on June 26.
96
This frenzied train of events took place in the name of the presumption against prior restraints created by the First Amendment. Due regard for the extraordinarily important and difficult questions involved in these litigations should have led the Court to shun such a precipitate timetable. In order to decide the merits of these cases properly, some or all of the following questions should have been faced:
97
1. Whether the Attorney General is authorized to bring these suits in the name of the United States. Compare In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092 (1895), with Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). This question involves as well the construction and validity of a singularly opaque statute—the Espionage Act, 18 U.S.C. § 793(e).
98
2. Whether the First Amendment permits the federal courts to enjoin publication of stories which would present a serious threat to national security. See Near v. Minnesota, ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931) (dictum).
99
3. Whether the threat to publish highly secret documents is of itself a sufficient implication of national security to justify an injunction on the theory that regardless of the contents of the documents harm enough results simply from the demonstration of such a breach of secrecy.
100
4. Whether the unauthorized disclosure of any of these particular documents would seriously impair the national security.
101
5. What weight should be given to the opinion of high officers in the Executive Branch of the Government with respect to questions 3 and 4.
102
6. Whether the newspapers are entitled to retain and use the documents notwithstanding the seemingly uncontested facts that the documents, or the originals of which they are duplicates, were purloined from the Government's possession and that the newspapers received them with knowledge that they had been feloniously acquired. Cf. Liberty Lobby, Inc. v. Pearson, 129 U.S.App.D.C. 74, 390 F.2d 489 (1967, amended 1968).
103
7. Whether the threatened harm to the national security or the Government's possessory interest in the documents justifies the issuance of an injunction against publication in light of—
104
a. The strong First Amendment policy against prior restraints on publication; b. The doctrine against enjoining conduct in violation of criminal statutes; and
105
c. The extent to which the materials at issue have apparently already been otherwise disseminated.
106
These are difficult questions of fact, of law, and of judgment; the potential consequences of erroneous decision are enormous. The time which has been available to us, to the lower courts,* and to the parties has been wholly inadequate for giving these cases the kind of consideration they deserve. It is a reflection on the stability of the judicial process that these great issues—as important as any that have arisen during my time on the Court—should have been decided under the pressures engendered by th torrent of publicity that has attended these litigations from their inception.
107
Forced as I am to reach the merits of these cases, I dissent from the opinion and judgments of the Court. Within the severe limitations imposed by the time constraints under which I have been required to operate, I can only state my reasons in telescoped form, even though in different circumstances I would have felt constrained to deal with the cases in the fuller sweep indicated above.
108
It is a sufficient basis for affirming the Court of Appeals for the Second Circuit in the Times litigation to observe that its order must rest on the conclusion that because of the time elements the Government had not been given an adequate opportunity to present its case to the District Court. At the least this conclusion was not an abuse of discretion.
109
In the Post litigation the Government had more time to prepare; this was apparently the basis for the refusal of the Court of Appeals for the District of Columbia Circuit on rehearing to conform its judgment to that of the Second Circuit. But I think there is another and more fundamental reason why this judgment cannot stand—a reason which also furnishes an additional ground for not reinstating the judgment of the District Court in the Times litigation, set aside by the Court of Appeals. It is plain to me that the scope of the judicial function in passing upon the activities of the Executive Branch of the Government in the field of foreign affairs is very narrowly restricted. This view is, I think, dictated by the concept of separation of powers upon which our constitutional system rests.
110
In a speech on the floor of the House of Representatives, Chief Justice John Marshall, then a member of that body, stated:
111
'The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.' 10 Annals of Cong. 613.
112
From that time, shortly after the founding of the Nation, to this, there has been no substantial challenge to this description of the scope of executive power. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319—321, 57 S.Ct. 216, 220—221, 81 L.Ed. 255 (1936), collecting authorities.
113
From this constitutional primacy in the field of foreign affairs, it seems to me that certain conclusions necessarily follow. Some of these were stated concisely by President Washington, declining the request of the House of Representatives for the papers leading up to the negotiation of the Jay Treaty:
114
'The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic; for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers.' 1 J. Richardson, Messages and Papers of the Presidents 194—195 (1896).
115
The power to evaluate the 'pernicious influence' of premature disclosure is not, however, lodged in the Executive alone. I agree that, in performance of its duty to protect the values of the First Amendment against political pressures, the judiciary must review the initial Executive determination to the point of satisfying itself that the subject matter of the dispute does lie within the proper compass of the President's foreign relations power. Constitutional considerations forbid 'a complete abandonment of judicial control.' Cf. United States v. Reynolds, 345 U.S. 1, 8, 73 S.Ct. 528, 532, 97 L.Ed. 727 (1953). Moreover the judiciary may properly insist that the determination that disclosure of the subject matter would irreparably impair the national security be made by the head of the Executive Department concerned—here the Secretary of State or the Secretary of Defense after actual personal consideration by that officer. This safeguard is required in the analogous area of executive claims of privilege for secrets of state. See id., at 8 and n. 20, 73 S.Ct., at 532; Duncan v. Cammell, Laird & Co., (1942) A.C. 624, 638 (House of Lords).
116
But in my judgment the judiciary may not properly go beyond these two inquiries and redetermine for itself the probable impact of disclosure on the national security.
117
'(T)he very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.' Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568 (1948) (Jackson J.).
118
Even if there is some room for the judiciary to override the executive determination, it is plain that the scope of review must be exceedingly narrow. I can see no indication in the opinions of either the District Court or the Court of Appeals in the Post litigation that the conclusions of the Executive were given even the deference owing to an administrative agency, much less that owing to a co-equal branch of the Government operating within the field of its constitutional prerogative.
119
Accordingly, I would vacate the judgment of the Court of Appeals for the District of Columbia Circuit on this ground and remand the case for further proceedings in the District Court. Before the commencement of such further proceedings, due opportunity should be afforded the Government for procuring from the Secretary of State or the Secretary of Defense or both an expression of their views on the issue of national security. The ensuing review by the District Court should be in accordance with the views expressed in this opinion. And for the reasons stated above I would affirm the judgment of the Court of Appeals for the Second Circuit.
120
Pending further hearings in each case conducted under the appropriate ground rules, I would continue the restraints on publication. I cannot believe that the doctrine prohibiting prior restraints reaches to the point of preventing courts from maintaining the status quo long enough to act responsibly in matters of such national importance as those involved here.
121
Mr. Justice BLACKMUN, dissenting.
122
I join Mr. Justice HARLAN in his dissent. I also am in substantial accord with much that Mr. Justice WHITE says, by way of admonition, in the latter part of his opinion.
123
At this point the focus is on only the comparatively few documents specified by the Government as critical. So far as the other material—vast in amount—is concerned, let it be published and published forthwith if the newspapers, once the strain is gone and the sensationalism is eased, still feel the urge so to do.
124
But we are concerned here with the few documents specified from the 47 volumes. Almost 70 years ago Mr. Justice Holmes, dissenting in a celebrated case, observed:
125
'Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure * * *.' Northern Securities Co. v. United States, 193 U.S. 197, 400—401, 24 S.Ct. 436, 468, 48 L.Ed. 679 (1904).
126
The present cases, if not great, are at least unusual in their posture and implications, and the Holmes observation certainly has pertinent application.
127
The New York Times clandestinely devoted a period of three months to examining the 47 volumes that came into its unauthorized possession. Once it had begun publication of material from those volumes, the New York case now before us emerged. It immediately assumed, and ever since has maintained, a frenetic pace and character. Seemingly once publication started, the material could not be made public fast enough. Seemingly, from then on, every deferral or delay, by restraint or otherwise, was abhorrent and was to be deemed violative of the First Amendment and of the public's 'right immediately to know.' Yet that newspaper stood before us at oral argument and professed criticism of the Government for not lodging its protest earlier than by a Monday telegram following the initial Sunday publication.
128
The District of Columbia case is much the same.
129
Two federal district courts, two United States courts of appeals, and this Court—within a period of less than three weeks from inception until today—have been pressed into hurried decision of profound constitutional issues on inadequately developed and largely assumed facts without the careful deliberation that, one would hope, should characterize the American judicial process. There has been much writing about the law and little knowledge and less digestion of the facts. In the New York case the judges, both trial and appellate, had not yet examined the basic material when the case was brought here. In the District of Columbia case, little more was done, and what was accomplished in this respect was only on required remand, with the Washington Post, on the axcuse that it was trying to protect its source of information, initially refusing to reveal what material it actually possessed, and with the District Court forced to make assumptions as to that possession.
130
With such respect as may be due to the contrary view, this, in my opinion, is not the way to try a lawsuit of this magnitude and asserted importance. It is not the way for federal courts to adjudicate, and to be required to adjudicate, issues that allegedly concern the Nation's vital welfare. The country would be none the worse off were the cases tried quickly, to be sure, but in the customary and properly deliberative manner. The most recent of the material, it is said, dates no later than 1968, already about three years ago, and the Times itself took three months to formulate its plan of procedure and, thus, deprived its public for that period.
131
The First Amendment, after all, is only one part of an entire Constitution. Article II of the great document vests in the Executive Branch primary power over the conduct of foreign affairs and places in that branch the responsibility for the Nation's safety. Each provision of the Constitution is important, and I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of downgrading other provisions. First Amendment absolutism has never commanded a majority of this Court. See, for example, Near v. Minnesota, ex rel. Olson, 283 U.S. 697, 708, 51 S.Ct. 625, 628, 75 L.Ed. 1357 (1931), and Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919). What is needed here is a weighing, upon properly developed standards, of the broad right of the press to print and of the very narrow right of the Government to prevent. Such standards are not yet developed. The parties here are in disagreement as to what those standards should be. But even the newspapers concede that there are situations where restraint is in order and is constitutional. Mr. Justice Holmes gave us a suggestion when he said in Schenck,
132
'It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' 249 U.S., at 52, 39 S.Ct., at 249.
133
I therefore would remand these cases to be developed expeditiously, of course, but on a schedule permitting the orderly presentation of evidence from both sides, with the use of discovery, if necessary, as authorized by the rules, and with the preparation of briefs, oral argument, and court opinions of a quality better than has been seen to this point. In making this last statement, I criticize no lawyer or judge. I know from past personal experience the agony of time pressure in the preparation of litigation. But these cases and the issues involved and the courts, including this one, deserve better than has been produced thus far.
134
It may well be that if these cases were allowed to develop as they should be developed, and to be tried as lawyers should try them and as courts should hear them, free of pressure and panic and sensationalism, other light would be shed on the situation and contrary considerations, for me, might prevail. But that is not the present posture of the litigation.
135
The Court, however, decides the cases today the other way. I therefore add one final comment.
136
I strongly urge, and sincerely hope, that these two newspapers will be fully aware of their ultimate responsibilities to the United States of America. Judge Wilkey, dissenting in the District of Columbia case, after a review of only the affidavits before his court (the basic papers had not then been made available by either party), concluded that there were a number of examples of documents that, if in the possession of the Post, and if published, 'could clearly result in great harm to the nation,' and he defined 'harm' to mean 'the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate * * *.' I, for one, have now been able to give at least some cursory study not only to the affidavits, but to the material itself. I regreat to say that from this examination I fear that Judge Wilkey's statements have possible foundation. I therefore share his concern. I hope that damage has not already been done. If, however, damage has been done, and if, with the Court's action today, these newspapers proceed to publish the critical documents and there results therefrom 'the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate,' to which list I might add the factors of prolongation of the war and of further delay in the freeing of United States prisoners, then the Nation's people will know where the responsibility for these sad consequences rests.
1
In introducing the Bill of Rights in the House of Representatives, Madison said: '(B)ut I believe that the great mass of the people who opposed (the Constitution), disliked it because it did not contain effectual provisions against the encroachments on particular rights * * *.' 1 Annals of Cong. 433. Congressman Goodhue added: '(I)t is the wish of many of our constituents, that something should be added to the Constitution, to secure in a stronger manner their liberties from the inroads of power.' Id., at 426.
2
The other parts were:
'The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.'
'The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.' 1 Annals of Cong. 434.
3
Tr. of Oral Arg. 76.
4
Brief for the United States 13—14.
5
Compare the views of the Solicitor General with those of James Madison, the author of the First Amendment. When speaking of the Bill of Rights in the House of Representatives, Madison said: 'If they (the first ten amendments) are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.' 1 Annals of Cong. 439.
6
De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278.
1
See Beauharnais v. Illinois, 343 U.S. 250, 267, 72 S.Ct. 725, 736, 96 L.Ed. 919 (dissenting opinion of Mr. Justice Black), 284, 72 S.Ct. 744 (my dissenting opinion); Roth v. United States, 354 U.S. 476, 508, 77 S.Ct. 1304, 1321, 1 L.Ed.2d 1498 (my dissenting opinion which Mr. Justice Black joined); Yates v. United States, 354 U.S. 298, 339, 77 S.Ct. 1064, 1087, 1 L.Ed.2d 1356 (separate opinion of Mr. Justice Black which I joined); New York Times Co. v. Sullivan, 376 U.S. 254, 293, 84 S.Ct. 710, 733, 11 L.Ed.2d 686 (concurring opinion of Mr. Justice Black which I joined); Garrison v. Louisiana, 379 U.S. 64, 80, 85 S.Ct. 209, 218, 13 L.Ed.2d 125 (my concurring opinion which Mr. Justice Black joined).
2
These documents contain data concerning the communications system of the United States, the publication of which is made a crime. But the criminal sanction is not urged by the United States as the basis of equity power.
3
There are numerous sets of this material in existence and they apparently are not under any controlled custody. Moreover, the President has sent a set to the Congress. We start then with a case where there already is rather wide distribution of the material that is destined for publicity, not secrecy. I have gone over the material listed in the in camera brief of the United States. It is all history, not future events. None of it is more recent than 1968.
*
Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and similar cases regarding temporary restraints of allegedly obscene materials are not in point. For those cases rest upon the proposition that 'obscenity is not protected by the freedoms of speech and press.' Roth v. United States, 354 U.S. 476, 481, 77 S.Ct. 1304, 1307, 1 L.Ed.2d 1498 (1957). Here there is no question but that the material sought to be suppressed is within the protection of the First Amendment; the only question is whether, notwithstanding that fact, its publication may be enjoined for a time because of the presence of an overwhelming national interest. Similarly, copyright cases have no pertinence here: the Government is not asserting an interest in the particular form of words chosen in the documents, but is seeking to suppress the ideas expressed therein. And the copyright laws, of course, protect only the form of expression and not the ideas expressed.
1
The President's power to make treaties and to appoint ambassadors is, of course, limited by the requirement of Art. II, § 2, of the Constitution that he obtain the advice and consent of the Senate. Article I, § 8, empowers Congress to 'raise and support Armies,' and 'provide and maintain a Navy.' And, of course, Congress alone can declare war. This power was last exercised almost 30 years ago at the inception of World War II. Since the end of that war in 1945, the Armed Forces of the United States have suffered approximately half a million casualties in various parts of the world.
2
See Chicago & Southern Air Lines Inc. v. Waterman S.S. Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568; Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774; United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255; cf. Mora v. McNamara, 389 U.S. 934, 88 S.Ct. 282, 19 L.Ed.2d 287 (Stewart, J., dissenting).
3
'It is quite apparent that if, in the maintenance of our international relations, embarrassment—perhaps serious embarrassment—is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Representatives the instructions, correspondence and documents relating to the negotiation of the Jay Treaty—a refusal the wisdom of which was recognized by the House itself and has never since been doubted. * * *' United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320, 57 S.Ct. 216, 221, 81 L.Ed. 255.
1
The Congress has authorized a strain of prior restraints against private parties in certain instances. The National Labor Relations Board routinely issues cease-and-desist orders against employers who it finds have threatened or coerced employees in the exercise of protected rights. See 29 U.S.C. § 160(c). Similarly, the Federal Trade Commission is empowered to impose cease-and-desist orders against unfair methods of competition. 15 U.S.C. § 45(b). Such orders can, and quite often do, restrict what may be spoken or written under certain circumstances. See, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 616—620, 89 S.Ct. 1918, 1941—1943, 23 L.Ed.2d 547 (1969). Article I, § 8, of the Constitution authorizes Congress to secure the 'exclusive right' of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another. See L. A. Westermann Co. v. Dispatch Printing Co., 249 U.S. 100, 39 S.Ct. 194, 63 L.Ed. 499 (1919). Newspapers do themselves rely from time to time on the copyright as a means of protecting their accounts of important events. However, those enjoined under the statutes relating to the National Labor Relations Board and the Federal Trade Commission are private parties, not the press; and when the press is enjoined under the copyright laws the complainant is a private copyright holder enforcing a private right. These situations are quite distinct from the Government's request for an injunction against publishing information about the affairs of government, a request admittedly not based on any statute.
2
The 'grave and irreparable danger' standard is that asserted by the Government in this Court. In remanding to Judge Gurfein for further hearings in the Times litigation, five members of the Court of Appeals for the Second Circuit directed him to determine whether disclosure of certain items specified with particularity by the Government would 'pose such grave and immediate danger to the security of the United States as to warrant their publication being enjoined.'
3
'Whoever, in time of war, in violation of reasonable regulations to be prescribed by the President, which he is hereby authorized to make and promulgate, shall publish any information with respect to the movement, numbers, description, condition, or disposition of any of the armed forces, ships, aircraft, or war materials of the United States, or with respect to the plans or conduct of any naval or military operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense calculated to be useful to the enemy, shall be punished by a fine * * * or by imprisonment * * *.' 55 Cong.Rec. 2100.
4
Senator Ashurst also urged that "freedom of the press' means freedom from the restraints of a censor, means the absolute liberty and right to publish whatever you wish; but you take your chances of punishment in the courts of your country for the violation of the laws of libel, slander, and treason.' 55 Cong.Rec. 2005.
5
Title 18 U.S.C. § 797 provides:
'On and after thirty days from the date upon which the President defines any vital military or naval installation or equipment as being within the category contemplated under section 795 of this title, whoever reproduces, publishes, sells, or gives away any photograph, sketch, picture, drawing, map, or graphical representation of the vital military or naval installations or equipment so defined, without first obtaining permission of the commanding officer of the military or naval post, camp, or station concerned, or higher authority, unless such photograph, sketch, picture, drawing, map, or graphical representation has clearly indicated thereon that it has been censored by the proper military or naval authority, shall be fined not more than $1,000 or imprisoned not more than one year, or both.'
6
In relevant part 18 U.S.C. § 798 provides:
'(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—
'(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
'(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
'(3) concerning the communication intelligence activities of the United States or any foreign government; or
'(4) obtained by the process of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—
'Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.'
7
The purport of 18 U.S.C. § 798 is clear. Both the House and Senate Reports on the bill, in identical terms, speak of furthering the security of the United States by preventing disclosure of information concerning the cryptographic systems and the communication intelligence systems of the United States, and explaining that '(t)his bill make it a crime to reveal the methods, techniques, and mate riel used in the transmission by this Nation of enciphered or coded messages. * * * Further, it makes it a crime to reveal methods used by this Nation in breaking the secret codes of a foreign nation. It also prohibits under certain penalties the divulging of any information which may have come into this Government's hands as a result of such a code-breaking.' H.R.Rep.No.1895, 81st Cong., 2d Sess., 1 (1950). The narrow reach of the statute was explained as covering 'only a small category of classified matter, a category which is both vital and vulnerable to an almost unique degree.' Id., at 2. Existing legislation was deemed inadequate.
'At present two other acts protect this information, but only in a limited way. These are the Espionage Act of 1917 (40 Stat. 217) and the act of June 10, 1933 (48 Stat. 122). Under the first, unauthorized revelation of information of this kind can be penalized only if it can be proved that the person making the revelation did so with an intent to injure the United States. Under the second, only diplomatic codes and messages transmitted in diplomatic codes are protected. The present bill is designed to protect against knowing and willful publication or any other revelation of all important information affecting the United States communication intelligence operations and all direct information about all United States codes and ciphers.' Ibid. Section 798 obviously was intended to cover publications by non-employees of the Government and to ease the Government's burden in obtaining convictions. See H.R.Rep.No.1895, supra, at 2 5. The identical Senate Report, not cited in parallel in the text of this footnote, is S.Rep.No.111, 81st Cong., 1st Sess. (1949).
8
Section 793(e) of 18 U.S.C. provides that:
'(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;' is guilty of an offense punishable by 10 years in prison, a $10,000 fine, or both. It should also be noted that 18 U.S.C. § 793(g), added in 1950 (see 64 Stat. 1004; S.Rep.No.2369, pt. 1, 81st Cong., 2d Sess., 9 (1950)), provides that '(i)f two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.'
9
The amendment of § 793 that added subsection (e) was part of the Subversive Activities Control Act of 1950, which was in turn Title I of the Internal Security Act of 1950. See 64 Stat. 987. The report of the Senate Judiciary Committee best explains the purposes of the amendment:
'Section 18 of the bill amends section 793 of title 18 of the United States Code (espionage statute). The several paragraphs of section 793 of title 18 are designated as subsections (a) through (g) for purposes of convenient reference. The significant changes which would be made in section 793 of title 18 are as follows:
'(1) Amends the fourth paragraph of section 793, title 18 (subsec. (d)), to cover the unlawful dissemination of 'information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.' The phrase 'which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation' would modify only 'information relating to the national defense' and not the other items enumerated in the subsection. The fourth paragraph of section 793 is also amended to provide that only those with lawful possession of the items relating to national defense enumerated therein may retain them subject to demand therefor. Those who have unauthorized possession of such items are treated in a separate subsection.
'(2) Amends section 793, title 18 (subsec. (e)), to provide that unauthorized possessors of items enumerated in paragraph 4 of section 793 must surrender possession thereof to the proper authorities without demand. Existing law provides no penalty for the unauthorized possession of such items unless a demand for them is made by the person entitled to receive them. The dangers surrounding the unauthorized possession of such items are self-evident, and it is deemed advisable to require their surrender in such a case, regardless of demand, especially since their unauthorized possession may be unknown to the authorities who would otherwise make the demand. The only difference between subsection (d) and subsection (e) of section 793 is that a demand by the person entitled to receive the items would be a necessary element of an offense under subsection (d) where the possession is lawful, whereas such
a demand would not be a necessary element of an offense under subsection (e) where the possession is unauthorized.' S.Rep.No.2369, pt. 1, 81st Cong., 2d Sess., 8—9 (1950) (emphasis added).
It seems clear from the foregoing, contrary to the intimations of the District Court for the Southern District of New York in this case, that in prosecuting for communicating or withholding a 'document' as contrasted with similar action with respect to 'information' the Government need not prove an intent to injure the United States or to benefit a foreign nation but only willful and knowing conduct. The District Court relied on Gorin v. United States, 312 U.S. 19, 61 S.Ct. 429, 85 L.Ed. 488 (1941). But that case arose under other parts of the predecessor to § 793, see 312 U.S., at 21—22, 61 S.Ct., at 430—432—parts that imposed different intent standards not repeated in § 793(d) or § 793(e). Cf. 18 U.S.C. § 793(a), (b), and (c). Also, from the face of subsection (e) and from the context of the Act of which it was a part, it seems undeniable that a newspaper, as well as others unconnected with the Government, are vulnerable to prosecution under § 793(e) if they communicate or withhold the materials covered by that section. The District Court ruled that 'communication' did not reach publication by a newspaper of documents relating to the national defense. I intimate no views on the correctness of that conclusion. But neither communication nor publication is necessary to violate the subsection.
10
Also relevant is 18 U.S.C. § 794. Subsection (b) thereof forbids in time of war the collection or publication, with intent that it shall be communicated to the enemy, of any information with respect to the movements of military forces, 'or with respect to the plans or conduct * * * of any naval or military operations * * * or any other information relating to the public defense, which might be useful to the enemy * * *.'
1
See n. 3, infra.
2
But see Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952).
3
There are several other statutory provisions prohibiting and punishing the dissemination of information, the disclosure of which Congress thought sufficiently imperiled national security to warrant that result. These include 42 U.S.C. §§ 2161 through 2166 relating to the authority of the Atomic Energy Commission to classify and declassify 'Restricted Data' ('Restricted Data' is a term of art employed uniquely by the Atomic Energy Act). Specifically, 42 U.S.C. § 2162 authorizes the Atomic Energy Commission to classify certain information. Title 42 U.S.C. § 2274, subsection (a), provides penalties for a person who 'communicates, transmits, or discloses (restricted data) * * * with intent to injure the United States or with intent to secure an advantage to any foreign nation * * *.' Subsection (b) of § 2274 provides lesser penalties for one who 'communicates, transmits, or discloses' such information 'with reason to believe such data will be utilized to injure the United States or to secure an advantage to any foreign nation * * *.' Other sections of Title 42 of the United States Code dealing with atomic energy prohibit and punish acquisition, removal, concealment, tampering with, alteration, mutilation, or destruction of documents incorporating 'Restricted Data' and provide penalties for employees and former employees of the Atomic Energy Commission, the armed services, contractors and licensees of the Atomic Energy Commission. Title 42 U.S.C. §§ 2276, 2277. Title 50 U.S.C.App. § 781, 56 Stat. 390, prohibits the making of any sketch or other representation of military installations or any military equipment located on any military installation, as specified; and indeed Congress in the National Defense Act of 1940, 54 Stat. 676, as amended, 56 Stat. 179, conferred jurisdiction on federal district courts over civil actions 'to enjoin any violation' thereof. 50 U.S.C.App. § 1152(6). Title 50 U.S.C. § 783(b) makes it unlawful for any officers or employees of the United States or any corporation which is owned by the United States to communicate material which has been 'classified' by the President to any person who that governmental employee knows or has reason to believe is an agent or representative of any foreign government or any Communist organization.
1
As noted elsewhere the Times conducted its analysis of the 47 volumes of Government documents over a period of several months and did so with a degree of security that a government might envy. Such security was essential, of course, to protect the enterprise from others. Meanwhile the Times has copyrighted its material and there were strong intimations in the oral argument that the Times contemplated enjoining its use by any other publisher in violation of its copyright. Paradoxically this would afford it a protection, analogous to prior restraint, against all others—a protection the Times denies the Government of the United States.
2
Interestingly the Times explained its refusal to allow the Government to examine its own purloined documents by saying in substance this might compromise its sources and informants! The Times thus asserts a right to guard the secrecy of its sources while denying that the Government of the United States has that power.
3
With respect to the question of inherent power of the Executive to classify papers, records, and documents as secret, or otherwise unavailable for public exposure, and to secure aid of the courts for enforcement, there may be an analogy with respect to this Court. No statute gives this Court express power to establish and enforce the utmost security measures for the secrecy of our deliberations and records. Yet I have little doubt as to the inherent power of the Court to protect the confidentiality of its internal operations by whatever judicial measures may be required.
*
The hearing in the Post case before Judge Gesell began at 8 a.m. on June 21, and his decision was rendered, under the hammer of a deadline imposed by the Court of Appeals, shortly before 5 p.m. on the same day. The hearing in the Times case before Judge Gurfein was held on June 18 and his decision was rendered on June 19. The Government's appeals in the two cases were heard by the Courts of Appeals for the District of Columbia and Second Circuits, each court sitting en banc, on June 22. Each court rendered its decision on the following afternoon.
| 23
|
404 U.S. 1
92 S.Ct. 5
30 L.Ed.2d 1
Cecil HICKS, District Attorney, County of Orange, California, et al.v.PLEASURE HOUSE, INC., et al.
No. 70—127.
Oct. 12, 1971.
PER CURIAM.
1
The appellants seek review of a temporary restraining order entered by a single district judge in a case certified for presentation to a statutory three-judge court. The order, inter alia, stayed a pending prosecution of the appellees under certain state obscenity laws and temporarily restrained further enforcement of the laws against the appellees. It was entered by the District Judge shortly after he had certified a request for designation of a three-judge court to hear the appellees' suit for permanent declaratory and injunctive relief. Under 28 U.S.C. § 2284(3), a single district judge has power to enter such an order in a case to be heard by a three-judge court, but the order can be entered only 'to prevent irreparable damage' and can 'remain in force only until the hearing and determination by the full court.'
2
The appellants argue that the order in this case contravenes principles set forth last Term in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). They invoke this Court's jurisdiction on direct appeal from 'an interlocutory or permanent injunction' in any action 'required * * * to be heard and determined by a district court of three judges,' under 28 U.S.C. § 1253. Since, however, § 1253 does not authorize a direct appeal to this Court from a § 2284(3) order by a single district judge, we dismiss this appeal for want of jurisdiction.
3
Long ago, this Court made clear that no direct appeal lies under § 1253 to the Supreme Court from a temporary restraining order issued by a single judge, even though the order may amount to an 'interlocutory injunction' and may have been issued in an action required to be heard by a three-judge court. Stratton v. St. Louis S.R. Co., 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135.1 See Ex parte Metropolitan Water Co. of West Virginia, 220 U.S. 539, 31 S.Ct. 600, 55 L.Ed. 575. This is so because § 1253 'plainly contemplates such a direct appeal only in the case of an order or decree entered by a court composed of three judges in accordance with the statutory requirement.' Stratton v. St. Louis S.R. Co., supra, 282 U.S., at 16, 51 S.Ct., at 10. See Mengelkoch v. Industrial Welfare Comm'n, 393 U.S. 83, 89 S.Ct. 60, 21 L.Ed.2d 215; Wilson v. City of Port Lavaca, 391 U.S. 352, 88 S.Ct. 1502, 20 L.Ed.2d 636; Schackman v. Arnebergh, 387 U.S. 427, 87 S.Ct. 1622, 18 L.Ed.2d 865; Buchanan v. Rhodes, 385 U.S. 3, 87 S.Ct. 33, 17 L.Ed.2d 3.
4
More recently, this Court has held that an appeal may lie to a court of appeals from certain actions of a single district judge in a case required to be heard by three judges. Mengelkoch v. Industrial Welfare Comm'n, supra; Wilson v. City of Port Lavaca, supra; Schackman v. Arnebergh, supra; Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794. A court of appeals is not 'powerless * * * to give any guidance when a single judge has erroneously invaded the province of a three-judge court.' Idlewild Bon Voyage Liquor Corp. v. Epstein, supra, at 716, 82 S.Ct., at 1296. Thus, if a single judge oversteps his limited authority under § 2284(3), a court of appeals may correct his error. In addition, a temporary restraining order issued pursuant to § 2284(3) is reviewable in a court of appeals to the extent that any such order is reviewable under 28 U.S.C. §§ 1291 and 1292(a). However, if no such appeal is taken before the three-judge court is convened,2 application must be made to that court for vacation or modification of the temporary restraining order pending a final determination on the merits.
5
The appeal is dismissed for want of jurisdiction.
1
In the instant case, the single judge himself determined that the action was one required to be heard by a three-judge court and then entered his temporary restraining order; in Stratton, supra, on the other hand, the single judge erroneously determined that a three-judge court was not required and then entered a similar order. This distinction between the cases, however, makes no difference in principle.
2
The papers before the Court in this case do not make clear whether or not the three-judge court has now been convened.
| 89
|
404 U.S. 4
92 S.Ct. 22
30 L.Ed.2d 126
Raymond ARCINIEGAv.Edward R. FREEMAN, U. S. Marshal.
No. 70-5135.
Oct. 26, 1971.
PER CURIAM.
1
Petitioner's parole was revoked by the Federal Parole Board because of association with other ex-convicts. In a petition for habeas corpus, petitioner contended that the record did not disclose any evidence in support of this conclusion. The Court of Appeals for the Ninth Circuit, sustained the revocation on the sole ground that petitioner worked at a restaurant-nightclub that employed other ex-convicts. 439 F.2d 776.
2
The Parole Board has wide authority to set conditions, 18 U.S.C. § 4203(a), and here petitioner was forbidden to 'associate' with other ex-convicts. But the Board's own regulations require 'satisfactory evidence' of a parole violation to justify an arrest warrant. 28 CFR § 2.35. We do not believe that the parole condition restricting association was intended to apply to incidental contacts between ex-convicts in the course of work on a legitimate job for a common employer. Nor is such occupational association, standing alone, satisfactory evidence of nonbusiness association violative of the parole restriction. To so assume would be to render a parolee vulnerable to imprisonment whenever his employer, willing to hire ex-convicts, hires more than one. Absent a clear Parole Board directive to this effect, we cannot sustain the judgment of the Court of Appeals that on-the-job contacts with fellow employees with police records is sufficient evidence of parole violation. If there is in this record other evidence of forbidden association or evidence of other parole violations, neither the Court of Appeals nor the United States has identified it.
3
The motion for leave to proceed in forma pauperis is granted, the petition for a writ of certiorari is granted, and the judgment of the Court of Appeals is reversed.
4
Reversed.
| 34
|
404 U.S. 16
92 S.Ct. 170
30 L.Ed.2d 136
Alexander McCLANAHAN, Petitioner,v.MORAUER & HARTZELL, INC., et al.
No. 70—5097.
Argued Oct. 21, 1971.
Decided Nov. 8, 1971.
John Louis Smith, Jr., Washington, D.C., for petitioner.
James C. Gregg, Washington, D.C., for respondents.
PER CURIAM.
1
Under § 33(g) of the Longshoremen's and Harbor Workers' Compensation Act, an employer is not obligated to pay compensation to an employee who, without the employer's written approval, settles a claim against a third person for an amount less than the compensation to which the employee is entitled under the Act. 44 Stat. 1441, as amended, 33 U.S.C. § 933(g). Certiorari was granted in this case, 402 U.S. 1008, 91 S.Ct. 2196, 29 L.Ed.2d 430 (1971), on the assumption that it presented the question whether the consent judgment entered by the District Judge awarding petitioner damages against a third person evidenced a 'compromise' subject to § 33(g), or an award of damages 'determined * * * by the independent evaluation of a trial judge,' not subject to § 33(g) under Banks v. Chicago Grain Trimmers Assn., 390 U.S. 459, 467, 88 S.Ct. 1140, 1145, 20 L.Ed.2d 30 (1968). Fuller examination of the case on oral argument discloses that the record does not adequately present that question. The writ of certiorari is therefore dismissed as improvidently granted.
2
Writ dismissed.
3
Mr. Justice DOUGLAS, dissenting.
4
I am unable to agree that the circumstances of this case fail to pose the question whether a consent judgment pursuant to a federal pre-trial conference constitutes a 'compromise' within the meaning of § 33(g) of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1441, as amended, which reads:
5
'If compromise with such third person is made by the person entitled to compensation * * * of an amount less than the compensation to which such person * * * would be entitled * * * the employer shall be liable for compensation as determined in subdivision (f) of this section only if such compromise is made with his written approval.'
6
Petitioner McClanahan was employed by respondent when a steel bar struck his head. On August 24, 1964, the Bureau of Employees' Compensation found that the injury had caused temporary total disability and ordered the respondent to compensate McClanahan in the amount of $3,780. While these proceedings were pending, the petitioner instituted a civil action in the District Court against a third party, alleging that its employees had contributed to his injury. Before the civil action came to trial, the judge conducted a pretrial conference, during which he spoke with counsel first together and then individually. During these conversations the judge suggested that he had reviewed the file and that he believed the plaintiff's case was worth about $5,000 (although McClanahan had sued for $9,000). Other sums were discussed but the parties accepted his suggestion. On March 3, 1967, a consent judgment was entered for $5,000, of which petitioner's wife received $3,000 and he received $2,000. Of petitioner's share $800 was retained by his lawyer and the remaining $1,200 of the petitioner's share was transferred to his employer's insurance carrier as partial reimbursement for disability payments previously made under the Board's 1964 order.
7
Thereafter, on July 26, 1967, the petitioner filed with the Bureau a claim for modification of its 1964 compensation award, alleging that his injuries were more serious than previously realized. The Deputy Commissioner agreed with at least part of his assertions and added $2,328.70 to the prior award.
8
On appeal, however, the lower courts were persuaded that the employer was immune from further liability because the petitioner had 'compromised' his claim against a third party. The Longshoremen's and Harbor Workers' Compensation Act provides that an employer is liable only for the excess of a worker's injury over any amount a worker may recover from a third party. Thus, an employer is benefited when an injured employee obtains a larger judgment from a third party. To protect employers from ill-advised compromises by employees § 33(g) generally relieves an employer of further liability if, without his written approval, his injured servant settles with another possible defendant. Thus, in the instant case, because the respondent had not subscribed to the consent judgment, the lower courts held that it had been spared further payments to McClanahan.
9
We granted certiorari to consider whether the lower courts' holdings conflict with our decision in Banks v. Chicago Grain Trimmers Assn., 390 U.S. 459, 88 S.Ct. 1140, 20 L.Ed.2d 30 (1968), that an employee's acceptance of a judicially ordered remittitur in lieu of a new trial was not a 'compromise' within the meaning of § 33(g). 402 U.S. 1008, 91 S.Ct. 2196, 29 L.Ed.2d 430 (1971). Banks involved a similar chain of events except that Banks, unlike McClanahan, went to trial and a jury awarded him $30,000, which the judge thought was excessive. The court accordingly said it would order a new trial unless the parties agreed to a remittitur which would reduce the total judgment to.$19,000. Banks accepted without obtaining his employer's consent. We held that his acquiescence had not constituted a 'compromise' because it had been induced by the 'independent evaluation of a trial judge' and the danger of Banks' accepting too little had not been present. 390 U.S., at 466, 467, 88 S.Ct. 1140, 1145.
10
Similarly, no risk of unwise compromise faced McClanahan's employer. Pretrial conferences are the last stop before the final stage in the trial litigation process. Preceded by pleadings and discovery, the conference previews the expected trial scenario, weeds out illusory and frivolous issues, and exposes the substance of conflicting claims. Because pretrial judges review the evidence to be presented in light of the clarified issues, they are in a position to assess the outcome. Thus, one widely applauded function of the pretrial conference has been its encouragement of settlements in personal-injury cases. While some dispute continues as to the degree of persuasion a judge should exercise in obtaining a settlement, critics have not complained that pretrial conference settlements have been unreasonable or unfair. See F. James, Civil Procedure 228 (1965); Wright, The Pre-trial Conference, 28 F.R.D. 141, 145—147 (1960); Brennan, Introduction to the Problem of the Protracted Case, 23 F.R.D. 376, 378—379 (1958); Clark, Objectives of Pre-Trial Procedure, 17 Ohio St.L.J. 163, 167 (1956). Thus, McClanahan's trial judge below surveyed the evidence which was to be presented at trial and after discussion with both adversaries suggested that the expected value of McClanahan's case was about $5,000. That assessment was made by one experienced in understanding how juries are likely to view a claim. Absent circumstances not shown here, we should presume that such evaluations are reasonable and do not prejudice employers' interests.
11
In Banks—unlike here—the judge had seen a full jury trial's worth of evidence. But in both situations there were critical assessments of the expected values of plaintiffs' future prospects. In Banks the employee might well have adduced different, stronger evidence at a second trial, or, the remittitur order may have been vacated on appeal. In settling on a suggested remittitur of $11,000 the court may have extrapolated from hindsight but it had no more, perhaps even less, information concerning Banks' eventual success than had McClanahan's pretrial judge concerning his prospects. The important similarity between these cases is that an independent and informed forecast was made of events yet to unfold.
12
Moreover, we have construed § 33(g) so as to confine this defense to those situations where an employer can demonstrate actual prejudice from unilateral settlements by the employee. In Chapman v. Hoage, 296 U.S. 526, 56 S.Ct. 333, 80 L.Ed. 370 (1936), our first opinion discussing § 33(g), the employer claimed prejudice because his employee had unilaterally discontinued a lawsuit against a third party. The trial judge had made no assessment of its prospects. The worker had simply failed to prosecute his case. This Court ultimately determined that the lawsuit had been worthless and that absent a showing of actual prejudice the employer was not entitled to a windfall 'compromise' defense as a result of its dismissal.
13
The trend in other jurisdictions has been to avoid the harshness resulting from strict applications of statutes requiring consent of employers in third-party settlements. Under the analogous provision of the New York employees' compensation statute, after which the federal Act was modeled,1 circumstances similar to the instant facts have been held nonprejudicial to employers. Sadowski v. J. W. Danforth Co., 2 A.D.2d 728, 152 N.Y.S.2d 626 (1956), effectively differed from the instant case only in that the conference was held in the courtroom rather than in chambers:
14
'Prior to trial of the action, the attorneys concerned had two or three discussions as to settlement. On the day the case was reached for trial, claimant's attorney told him he believed the case would be settled and later asked him to approve a settlement figure of $10,000, which he did. In the presence of his attorney and an insurance company representative, claimant signed a paper, but so far as appears no effort was made to subpoena such paper on the hearing herein. When the case was reached, both attorneys appeared and waived a jury. Claimant testified as to all the facts relevant to liability and damages and exhibits were received. Defendant's attorney did not cross-examine and put in no proof. The trial court then found defendant negligent and the plaintiff free from negligence and directed judgment for $10,250. 'We cannot say, as a matter of law, upon the record before us, that this result did not represent the trial court's considered judgment and evaluation, based on the evidence, which appears to have been adequate to enable him to reach a fair determination. In a case where the facts were somewhat more favorable to the compensation insurance carrier than here, we held that the judgment represented the 'trial court's evaluation of the damages sustained and was not the result of any settlement or compromise.' Klump v. Erie County Highway Department, 275 App.Div. 1017, 91 N.Y.S.2d 689, leave to appeal denied 300 N.Y. 761, 90 N.E.2d 69.'2
15
The purpose of the Longshoremen's and Harbor Workers' Compensation Act was to guarantee a minimum level of compensation to covered employees. The record clearly reveals that McClanahan has not yet received that statutory minimum.
16
We should not depart from our holding in Banks. Where a plaintiff cannot rely on the judgment and experience of a federal district judge, he has no choice but to refuse any disposition of the case short of a full trial and numerous appeals. In these days of crowded court dockets, the effect of the rule adopted by the Court of Appeals will be to discourage consent judgments in cases of this kind and force all such litigation through the trial process, further overwhelming already overburdened judges. Finally, there is something most inequitable in holding that a person-injury plaintiff who relies on the good faith and judgment of a federal judge should thereafter be penalized and deprived of compensation for his injury because of his reliance. I would reverse the decision below to enforce the congressional mandate contained in the Longshoremen's and Harbor Workers' Compensation Act as we did in our decision in Banks.
1
Banks v. Chicago Grain Trimmers Assn., Inc., 390 U.S. 459, 466, 88 S.Ct. 1140, 1145, 20 L.Ed.2d 30 (1968).
2
In Klump, the third party and the plaintiff-employee waived a jury, the latter testified briefly, the former conceded liability, and when both agreed that damages ranged between $4,000 and $4,500, the trial judge entered a judgment for $4,300. Before the compensation board the employer later argued unsuccessfully that this judgment had constituted a compromise. Klump v. Erie County Highway Department, 275 App.Div. 1017, 91 N.Y.S.2d 689, leave to appeal denied, 300 N.Y. 761, 90 N.E.2d 69. The opinion of the state workman's compensation board is reported at State of New York Workman's Compensation Board, Special Bulletin No. 229, p. 192 (1949).
| 78
|
404 U.S. 6
92 S.Ct. 165
30 L.Ed.2d 128
SUPERINTENDENT OF INSURANCE OF the STATE OF NEW YORK, as Liquidator of Manhattan Casualty Company, Petitioner,v.BANKERS LIFE AND CASUALTY COMPANY et al.
No. 70—60.
Argued Oct. 13, 1971.
Decided Nov. 8, 1971.
Arnold Bauman, New York City, for petitioner.
Walter P. North, Washington, D.C., for the Securities and Exchange Comm., as amicus curiae, by special leave of Court.
William Warren Karatz, New York City, for respondent Irving Trust Co.
Irving Parker, New York City, for respondent Bankers Life and Cas. Co.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Manhattan Casualty Co., now represented by petitioner, New York's Superintendent of Insurance, was, it is alleged, defrauded in the sale of certain securities in violation of § 17(a) the Securities Act of 1933, 48 Stat. 84, 15 U.S.C. § 77q(a), and of § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. § 78j(b). The District Court dismissed the complaint, 300 F.Supp. 1083, and the Court of Appeals affirmed, by a divided bench. 2 Cir., 430 F.2d 355. The case is here on a petition for a writ of certiorari which we granted, 401 U.S. 973, 91 S.Ct. 1191, 28 L.Ed.2d 321.
2
It seems that Bankers Life & Casualty Co., one of the respondents, agreed to sell all of Manhattan's stock to one Begole for $5,000,000. It is alleged that Begole conspired with one Bourne and others to pay for this stock, not out of their own funds, but with Manhattan's assets. They were alleged to have arranged, through Garvin, Bantel & Co.—a note brokerage firm—to obtain a $5,000,000 check from respondent Irving Trust Co., although they had no funds on deposit there at the time. On the same day they purchased all the stock of Manhattan from Bankers Life for $5,000,000 and as stockholders and directors, installed one Sweeny as president of Manhattan.
3
Manhattan then sold its United States Treasury bonds for $4,854,552.67.1 That amount, plus enough cash to bring the total to $5,000,000, was credited to an account of Manhattan at Irving Trust and the $5,000,000 Irving Trust check was charged against it. As a result, Begole owned all the stock of Manhattan, having used $5,000,000 of Manhattan's assets to purchase it.
4
To complete the fraudulent scheme, Irving Trust issued a second $5,000,000 check to Manhattan which Sweeny, Manhattan's new president, tendered to Belgian-American Bank & Trust Co. which issued a $5,000,000 certificate of deposit in the name of Manhattan. Sweeny endorsed the certificate of deposit over to New England Note Corp., a company alleged to be controlled by Bourne. Bourne endorsed the certificate over to Belgian-American Banking Corp.2 as collateral for a $5,000,000 loan from Belgian-American Banking to New England. Its proceeds were paid to Irving Trust to cover the latter's second $5,000,000 check.
5
Though Manhattan's assets had been depleted, its books reflected only the sale of its Government bonds and the purchase of the certificate of deposit and did not show that its assets had been used by Begole to pay for his purchase of Manhattan's shares or that the certificate of deposit had been assigned to New England and then pledged to Belgian-American Banking.
6
Manhattan was the seller of Treasury bonds and, it seems to us, clearly protected by § 10(b), 15 U.S.C. § 78j(b), of the Securities Exchange Act,3 which makes it unlawful to use 'in connection with the purchase or sale' of any security 'any manipulative or deceptive device or contrivance' in contravention of the rules and regulations of the Securities and Exchange Commission.4
7
There certainly was an 'act' or 'practice' within the meaning of Rule 10b—55 which operated as 'a fraud or deceit' on Manhattan, the seller of the Government bonds. To be sure, the full market price was paid for those bonds; but the seller was duped into believing that it, the seller, would receive the proceeds. We cannot agree with the Court of Appeals that 'no investor (was) injured' and that the 'purity of the security transaction and the purity of the trading process were unsullied.' 430 F.2d, at 361.
8
Section 10(b) outlaws the use 'in connection with the purchase or sale' of any security6 of 'any manipulative or deceptive device or contrivance.' The Act protects corporations as well as individuals who are sellers of a security. Manhattan was injured as an investor through a deceptive device which deprived it of any compensation for the sale of its valuable block of securities.
9
The fact that the fraud was perpetrated by an officer of Manhattan and his outside collaborators is irrelevant to our problem. For § 10(b) bans the use of any deceptive device in the 'sale' of any security by 'any person.' And the fact that the transaction is not conducted through a securities exchange or an organized over-the-counter market is irrelevant to the coverage of § 10(b). Hooper v. Mountain States Securities Corp., 5 Cir., 282 F.2d 195, 201. Likewise irrelevant is the fact that the proceeds of the sale that were due the seller were misappropriated.7 As the Court of Appeals for the Fifth Circuit said in the Hooper case, 'Considering the purpose of this legislation, it would be unrealistic to say that a corporation having the capacity to acquire $700,000 worth of assets for its 700,000 shares of stock has suffered no loss if what it gave up was $700,000 but what it got was zero.' 282 F.2d, at 203.
10
The Congress made clear that 'disregard of trust relationships by those whom the law should regard as fiduciaries, are all a single seamless web' along with manipulation, investor's ignorance, and the like. H.R.Rep.No. 1383, 73d Cong., 2d Sess., 6. Since practices 'constantly vary and where practices legitimate for some purposes may be turned to illegitimate and fraudulent means, broad discretionary powers' in the regulatory agency 'have been found practically essential.' Id., at 7. Hence we do not read § 10(b) as narrowly as the Court of Appeals; it is not 'limited to preserving the integrity of the securities markets' (430 F.2d, at 361), though that purpose is included. Section 10(b) must be read flexibly, not technically and restrictively. Since there was a 'sale' of a security and since fraud was used 'in connection with' it, there is redress under § 10(b), whatever might be available as a remedy under state law.
11
We agree that Congress by § 10(b) did not seek to regulate transactions which constitute no more than internal corporate mismanagement. But we read § 10(b) to mean that Congress meant to bar deceptive devices and contrivances in the purchase or sale of securities whether conducted in the organized markets or face to face. And the fact that creditors8 of the defrauded corporate buyer or seller of securities may be the ultimate victims does not warrant disregard of the corporate entity. The controlling stockholder owes the corporation a fiduciary obligation—one 'designed for the protection of the entire community of interests in the corporation—creditors as well as stockholders.' Pepper v. Litton, 308 U.S. 295, 307, 60 S.Ct. 238, 245, 84 L.Ed. 281.
12
The crux of the present case is that Manhattan suffered an injury as a result of deceptive practices touching its sale of securities an an investor. As stated in Shell v. Hensley, 5 Cir., 430 F.2d 819, 827:
13
'When a person who is dealing with a corporation in a securities transaction denies the corporation's directors access to material information known to him, the corporation is disabled from availing itself of an informed judgment on the part of its board regarding the merits of the transaction. In this situation the private right of action recognized under Rule 10b—59 is available as a remedy for the corporate disability.'
14
The case was before the lower courts on a motion to dismiss.
15
Bankers Life urges that the complaint did not allege, and discovery failed to disclose, any connection between it and the fraud and that, therefore, the dismissal of the complaint as to it was correct and should be affirmed. We make no ruling on this point.
16
The case must be remanded for trial. We intimate no opinion on the merits, as we have dealt only with allegations and with the question of law whether a cause of action as respects the sale by Manhattan of its Treasury bonds has been charged under § 10(b).10 We think it has been so charged and accordingly we reverse and remand for proceedings consistent with this opinion.
17
All defenses except our ruling on § 10 (b) will be open on remand.
18
Reversed.
1
Manhattan's Board of Directors was allegedly deceived into authorizing this sale by the misrepresentation that the proceeds would be exchanged for a certificate of deposit of equal value.
2
Belgian-American Banking at the same time made a loan to New England Note in the amount of $250,000 which was distributed in part as follows: Belgian-American American Banking $100,000, Bourne $50,000, Begole $50,000, and Garvin, Bantel $25,000.
3
Section 10(b) provides:
'It shall be unlawful for any person . . . (t)o use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.'
4
Rule 10b—5, 17 CFR § 240.10b—5, provides:
'It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
'(a) To employ any device, scheme, or artifice to defraud,
'(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
'(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.'
5
N. 4, supra.
6
Section 3(a)(10) of the 1934 Act defines 'security' very broadly (see Tcherepnin v. Knight, 389 U.S. 332, 88 S.Ct. 548, 19 L.Ed.2d 564) and clearly embraces Treasury bonds.
7
See, e.g., Allico Nat. Corp. v. Amalgamated Meat Cutters & Butcher Workmen of North America, 397 F.2d 727 (CA7 1968), which held sufficient under § 10(b) and Rule 10b—5 a complaint which charged that defendant union, upon discovering that a third party would pay a higher price, breached a prior agreement to sell 100% of the stock in a wholly owned life insurance company to plaintiffs. The court placed primary reliance on the fact that in the course of the transaction, the union misappropriated some 25,000 shares of the life insurance company's stock which had previously been sold to plaintiffs for cash, but which were being held in escrow pending consummation of the agreement.
'Even if a breach of contract in order to make a more favorable
contract would not in itself be sufficient (to confer jurisdiction under § 10(b)), we have more here. The motivation not only is said to induce a breach of contract * * * but also to induce the conversion of plaintiffs' pledged 25,000 shares.' Id., at 729—730. See also Cooper v. North Jersey Trust Co., 226 F.Supp. 972 (SDNY 1964), in which a conspiracy to loan plaintiff money to buy securities, followed by the misappropriation of the purchased securities when they were pledged to secure the loan, was held to violate § 10(b) and Rule 10b—5.
Indeed, misappropriation is a 'garden variety' type of fraud compared to the scheme which gave rise to A. T. Brod & Co. v. Perlow, 375 F.2d 393 (CA2 1967). That case involved an action by a broker against its own customers for the recovery of losses suffered when defendant customers refused to pay for securities previously ordered which had decreased in value by the settlement date. The complaint charged that this refusal to honor the purchase order was part of the customers' deceptive plan only to pay for securities purchased for their account when those securities had appreciated in value by the date payment was due.
Rejecting the customers' pleas that 'no fraud is alleged as to the investment value of the securities nor any fraud 'usually associated with the sale or purchase of securities," id., at 396, the Court of Appeals for the Second Circuit—composed of a different panel from the one sitting in the instant case—-reversed the District Court's dismissal of the complaint.
'(We do not) think it sound to dismiss a complaint merely because the alleged scheme does not involve the type of fraud that is 'usually associated with the sale or purchase of securities.' We believe that § 10(b) and Rule 10b—5 prohibit all fraudulent schemes in connection with the purchase or sale of securities, whether the artifices employed involve a garden type variety of fraud, or present a unique form of deception. Novel or atypical methods should not provide immunity from the securities laws.' Id., at 397.
8
The history of the Act shows that Congress was especially concerned with the impact of frauds on creditors of corporations. See H.R.Rep.No.1383, 73d Cong., 2d Sess., 3—4.
9
It is now established that a private right of action is implied under § 10(b). See 6 L. Loss, Securities Regulation 3869 3873 (1969); 3 L. Loss, Securities Regulation 1763 et seq. (2d ed. 1961). Cf. Tcherepnin v. Knight, 389 U.S. 332, 88 S.Ct. 548, 19 L.Ed.2d 564; J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423.
10
Petitioner's complaint bases his single claim for recovery alternatively on three different transactions alleged to confer jurisdiction under § 10(b): Manhattan's sale of the Treasury bonds; the sale of Manhattan stock by Bankers Life to Bourne and Begole; and the transactions involving the certificates of deposit. We only hold that the alleged fraud is cognizable under § 10(b) and Rule 10b—5 in the bond sale and we express no opinion as to Manhattan's standing under § 10(b) and Rule 10b—5 on other phases of the complaint. See Kellogg, The Inability to Obtain Analytical Precision Where Standing to Sue Under Rule 10b—5 is Involved, 20 Buffalo L.Rev. 93 (1970); Lowenfels, The Demise of the Birnbaum Doctrine: A New Era For Rule 10b—5, 54 Va.L.Rev. 268 (1968).
| 78
|
404 U.S. 15
92 S.Ct. 250
30 L.Ed.2d 142
Evelle J. YOUNGER et al., appellants,v.Robert O. GILMORE, Jr., et al.
No. 70-9.
Supreme Court of the United States
November 8, 1971
George R. Nock, San Francisco, Cal., for appellants.
John E. Wahl, San Francisco, Cal., for appellees.
PER CURIAM.
1
On this appeal we postponed the question of jurisdiction pending the hearing of the case on the merits. Lynch v. Gilmore, 401 U.S. 906, 91 S.Ct. 864, 27 L.Ed.2d 804 (1971).
2
Having heard the case on its merits, we find that this Court does have jurisdiction (Alabama State Teachers Ass'n v. Alabama Public School and College Authority, 393 U.S. 400, 89 S.Ct. 681, 21 L.Ed.2d 631 (1969)) and affirm the judgment of the District Court for the Northern District of California. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969).
| 34
|
404 U.S. 28
92 S.Ct. 175
30 L.Ed.2d 209
Edwin James DOHERTYv.UNITED STATES.
No. 71—5679.
Nov. 9, 1971.
PER CURIAM.
1
Applicant Doherty was convicted in federal court of smuggling marihuana. The Court of Appeals for the Ninth Circuit affirmed, 441 F.2d 1168. Doherty's retained counsel, who had represented him both at trial and on appeal, withdrew after the appellate decision because Doherty was without funds to pay for legal services. Without opinion the Court of Appeals denied Doherty's pro se motion for appointment of counsel to assist in preparing a petition for writ of certiorari. Doherty has now filed a motion in this Court seeking appointment of counsel for that purpose. We treat the motion for appointment of counsel as a petition for writ of certiorari seeking review of the Court of Appeals' order denying the appointment.
2
The Court of Appeals has a rule that counsel appointed for indigent appellants must, after adverse decision in the Court of Appeals, inform his client of the right to seek review in this Court and, if the client so desires, prepare a petition for certiorari.* In denying Doherty's motion for counsel, the Court of Appeals apparently determined that its rule was of no help to Doherty, whose counsel had been retained rather than appointed. We defer to that court's construction of its own rule. However, it is not clear that the court also considered Doherty's motion in the light of the provisions of the Criminal Justice Act of 1964 insofar as they may be relevant to a federal prisoner's right to have counsel's help in seeking certiorari in this Court. 18 U.S.C. §§ 3006A(c), 3006A(d)(6), 3006A(g). See also H.R.Rep.No.1709, 88th Cong., 2d Sess., 7 (1964); U.S.Code Cong. & Admin.News 1964, p. 2990; Report of the Proceedings of a Special Session of the Judicial Conference of the United States, 36 F.R.D. 282, 291 (1965); Fed.Rule Crim.Proc. 44(a). In order that the Court of Appeals may give further consideration to the request for counsel, Doherty's motion for leave to proceed in forma pauperis is granted, the petition for certiorari is granted, the judgment of the Court of Appeals affirming Doherty's conviction and its order denying appointment of counsel are vacated, and the case is remanded to that court for further proceedings consistent with this opinion, including re-entry of its judgment of affirmance and appropriate reconsideration of the motion for appointment of counsel.
3
So ordered.
4
Vacated and remanded.
5
Mr. Justice DOUGLAS, concurring.
6
While concurring completely in the Court's per curiam, I believe additional detail clarifying the applicability of Fed.Rule Crim.Proc. 44 and the Criminal Justice Act1 to these circumstances is warranted inasmuch as all of the circuits' rules implementing the latter are susceptible of replications of the result reached below.2 Rule 44 and the Criminal Justice Act each establish a federal policy of providing every indigent federal accused with appointed counsel at every stage in his defense from arraignment through direct review by this Court, including petitioning for certiorari.
7
* Rule 44
8
The Act of June 29, 1940, 54 Stat. 688,3 authorized the Supreme Court to prescribe uniform criminal procedures in the federal courts prior to and including verdict. By an order of the Court on December 26, 1944 (323 U.S. 821), such rules were adopted, thereafter transmitted to the Congress, and became effective on March 21, 1946. These contained the forerunner of the present Rule 44, which provided:
9
'Assignment of Counsel. If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel.'
10
This procedure embodied our holding in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), that federal indigent defendants had a right under the Sixth Amendment to free counsel during trial. Until Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957), it was unclear whether Rule 44 extended that assistance to direct appeals of convictions arising in the federal courts. In any event by the last decade the sweep of our decisions involving right to counsel on appeal required revision of Rule 44 to make clear that 'every stage of the proceedings' did, in fact, include appeals.4 Thus, the revised rule effective since 1966 now reads:
11
'Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to represent him at every stage of the proceedings from his initial appearance before the commissioner or the court through appeal, unless he waives such appointment.' Fed.Rule Crim.Proc. 44(a).
12
Whether 'appeal' includes proceedings before the Supreme Court was not addressed by the Advisory Committee's Note and was until now an academic question since the rule became effective after the implementation of the Criminal Justice Act under which courts of appeals have uniformly adopted procedures routinely to extend appointed counsel's duty to preparation of certiorari petitions desired by their clients. Because this Court has traditionally appointed counsel for those indigents whose certiorari petitions are granted, the only gap in coverage would arise where, as here, a request for appointment is made to the Court of Appeals after it has decided an indigent's appeal.
13
It is significant that the language of the amended rule does extend assistance to 'appeals' and does not restrict 'appeals' to proceedings in 'courts of appeals.' Moreover, no qualification such as 'first appeal' is present. Additionally, to the extent that the Advisory Committee's suggested reading sheds light on its thinking, its Note refers to a law review article which argues for mandatory appointments in all stages of the federal criminal process,5 including petitions for certiorari. That is the obvious disposition to be made of any ambiguity.
II
Criminal Justice Act
14
An independent source of the federal statutory policy of continuous representation of indigents during their defense in the federal criminal process is the Criminal Justice Act of 1964. As does Rule 44, the Act provides an automatic right to counsel only in prosecutions originating in the District Courts and during direct review therefrom. Unlike Rule 44, the Act also authorizes discretionary appointment of counsel in the 'interests of justice' to any pauper 'subject to revocation of parole, in custody as a material witness, or seeking relief under section 2241, 2254, or 2255 of title 28 or section 4245 of title 18.'6 18 U.S.C. § 3006A(g). Another important difference between the Act and Rule 44 is that only the former authorizes the disbursement of federal funds to reimburse court-appointed lawyers.7 Financial relief to the Bar has become increasingly necessary as our decisions have expanded indigents' rights to counsel.
15
The clearest statement of the Act's policy of providing blanket coverage of indigents' representation from arraignment through review by this Court is found in the first sentence of subsection (c):
16
'A person for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the United States magistrate or the court through appeal, including ancillary matters.' 18 U.S.C. § 3006A(c).
17
The ambiguous phrase 'through appeal,' has been clarified by a 1970 amendment to another section. 18 U.S.C. § 3006A(d)(6) now provides:
18
'If a person for whom counsel is appointed under this section appeals to an appellate court or petitions for a writ of certiorari, he may do so without prepayment of fees and costs or security therefor and without filing the affidavit required by section 1915(a) of title 28.' 84 Stat. 918.8 (Emphasis added.)
19
Most of the original congressional hearings and floor debates concern the wisdom of public defender services in contrast to the more conventional system of rotating appointments among the Bar. No discussion was directed to the precise question involved here. Nonetheless, there are several indicia that 'appeal,' as used in § 3006A(c), was intended to include proceedings in this Court.
20
Different versions of the Act—all based upon the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice report of 1963—were passed in each of the Houses of Congress. A conference committee ironed out the differences and its House members afterwards reported concerning the present language of subsection (c):
21
'Implied in the Senate version, and expressed in the House version, is the right of a defendant to have counsel appointed at any stage of the proceeding; i.e., before the commissioner, the district court, the court of appeals, or the Supreme Court.' H.R.Rep. No. 1709, 88th Cong., 2d Sess., 7 (1964); U.S.Code Cong. & Admin. News 1964, p. 3003 (emphasis added).
22
At least two exchanges during the floor debates made explicit that proceedings in this Court were within the Act's coverage.9
23
Moreover, the Judicial Conference's Committee to Implement the Criminal Justice Act of 1964 submitted in 1965 an interim recommendation that:
24
'(C)ounsel appointed on appeal should advise the defendant of his right to initiate a further review by the filing of a petition for certiorari, and to file such petition, if requested by the defendant.' Report on Criminal Justice Act, 36 F.R.D. 285, 291 (1965).10
25
As mentioned earlier, this recommendation has been adopted by all of the circuit conferences.
26
And our own rules have been amended to implement our participation under the Act in cases where we grant certiorari or note probable jurisdiction. Supreme Court Rule 53(8).
27
Other indicators of intent are found in the Attorney General's Committee study. One of its recommendations was that a lawyer appointed by the trial court should have incentives to represent the accused in the subsequent stages of the case including 'any appellate proceedings.' Hearings on S. 1057 before the Senate Committee on the Judiciary, 88th Cong., 1st Sess., 183, 205 (1963). Presumably a purpose to excise the step during which certiorari petitions are prepared would have avoided the phrase 'any appellate proceedings' and substituted instead 'proceedings before the Courts of Appeals.' Moreover, the study group recommended that the Act cover probation and parole revocation hearings, a suggestion accepted by the legislature. Id., at 210, 18 U.S.C. § 3006A(a). It is difficult to ascribe to Congress a purpose to extend the assistance of counsel to paupers in these ancillary matters but to withhold it when they petition for certiorari.
28
It is clear that the help of counsel was meant to be available during review by this Court both in filing for certiorari and on the merits. It cannot seriously be urged against this backdrop, that Congress intended to leave lawyerless those relatively infrequent and impecunious petitioners who request counsel only after court of appeals have adversely decided their claims. In such situations as this one, the judicial function is to resolve ambiguous statutory language in light of the underlying purposes of the measure.
29
Since the applicant is entitled to counsel to aid in his preparation of his petition for writ of certiorari, the only question which remains is whether it is the duty of the court of appeals or of this Court to make an appointment. Given the existing apparatus of the courts of appeals for the purpose of appointing counsel for their improverished appellants, it would seem to be little burden upon them to process applications such as this one. Also, local appointments would facilitate swift filings of those etitions within the time limits prescribed by Supreme Court Rule 22(2). The conclusion that the duty to process these requests should lie with the courts of appeals, rather than this Court, has been suggested elsewhere. Boskey, The Right to Counsel in Appellate Proceedings, 45 Minn.L.Rev. 783 (1961).
30
I join the Court in remanding the case so that the Court of Appeals may reconsider the application. I agree that it should enter a new decree so that Doherty's time within which he may file his certiorari papers may run anew.
*
The Ninth Circuit rule provides:
'Following decision on appeal, if the appeal is unsuccessful, counsel appointed shall advise the defendant of his right to initiate a further review by the filing of a petition for certiorari, and, if requested to do so by the defendant, file such petition. If the defendant does not desire to seek certiorari, counsel shall file with the Clerk a statement to that effect, signed by counsel and the defendant. If the defendant refuses to sign, counsel shall so state.' Rules of the United States Court of Appeals for the Ninth Circuit, App. 4(c).
1
Act of Aug. 20, 1964, Pub.L.No.88—455, 78 Stat. 552. As amended by Act of Oct. 14, 1970, Pub.L.No.91—447, 84 Stat. 916, the Criminal Justice Act is codified at 18 U.S.C. § 3006A.
2
It appears that the Court of Appeals for the Sixth Circuit, 438 F.2d 1279 has first accepted and then rejected a similar interpretation of its analogous rule. Beasley v. United States, No. 70—5146, O.T., 1971 (motion for rehearing on denial of certiorari, 404 U.S. 866, 92 S.Ct. 124, 30 L.Ed.2d 110). All of the circuits based their implementing rules on a draft proposal made by the Judicial Conference's Committee to Implement the Criminal Justice Act of 1964, discussed infra. The plans adopted by the 11 circuits are reproduced in 1A West's Federal Forms, Supreme Court, § 488 (B. Boskey ed. 1969).
3
This Act as amended is codified at 18 U.S.C. § 3771. In 1934 Congress had directed the Supreme Court to prescribe procedures in criminal cases in federal district courts after a verdict of guilty had been entered. Act of Mar. 8, 1934, 48 Stat. 399, amending Act of Feb. 24, 1933, 47 Stat. 904, now codified as amended, 18 U.S.C. § 3772. These early rules did not address the issue of indigents' representation on appeal of convictions. 292 U.S. 659. Together these Acts provide the Supreme Court with rulemaking authority over all procedural aspects of the federal criminal judicial rpocess.
4
Two preliminary drafts of the proposed amendments were prepared by the Committee on Rules of Practice and Procedure of the Judicial Conference. The first, proposed in 1962, did not expressly provide for appointments on appeal. See Preliminary Draft of Proposed Amendments to Rules of Criminal Procedure for the United States District Courts (Dec.1962). The second draft as it appears in the text was issued in 1964. Second Preliminary Draft of Proposed Amendments to Rules of Criminal Procedure for the United States District Courts (Mar. 1964).
5
Boskey, The Right to Counsel in Appellate Proceedings, 45 Minn.L.Rev. 783 (1961).
6
Once a discretionary appointment under 18 U.S.C. § 3006A(g) has been made in such collateral matters, an indigent is automatically entitled (as in prosecutions on direct review) to counsel's aid in petitioning for certiorari in the event his appeal is adversely decided by the court of appeals. See, for example, the Fifth Circuit Plan Under the Criminal Justice Act, Rule 7(I)(4) and (III)(4), 28 U.S.C.A. (Supp.1972).
7
18 U.S.C. § 3006A(d).
8
This provision was added by the Act of Oct. 14, 1970, Pub.L.No.91—447, 84 Stat. 916.
9
One of the sponsors of the House bill was Congressman Moore, who replied in response to a question concerning ceilings on total fees a single attorney could be paid under the Act, 'May I answer that by saying the $500 limitation applies, if the appointed attorney represents the defendant before a Commissioner and all the way to the Supreme Court—$500 is the total compensation allowed.' 110 Cong.Rec. 446. See also id., at 450 (remarks of Congs. Moore and Kastenmeier).
10
The Committee reaffirmed this conclusion at the September 22—23, 1965, meeting of the Conference. Report of the Proceedings of the Judicial Conference of the United States, Sept. 22—23, 1965, p. 75.
| 12
|
404 U.S. 23
92 S.Ct. 181
30 L.Ed.2d 143
Irving J. ENGELMAN et al.v.Carolyn AMOS et al.
No. 70—33.
Nov. 9, 1971.
PER CURIAM.
1
The motion of appellee Amos for leave to proceed in forma pauperis is granted.
2
A three-judge District Court, Mr. X v. McCorkle, 333 F.Supp. 1109 has enjoined New Jersey officials from enforcing a state regulation applicable to payments under the federally financed program for Aid to Families With Dependent Children. Title IV of the Social Security Act of 1935, 49 Stat. 627, as amended, 42 U.S.C. §§ 601—610.
3
The regulation in question, § 615 of the New Jersey Categorical Assistance Budget Manual, would deny AFDC benefits to the extent that a family's 'total available adjusted income,' calculated without deduction for the 'income disregards' specified by § 402(a)(8) of the federal Act, 42 U.S.C. § 602(a)(8), exceeds a ceiling specified by the State. The regulation is challenged on the grounds (1) that it is in conflict with § 402(a)(8), and (2) that it fails to provide that, in the calculation of earned family income which is to be compared with the § 615 ceiling, a stepfather's earnings are not to be taken into account unless they are 'actually available' for the current use of the dependent child, 45 CFR § 233.20(a)(3)(ii). It was also suggested in the proceedings below that § 615.5 of the state regulation conflicts with § 406(b) of the federal Act, 42 U.S.C. § 606(b), when it authorizes payments directly to vendors who provide goods or services to beneficiaries.
4
The District Court upheld the challenge on all three grounds. Judgment was entered enjoining the enforcement of § 615 'insofar as it violates the federal statute' and ordering that New Jersey 'revise the regulation to conform to the federal statute.' The state officials appeal.
5
The appellants and also the United States, in its amicus curiae brief, appropriaely point out that there is nothing in the federal statute that prohibits a State from making vendor payments so long as they are made from state funds without federal matching. The statute, § 406, merely does not provide for reimbursement to the State for payments of that kind. We agree with these observations by the appellants and the amicus, and thus disagree with the District Court's conclusion with respect to direct payments insofar as those payments are made entirely with state funds not reimbursable under § 406 of the federal Act. With this limitation in the application of its general language, the judgment of the District Court is affirmed.
6
Affirmed.
| 12
|
404 U.S. 25
92 S.Ct. 180
30 L.Ed.2d 146
Lynda M. JENNINGSv.Jack MAHONEY, Director, Financial Responsibility Division, Dept. of Public Safety of the State of Utah.
No. 71—5179.
Decided Nov. 9, 1971.
PER CURIAM.
1
Appellant, a Utah motorist, was involved in a collision. Both drivers and a police officer who investigated the accident filed accident reports with Utah's Department of Public Safety as required by the Utah Motor Vehicle Safety Responsibility Act. Without affording appellant a hearing on fault, and based solely on the contents of the accident reports, the Director of the Financial Responsibility Division determined that there was a reasonable possibility that appellant was at fault. Appellant did not carry liability insurance and was unable to post security to show financial responsibility. The Director therefore suspended her license. A Utah District Court sustained the Director, and the Supreme Court of Utah affirmed. 26 Utah 2d 128, 485 P.2d 1404 (1971).
2
The proceedings were authorized under Utah Code Ann.1953, §§ 41—12—2(b) and 41—6—35 (1953). Appellant attacks the statutory scheme as not affording the procedural due process required by our decision in Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). We there held that the Georgia version of a motor vehicle responsibility law was constitutionally deficient for failure to afford the uninsured motorist procedural due process. We held that although a determination that there was a reasonable possibility that the motorist was at fault in the accident sufficed, 'before the State may deprive (him) of his driver's license and vehicle registration,' the State must provide 'a forum for the determination of the question' and a 'meaningful . . . 'hearing appropriate to the nature of the case." Id., at 541 542, 91 S.Ct., at 1591. Appellant submits that Utah's statutory scheme falls short of these requirements in two respects: (1) by not requiring a stay of the Director's order pending determination of judicial review, the scheme leaves open the possibility of suspension of licenses without prior hearing; (2) in confining judicial review to whether the Director's determination is supported by the accident reports, and not affording the motorist an opportunity to offer evidence and cross-examine witnesses, the motorist is not afforded a 'meaningful' hearing.
3
There is plainly a substantial question whether the Utah statutory scheme on its face affords the procedural due process required by Bell v. Burson. This case does not, however, require that we address that question. The District Court in fact afforded this appellant such procedural due process. That court stayed the Director's suspension order pending completion of judicial review, and conducted a hearing at which appellant was afforded the opportunity to present evidence and crossexamine witnesses. Both appellant and the Director testified at that hearing. The testimony of the investigating police officer would also have been heard except that appellant's service of a subpoena upon him to appear was not timely under the applicable court rules. court rules.
4
The judgment of the Utah Supreme Court is affirmed.
5
Affirmed.
| 34
|
404 U.S. 37
92 S.Ct. 185
30 L.Ed.2d 198
NORFOLK AND WESTERN RAILWAY COMPANY, Petitioner,v.Richard NEMITZ et al.
No. 70—97.
Argued Oct. 21, 1971.
Decided Nov. 15, 1971.
Rehearing Denied Jan. 10, 1972.
See 404 U.S. 1026, 92 S.Ct. 668.
Martin M. Lucente, Chicago, Ill., for petitioner.
Thomas J. Murray, Jr., Sandusky, Ohio, for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
In connection with a 1964 consolidation by which petitioner railway company absorbed New York, Chicago & St. Louis R. Co. (Nickel Plate), the so-called Sandusky Line, running from Columbus, Ohio, to Sandusky, Ohio, was acquired from the Pennsylvania Railroad system. Respondents were at the time employees of the Pennsylvania on the Sandusky Line. Their work was seasonal because the winter freeze barred navigation on Lake Erie. During those periods junior employees of Sandusky worked at other points on the Pennsylvania's Toledo Division.
2
In anticipation of the 1964 consolidation, petitioner entered into an agreement with 19 labor organizations for protection of the employees of the several railroads coming into the consolidation, including those on the Sandusky Line. Petitioner agreed to employ 'all employees of the lines involved with the guarantee that they will not be adversely affected in their employment as a result of the proposed transactions or for any reason other than furloughs due to seasonal requirements or a decline in volume of traffic or revenue.' 324 D.C.C. 1, 89 (emphasis added).
3
Each employee was to receive a monthly supplement to his post-consolidation monthly earnings equal to the excess, if any, of his average monthly compensation for the 12 months prior to the consolidation in which he had performed services.
4
Some 96 Sandusky Line employees elected to accept employment with petitioner on the terms and conditions stated. Twenty-five were junior men who had worked seasonally on the Toledo Division and they were the plaintiffs in this action.
5
The consolidation took place and over a year elapsed during which these trainmen were not paid the compensation promised. Arbitration pursuant to the collective agreement was agreed upon. At that point in 1965 the union and petitioner entered into a new agreement which reduced substantially the benefits of the junior trainmen who had been Sandusky Line employees. The District Court (287 F.Supp. 221; 309 F.Supp. 575) held that this new agreement was not enforceable as a matter of law as it violated the Act under which the consolidation or merger took place. The Court of Appeals affirmed, 436 F.2d 841, with a modification that the damages due respondent-employees should be determined by the District Court, not through arbitration. The case is here on a petition for a writ of certiorari which we granted, 402 U.S. 994, 91 S.Ct. 2171, 29 L.Ed.2d 159.
6
Section 5(2)(f)1 of the Interstate Commerce Act as amended, 54 Stat. 906, 49 U.S.C. § 5(2)(f), provides that in mergers and consolidations 'the Commission shall require a fair and equitable arrangement to protect the interests of the railroad employees affected' for a period of four years.
7
The ICC in its approval of the consolidation or merger (324 I.C.C. 1, 106 (1964)) stated that the agreements respecting, inter alia, the rights of the Sandusky Line employees were 'made pursuant to and in conformity with section 5(2)(f) of the Interstate Commerce Act for the protection of covered employees.'2
8
It construed the agreements as requiring 'that job eliminations as a result of the proposed acquisition of control be accomplished only through normal attrition.' Ibid.
9
The mandate of § 5(2)(f) seems clear enough: the Commission 'shall require a fair and equitable arrangement to protect the interests of the railroad employees affected.' The Commission, as noted, said that the conditions protective of the employees were made pursuant to and in conformity with the provisions of § 5(2)(f) and it gave its authorization 'subject to such agreements.' 324 I.C.C., at 50. The Solicitor General and the ICC argue in their amicus curiae brief that the last sentence of § 5(2)(f) the 'notwithstanding' provision—relieved the Commission of any duty to review the adequacy of the protective provisions contained in a collective-bargaining agreement, and that they were not accorded protection by the ICC order.3
10
We disagree with that view. We reviewed the history of § 5(2)(f) in Railway Labor Executives' Assn. v. United States, 339 U.S. 142, 70 S.Ct. 530, 94 L.Ed. 721, and said that 'one of its principal purposes was to provide mandatory protection for the interests of employees affected by railroad consolidations.'4 Id., at 148, 70 S.Ct., at 533. That 'mandatory protection' can be accorded by terms provided by the Commission, or, as is more likely, by provisions of a collective agreement which the Commission adopts or approves as adequate for a minimum of four years (as required by the second sentence) or longer (as allowed by the first sentence) if the Commission so provides. Id., at 154, 70 S.Ct., at 536. The purpose of § 5(2)(f) was not to freeze jobs but to provide compensatory conditions. Brotherhood of Maintenance of Way Employes v. United States, 366 U.S. 169, 175—176, 81 S.Ct. 913, 916—917, 6 L.Ed.2d 206. In that case we noted that the Commission has consistently followed that practice 'in over 80 cases, with the full support of the intervening brotherhoods.' Id., at 177, 81 S.Ct., at 917. And the Commission over and over again has adopted the set of labor conditions contained in collective agreements in discharge of its duty under § 5(2)(f). See Gulf, M. & O.R. Co. Purchase, 261 I.C.C. 405, 434; Erie R. Co. Trackage Rights, 295 I.C.C. 303, 305; Delaware, L. & W.R. Co. Trackage Rights, 295 I.C.C. 743, 755—756.
11
When there is a collective agreement and the Commission, as here, adopts or approves it, the 'notwithstanding' sentence of § 5(2)(f) is not, as suggested, read out of the Act. The collective agreement then becomes a 'condition' of the Commission's 'approval' of the consolidation under the first sentence of § 5(2) (f) and its provisions are deemed by the Commission to be 'a fair and equitable arrangement to protect the interests' of the employees within the meaning of the first sentence. Thus, the significance of the 'notwithstanding' proviso is that it provides the machinery for the terms of a pre-merger collective agreement and thus supplies the minimum measure of fairness required under the first sentence of § 5(2)(f).
12
In 1965 an implementing agreement, entered into after the consolidation, was made between the union and petitioner. It is petitioner's claim that it limited these junior employees to their average monthly earnings on the Sandusky Line during the 12 months before the consolidation, regardless of how many months the employees had worked during that period on other sections of the Toledo Division. That is to say, each of them would receive under the 1965 implementing agreement an average monthly compensation based only on their seasonal Sandusky Line work. Thus, respondent Nemitz had an average monthly compensation of $583.34 representing pre-consolidation work on several sections of the Toledo Division. Under the § 5(2)(f) agreement governing the consolidation, his earnings would be supplemented to the extent that his post-consolidation monthly earnings fell short of $583.34. Under the 1965 agreement his average monthly compensation, based solely on his work on the Sandusky Line, would not be paid if, as likely, he received would not be paid if, as likely, he received that much in unemployment compensation. The 1965 agreement obviously placed these junior employees 'in a worse position with respect to compensation,' as those words are used in the pre-consolidation agreement. For they no longer could work on any part of the former Toledo Division except the Sandusky Line and their prior compensation, reflecting in part work on other parts of the Toledo Division, was no longer a measure of the 'compensation' to which they were entitled under the pre-consolidation agreement. For those whose historical average monthly earnings were so slight that they were now on unemployment insurance, the result would be much more drastic than 'normal attrition,' which the Commission said was the only whay under the protective conditions by which jobs would be eliminated. The Court of Appeals said:
13
'An agreement made pursuant to the last sentence of Sec. 5(2)(f) may vary the protections afforded by the I.C.C. order, but it may not substantially abrogate employees' rights grounded in an I.C.C. order.' 436 F.2d at 848.
14
We agree with that view. We also agree that the 1965 implementing agreement5 abrogated the standard of 'compensation' covered by the pre-consolidation agreement6 which had come under the protective order of the Commission.
15
The judgment below is therefore affirmed.
16
Affirmed.
17
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE and Mr. Justice WHITE join, dissenting.
18
I am sympathetic with the respondents and with the unfortunate predicament in which, largely by their own acts, they find themselves. I feel, however, that the Court's decision to the effect that federal district court jurisdiction exists here and that the judgment of the Court of Appeals is to be affirmed amounts only to a sympathetically imposed judicial cure that is not authorized by the Interstate Commerce Act, that is violative of Congress' intent, and that ignores unusually clear legislative history.
19
In January 1962 the Norfolk & Western and the respondents' own Brotherhood, and others, entered into an agreement for the protection of employees in the event of approval of the anticipated merger. This agreement, by the express terms of its paragraph VIII, was directed to 'the last sentence of Section 5(2) (f) of the Interstate Commerce Act.' In October 1965 the railroad and the union, and others, entered into an Implementing Agreement. It then follows, it seems to me, that a number of factors demand a result opposite to that reached by the Court:
20
1. The very language of the statute. Section 5(2)(f) was added to the Interstate Commerce Act by the Transportation Act of 1940, 54 Stat. 906. It is the Act's only provision relating to employee benefits. The thrust of the subsection's third and last sentence, beginning with the exclusionary word 'notwithstanding,' is crucial here.
21
The first sentence directs the Interstate Commerce Commission, as a condition of its approval of any railroad merger, to 'require a fair and equitable arrangement to protect the interests of the railroad employees affected.' The second sentence states that in its order of approval the Commission shall include provisions protective for a four-year period. The third sentence then reads:
22
'Notwithstanding any other provisions of this Act, an agreement pertaining to the protection of the interests of said employees may hereafter be entered into by any carrier or carriers by railroad and the duly authorized representative or representatives of its or their employees.'
23
This plain and unambiguous 'notwithstanding' language, obviously and necessarily directed to and affecting only the two preceding sentences, requires that an agreement entered into by the carrier and the collective-bargaining representative be controlling. The two preceding sentences have application, therefore, only when an agreement 'pertaining to the protection of the interests of said employees' is not executed. In the case before us the carrier and the Brotherhood did execute an agreement of the kind specified, and the 'notwithstanding' language should come into play. The Court today nullifies that sentence and reads it out of the Act.
24
2. The legislative history. This history is clearly antagonistic to respondents' position here. The Transportation Act of 1940 was no accident or floor-conceived legislation. Indeed, Senator Wheeler was led to 'venture the assertion that the bill was given more careful and more thoughtful consideration than any other bill which has ever come before the Senate in my time.' 86 Cong.Rec. 11270. It emerged from the economically distressed days of the 1930's, from the Washington Job Protection Agreement of 1936 (see Hearings on H.R. 2531 before the House Committee on Interstate and Foreign Commerce, 76th Cong., 1st Sess., vol. 1, p. 231), and from recommendations of President F. D. Roosevelt's Committee of Six (see Hearings, supra, at 259).
25
What is now § 5(2)(f) was not contained in the original House version (H.R. 4862, 76th Cong., 1st Sess.), or in the original Senate version (S. 2009, 76th Cong., 1st Sess.), or, indeed, in the draft contained in the initial H.R.Conf.Rep.No.2016 of April 26, 1940, 76th Cong., 3d Sess. It surfaced as § 7 of the revised draft submitted with the supplanting H.R.Conf.Rep.No.2832 of August 7, 1940, 76th Cong., 3d Sess.
26
The new language replaced the earlier Harrington Amendment to the House version. The reasons for the change effected by the conferees are set forth on pages 68—69 of H.R.Conf.Rep.No.2832. Although the comments there do not focus on the 'notwithstanding' sentence, its purpose and significance are apparent from the debates.
27
Representative Harrington had succeeded in amending the House bill to include a directive that the Commission approve no transaction resulting in unemployment or displacement of employees. 84 Cong.Rec. 9882, 9886, 10127. The conference committee, however, eliminated all employee-protection provisions. When the bill again reached the House floor, Mr. Wadsworth proposed the recommitment of the bill with instructions, among others, to include merger provisions and the 'notwithstanding' sentence, drafted by the railroad unions themselves. 86 Cong.Rec. 5886. As to that sentence, Congressman Harrington, an advocate of compulsory employee protection, had said:
28
'But this provision also contains a clause that permits the industry, through the processes of collective bargaining, to work out its problems in a democratic manner.' 86 Cong.Rec. 5871.
29
The motion to recommit passed. The conference committee in due course then reported § 5(2)(f) in its present form. Congressman Wolverton, a conferee, spoke in support of the revised bill:
30
'And, then there was also further uncertainty in the opinion of some representatives of railroad labor as to whether the language of the amendment might not preclude voluntary agreements, between management and men by collective bargaining, from being entered into.
31
'I want, however, to make it clear that no one who expressed the opinions I have mentioned thought for a moment that any of these possibilities were ever intended by the sponsors of the amendment.' 86 Cong.Rec. 10189.
32
And Congressman Lea referred to the 'notwithstanding' sentence as 'a provision confirming the right of employees to enter into agreements with railroads to take care of them in case of unemployment as a result of consolidations.' 86 Cong.Rec. 10178.
33
For me, all this evinces a clear and positive intent on the part of the authors of this legislation to make appropriate provision for employee protection, but explicitly to withdraw Commission-dictated protection whenever the carrier and the union, before merger, voluntarily arrive at protective provisions satisfactory to them. This was the purpose of the 'notwithstanding' clause. Furthermore, it is in accord with the 'strong federal labor policy against governmental interference with the substantive terms of collective-bargaining agreements.' Chicago & North Western R. Co. v. United Transportation Union, 402 U.S. 570, 579 n. 11, 91 S.Ct. 1731, 1736, 29 L.Ed.2d 187 (1971). In my view, the Court's decision today, and the decisions of the District Court and the Court of Appeals, overlook or choose to ignore this purpose and this legislative history. Instead, a result is achieved that is the exact opposite of the congressional intent and policy.
34
Respondents urge that this Court in the past has recognized the Commission's responsibility to review the sufficiency of third-sentence voluntary agreements and to 'adopt' them as part of its orders, citing Railway Labor Executives' Assn. v. United States, 339 U.S. 142, 70 S.Ct. 530, 94 L.Ed. 721 (1950), and Brotherhood of Maintenance of Way Employes v. United States, 366 U.S. 169, 81 S.Ct. 913, 6 L.Ed.2d 206 (1961). These are the only two decisions the Court produces to support its theory of jurisdiction. Neither is apposite. The former case presented the question whether under sentence two the Commission had the power to precribe protective provisions extending beyond the four-year period to which that sentence refers. The holding was in the affirmative. The Court now makes much of the language of 'mandatory protection' in that decision. But no premerger voluntary agreement had been made there, and the effect of sentence three did not enter the case. Nor had a pre-merger agreement been reached in the latter Maintenance of Way case, where the issue was whether, when the Commission formulates its own protective provisions under sentence two, it must require the carrier to retain employees for the four-year period or simply to guarantee them equivalent compensation. The disagreement between the parties there arose at the Commission hearing on what protective arrangements should be imposed by the Commission in fulfillment of its sentence two duty.
35
The Commission seems consistently to have taken a position in line with the legislative history noted above, and with the clear meaning of the 'notwithstanding' sentence. See, e.g., Great Northern Pacific & Burlington Lines-Merger-Great Northern R. Co., 331 I.C.C. 228, 278 (1967); Pennsylvania R. Co.-Merger-New York Central R. Co., 327 I.C.C. 475, 544 (1966); Norfolk & Western R. Co. and New York, Chicago & St. Louis R. Co.-Merger, 324 I.C.C. 1, 9, 90 (1964); Missouri Pacific R. Corp. in Nebraska Trustee Operation, 247 I.C.C. 653, 657 (1941).
36
Neither respondents nor the Court points to a single instance in which a pre-merger voluntary protective agreement directed at § 5(2)(f) was either reviewed and found wanting by the Commission, or was 'included' in the Commission's order in any sense except that recognition of the existence of such an order is necessary for the Commission to relieve itself of the duty that would otherwise be imposed on it by sentence two.*
37
3. The effect on collective bargaining. The result reached by the Court appears to me to require the ICC and the courts always to intrude upon collective bargaining, by reviewing the sufficiency of its substantive product, and thereby to discourage and to downgrade the collective-bargaining process that has been so firmly established in this area and so steadfastly protected. See, for example, International Association of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961). As this case makes only too clear, the general standard of sentence two of § 5(2)(f), namely, 'a worse position with respect to their employment,' permits of widely varying interpretations when applied to specific dilemmas such as that of the respondents here. The Court's holding implies for me that any agreement between the carrier and the Brotherhood pursuant to sentence three of § 5(2)(f), however protective, is nevertheless not to be regarded as controlling if it is subsequently deemed less protective than Commissioners or judges think it should have been. Neither the language nor the legislative history warrants our espousing such judicial overview.
38
4. The facts and the element of choice. Contrary to the impression one might receive from a quick appraisal of either the opinions below or that of the Court here, it is not at all clear that the Implementing Agreement took from respondents something they had a reasonable expectation of receiving when the merger was approved. On its face, the application to respondents of the 1962 agreement, the language of which ('placed in a worse position with respect to compensation') reflected the generality of § 5(2)(f), is ambiguous. Interpretation of this language necessarily requires an understanding of the parties' original intentions with respect to Sandusky Line employees. Respondents were not without a substantial measure of selection of their future work at the time of the transfer of the Sandusky Line. That choice was between continued employment with the Pennsylvania, with seniority on its Toledo division maintained, or abandoning a part of their working territory and casting their lot with Norfolk & Western as acquirer of the Sandusky Line. Had they chosen to stay with the Pennsylvania, as it appears the parties to the agreement expected they would, respondents would not have brought on their present plight. For personal reasons such as, perhaps, residence in Sandusky (a factor of less than ideal convenience in the off-season regardless of the choice they made), they chose the other course and incurred the risks both of new employment and of the application of the protective provisions to them under the unexpected circumstances. This situation highlights the wisdom of the policy of § 5(2)(f), namely, to leave the solution of their problem to their own Brotherhood (their bargaining representative with the Norfolk & Western as well as with the Pennsylvania), rather than to the benevolent hindsight of the Commission or of a court.
39
All this propels me to the conclusion that the Commission may not be held to have reviewed and incorporated the 1962 agreement into its 1964 order authorizing the merger. All it did was to state that its duty to see to the protection of employees under § 5(2)(f) was satisfied by the execution of the 1962 agreement. It follows that there was no district court jurisdiction and that the respondents' complaint should have been dismissed.
1
It provides:
'As a condition of its approval, under this paragraph, of any transaction involving a carrier or carriers by railroad subject to the provisions of this chapter, the Commission shall require a fair and equitable arrangement to protect the interests of the railroad employees affected in its order of approval the Commission shall include terms and conditions providing that during the period of four years from the effective date of such order such transaction will not result in employees of the carrier or carriers by railroad affected by such order being in a worse position with respect to their employment, except that the protection afforded to any employee pursuant to this sentence shall not be required to continue for a longer period, following the effective date of such order, than the period during which such employee was in the employ of such carrier or carriers prior to the effective date of such order. Notwithstanding any other provisions of this Act, an agreement pertaining to the protection of the interests of said employees may hereafter be entered into by any carrier or carriers by railroad and the duly authorized representative or representatives of its or their employees.'
2
The Commission stated in its Report, 324 I.C.C. 1, 50:
'As previously stated herein and in appendix A, various agreements have been reached between employee representatives and
the Norfolk & Western for the protection of employees adversely affected by these transactions. Our authorizations herein will, by reference, be made subject to such agreements. * * *
'We find that, as conditioned herein, the transactions under consideration meet the requirements prescribed by sections 5(2) and 20a of the act and conform generally with the purposes and objectives of the national transportation policy declared by Congress. We are convinced that the transactions should be approved.'
In the Appendix to its Report and Order, 324 I.C.C., at 89, the Commission continued:
'Norfolk & Western has entered into an agreement with 19 of the principal labor organizations, members of the Railway Labor Executives' Association, for the protection of employees of Norfolk & Western, Nickel Plate, and Wabash, as well as persons employed on the Sandusky Line of Pennsylvania, represented by these organizations. This agreement, which provides for the assumption by Norfolk & Western of all outstanding labor contracts, schedules and agreements of Nickel Plate and Wabash, as well as those having application of the Sandusky Line, basically requires that job eliminations as a result of the unification be accomplished only through normal attrition. Under its terms, Norfolk & Western agrees to take into its employment, upon consummation of the merger, lease, and purchase, all employees of the lines involved with the guarantee that they will not be adversely affected in their employment as a result of the proposed transactions or for any reason other than furloughs due to seasonal requirements or a decline in volume of traffic or revenue.'
3
The result, of course, would be that there would be no basis for judicial review of the ICC order pursuant to 28 U.S.C. § 1336.
4
A synopsis of the legislative history of § 5(2)(f) is contained in an Appendix to our opinion in St. Joe Paper Co. v. Atlantic Coast Line R. Co., 347 U.S. 298, 315, 74 S.Ct. 574, 583, 98 L.Ed. 1118.
5
The agreement authorized by the Commission when the merger was approved was described as follows by the Commission, Appendix to Report and Order of Interstate Commerce Commission, 324 I.C.C., at 89:
'The agreement also authorized Norfolk & Western to transfer the work of employees throughout the merged system and requires the labor organizations to enter into implementing agreements permitting employees either to follow their work or be assigned to other jobs within their craft or class within the same general locality as existing jobs, following a period of retraining, if necessary, at Norfolk & Western's expense.'
6
The union that negotiated the Implementing Agreement disagreed with that position as did the union's National Board of Appeals. Both, however, proceeded on a mistaken view of the law.
*
Respondents refer to Florida East Coast R. Co. Reorganization, 307 I.C.C. 5 (1958), aff'd, 312 I.C.C. 744, aff'd, 171 F.Supp. 512 (S.D.Fla.1959), but the District Court's decision in that case plainly sustained the Commission's determination that because a bankruptcy reorganization was involved, no part of § 5(2)(f) was applicable.
| 78
|
404 U.S. 59
92 S.Ct. 313
30 L.Ed.2d 217
Fred A. CRUZ et al.v.W. B. 'Bill' HAUCK, Sheriff.
No. 70-5343.
Supreme Court of the United States
November 16, 1971
On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fith Circuit for further consideration in light of Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142.
2
Mr. Justice DOUGLAS, concurring.
3
Petitioners are prisoners who claim that the prison authorities have denied them access to law books needed to seek judicial remedies. They are inmates of the Bexar County Jail in Texas and instituted this action in the District Court to restrain the respondent's interference with their reasonable access to hardbound law books and other legal matter.1 They asserted that county jail regulations and practices deprived them of their rights to seek judicial redress. Their custodians answered that prison security necessitated removing hardback covers as part of an overall scheme to arrest smuggling of contraband. Without conducting a hearing into the matter, the District Court summarily dismissed the complaint.2
4
The question is an important one in the evolution by status and constitutional decisions of a Bill of Rights for prisoners. Prisoners are not statistics, known only to a computer, but humans entitled to all the amenities and privileges of other persons, save as confinement and necessary security measures curtail their activities. Whatever security measures may be needed respecting books, it is not conceivably plausible to maintain that essential books can be totally banned.
5
That question is submerged in this case as the initial issue concerns these prisoners' request to proceed in forma pauperis on appeal from the District Court's dismissal of their action, the Court of Appeals having refused to docket their cases without prepayment of filing fees and security which litigants normally advance.
6
Petitioners filed a timely notice of appeal and pursuant to Fed.Rule App.Proc. 24(a) (first paragraph) sought from the District Judge leave to appeal in forma pauperis as to prepayment of a $25 filing fee3 and the $250 minimum security deposit required by Fed.Rule App.Proc. 7. The District Judge refused the request, certifying in relevant part that: 'This Court . . . is of the opinion that any appeal taken from the order of denial in this case would be frivolous, without merit, and not taken in good faith.'4 No other explanation was offered although in his earlier unreported order dismissing the original action the District Judge said that prisoners do not have 'a right to be furnished with an extensive collection of legal materials' and that courts 'may not interfere with the conduct of a prison.'5
7
Petitioners then applied to the Court of Appeals for a similar waiver of filing fees and security. Their application was denied without opinion6 and their motion for reconsideration was also refused without opinion.7 Presented with their motion for reconsideration were memoranda posing their primary contention now before this Court that these denials of leave to proceed in forma pauperis offended these petitioners' rights of equal access to judicial machinery.8
8
* We have held, in line with Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), that an indigent prisoner cannot be deprived of a direct criminal appeal or of state habeas relief solely on account of his inability to prepay docketing fees. Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.ed.2d 39 (1961) ($4 filing fee for state habeas action and $3 filing fee for appeal therefrom); Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959) ($20 filing fee for discretionary review of criminal appeal).9 In 1892 Congress authorized the federal courts to provide the disadvantaged with a wide range of in forma pauperis relief. Act of July 20, 1892, 27 Stat. 252. The benefits of this generous provision, now codified at 28 U.S.C. § 1915, have been limited, however, by the important proviso added in 1910 (36 Stat. 866) which, as now amended, reads:
9
'An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.'
10
'Good faith' has been defined as a requirement that an appeal present a nonfrivolous question for review. If the district court certifies that an appeal would not present such a question, then an indigent may ask the court of appeals for permission to proceed in forma pauperis. That court must grant the renewed motion if after a de novo determination it disagrees with the district court's application of the good-faith test. If both lower courts refuse permission, then unless this Court vacates the court of appeals' finding, the pauper's appeal is ended without a hearing on the merits. See Fed.Rule App.Proc. 24(a). It is important that in all of these proceedings the only cognizable issue is whether a summary survey (as opposed to plenary deliberation) suggests that a substantial argument could be presented. For a discussion of the procedures employed see Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964).
II
11
Our holdings have steadily chipped away at the proposition that appeals of the poor can be disposed of solely on summary and abbreviated inquiries into frivolity rather than upon the plenary consideration granted paying appellants.10 In Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958), we held that a State may not withhold a transcript and thereby deny an appeal to a poor man merely because a trial judge believed his own conduct had avoided the production of nonfrivolous questions for review. See also Ross v. Schneckloth, 357 U.S. 575, 78 S.Ct. 1387, 2 L.Ed.2d 1547 (1958). In Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963), we decided that an impoverished prisoner's appeal from a state coram nobis hearing could not be thwarted simply because a public defender officer believed his case lacked merit. In Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958), we emphasized that a criminal appellant seeking to establish nonfrivolity under 28 U.S.C. § 1915 is entitled to more than appointed counsel's private view that his appeal would be worthless and that if counsel withdrew for that reason the Court of Appeals was duty-bound to replace him. We have also held that a Court of Appeals may not overrule the permission granted by a District Court to proceed in forma pauperis, McGann v. United States, 362 U.S. 309, 80 S.Ct. 725, 4 L.Ed.2d 734 (1960), but that a Court of Appeals must review de novo a trial judge's certification that an appeal would not be in good faith, Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957).
12
Moreover, in federal criminal appeals on direct review most circuits have provided as a matter of course the entire panoply of § 1915 relief, including counsel, transcripts, and waiver of filing fees and security, merely upon a showing of poverty. And, to the extent that the nonfrivolity test is still enforceable elsewhere, our opinions in Coppedge, supra, and Hardy, supra, have partially attenuated its harsher effects by requiring the appointment of counsel and the provision of transcripts for the preliminary purpose of ascertaining whether appeals would produce worthwhile issues.
13
It is true, of course, that most of these decisions involved criminal appeals rather than civil appeals.11 But the equal protection concept is 'not limited to criminal prosecutions' and its 'protections extend as well to civil matters.' See Williams v. Shaffer, 385 U.S. 1037, 1039, 87 S.Ct. 772, 773, 17 L.Ed.2d 683 (1967). Indeed, last Term, in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), we held on equal protection and due process grounds that a State could not deny a divorce to an impecunious wife solely because she could not pay relatively small filing and service-of-process fees. Moreover, of the Griffin progeny at least two of our opinions concerned civil habeas appeals, condemning filing fees substantially less burdensome than those required below by the Fifth Circuit. See Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966), and Smith v. Bennett,supra. And lower court decisions have nurtured the sturdy expansion of Griffin to non-habeas civil appeals. In a civil rights case similar to the instant one, Lockhart v. D'Urso, 408 F.2d 354 (1969), the Third Circuit held that in forma pauperis aid should normally be granted as a matter of course in order to minimize courts' treatment of litigants based upon economic circumstances. Id., at 355. The upshot of these judicial pronouncements was forcefully summarized by Mr. Justice Black last Term: 'In my view, the decision in Boddie v. Connecticut can safely rest on only one crucial foundation—that the civil courts of the United States and each of the States belong to the people of this country and that no person can be denied access to those courts, either for a trial or an appeal, because he cannot pay a fee, finance a bond, risk a penalty, or afford to hire an attorney.' Meltzer v. C. Buck LeCraw & Co., 402 U.S. 954, 955-956, 91 S.Ct. 1624, 1625, 29 L.Ed.2d 124 (1971) (dissent from denial of certiorari).12
14
The elusive nature of the frivolity standard is partly demonstrated by the number of times this Court has vacated findings of bad faith by the lower courts.13 It is no answer that we may continue to rectify such errors on an ad hoc basis, for even so indigents are nonetheless required to return to courts of appeals and only then—after substantial delay—obtain plenary review on the merits. Coppedge, supra, 369 U.S., at 453, 82 S.Ct., at 925. Wealthier litigants, of course, have no such hurdles to pass before obtaining full review of their assignments of error. Although these hurdles might be justifiable where indigents requested more substantial relief, they are too onerous where all that is at stake is the prepayment of a $25 filing fee and $250 security deposit.
15
It is apparent that this disparate treatment has the effect of classifying appellants according to wealth, which, like race, is a suspect classification. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). See also Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Accordingly, this classification could withstand challenge only upon a showing of compelling circumstances. Respondent offers none but simply repeats the discredited maxim that paupers' appeals are privileges, not rights.14
16
Thus, I would not remand this case on the limited ground that the Court of Appeals may have underestimated the weight of the petitioners' claim. Rather, I would hold that upon a showing of poverty courts of appeals henceforth must waive prepayment and may not inquire into whether an appeal may eventually pose a fruitful issue, at least in cases, such as this one, involving fundamental civil liberties.
17
I would grant certiorari and remand the case to the Fifth Circuit so that these petitioners may have their appeal docketed without prepayment of fees or security.
1
In their complaint petitioners relied upon 28 U.S.C. § 1343(3); 28 U.S.C. § 2201; and 42 U.S.C. § 1983.
2
Cruz v. Hauck, Civil Action SA70CA182 (WD Tex., filed Oct. 30, 1970) (unreported).
3
United States Court of Appeals for the Fifth Circuit Rule 8(d).
4
Cruz v. Hauck, Civil Action SA70CA182 (WD Tex., filed Dec. 3, 1970) (unreported).
5
Cruz v. Hauck, Civil Action SA70CA182 (WD Tex., filed Oct. 28, 1970) (unreported).
6
Cruz v. Hauck, Misc.No.1964 (CA5, filed Feb. 1, 1971).
7
Cruz v. Hauck, Misc.No.1964 (CA5, filed Mar. 12, 1971).
8
The issue at state in the appeal was clearly not frivolous as indicated by our decision in Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142, that there are limits on the extent to which prison officials may restrict inmates' access to law books. On at least 21 occasions this Court has reversed lower courts' holdings that only frivolous claims were sought to be presented. Rubio v. United States, 387 U.S. 90, 87 S.Ct. 1505, 18 L.Ed.2d 587 (1967); Robinson v. United States, 372 U.S. 527, 83 S.Ct. 888, 9 L.Ed.2d 966 (1963); Jones v. United States, 371 U.S. 25, 83 S.Ct. 124, 9 L.Ed.2d 96 (1962); Gilliam v. United States, 370 U.S. 727, 82 S.Ct. 1575, 8 L.Ed.2d 803 (1962); Garrett v. United States, 369 U.S. 662, 82 S.Ct. 1036, 8 L.Ed.2d 274 (1962); Kemp v. United States, 369 U.S. 661, 82 S.Ct. 1036, 8 L.Ed.2d 273 (1962); Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); see 14 cases prior to Coppedge cited id., at 440-441, n. 1, 82 S.Ct. 918.
9
See also Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).
10
Although no explicit equal protection clause is directed by the Constitution against the Federal Government the concept of equal protection of the laws is incorporated into the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).
11
For a discussion of application of our in forma pauperis decisions to civil appeals in the federal courts, see Blackmun, Allowance of In Forma Pauperis Appeals in § 2255 and Habeas Corpus Cases, 43 F.R.D. 343 (1967).
12
Together with seven other cases, 402 U.S. 954 n.*, 91 S.Ct. 1624 n.* (1971).
13
See cases cited at n. 8.
14
Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439 (1968).
| 01
|
404 U.S. 53
92 S.Ct. 174
30 L.Ed.2d 209
A. E. SLAYTON, Jr., Superintendent, Virginia State Penitentiaryv.Lawrence Furman SMITH.
No. 70—108.
Nov. 16, 1971.
PER CURIAM.
1
Respondent's petition for habeas corpus alleged, among other things, that he had been tried and sentenced in the state courts by a senile judge. On appeal from the District Court's dismissal of the petition without a hearing, the Court of Appeals for the Fourth Circuit noted that state remedies had not been exhausted, expressed its confidence that 'if the contention is squarely raised, the state courts will be willing to afford the petitioner a reasonable opportunity to prove his case,' and observed that a claim of judicial senility raised a most 'sensitive issue of state administration of state criminal justice.' 435 F.2d 453, 460 (1970). Despite these judicious observations underscoring the fact that this case was not ripe for federal cognizance, the Court of Appeals vacated the District Court's judgment and remanded for further proceedings with instructions to stay the case until respondent had sought relief in the Virginia state courts.
2
The Court of Appeals' form of 'abstention' is perhaps technically consistent with the statutory prohibition against issuing the writ where state remedies have not been exhausted. 28 U.S.C. § 2254. But, having determined that state remedies had not been exhausted, the Court of Appeals would have better served the policy of the statute had it avoided any implication as to the merits of so delicate a subject. Further, absent special circumstances, cf. Nelson v. George, 399 U.S. 224, 90 S.Ct. 1963, 26 L.Ed.2d 578 (1970), Wade v. Wilson, 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470 (1970), rather than ordering retention of the case on the District Court's docket, the Court of Appeals should simply have vacated the judgment of the lower court and directed dismissal of the petition for failure to exhaust state remedies.
3
The motion of respondent for leave to proceed in forma pauperis and the petition for writ of certiorari are granted, the judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings consistent with this opinion.
4
So ordered.
5
Vacated and remanded.
6
Mr. Justice DOUGLAS, with whom Mr. Justice STEWART joins, believing that the Court of Appeals has observed all the proprieties as well as the requirements of the Act, would affirm its judgment.
| 89
|
404 U.S. 67
92 S.Ct. 326
30 L.Ed.2d 222
Donald Lee SCHREINERv.UNITED STATES.
No. 71-5294.
Supreme Court of the United States
November 16, 1971
On petition for writ of certiorari to the United States Court of Appeals for the Tenth Circuit.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted, the judgment of the Court of Appeals is vacated and the case is remanded to the Court of Appeals for further proceedings, including re-entry of its judgment affirming petitioner's conviction and consideration of the appointment of counsel for petitioner in connection with seeking review in this Court of the judgment of the Court of Appeals. 18 U.S.C. §§ 3006A(c), 3006A(d)(6), 3006A(g). See also H.R.Rep. No. 1709, 88th Cong., 2d Sess., 7 (1964); Report of the Committee to Implement the Criminal Justice Act of 1964, presented to a Special Session of the Judicial Conference of the United States, 36 F.R.D. 285, 291 (1965); Fed.Rule Crim.Proc. 44(a); Doherty v. United States, 404 U.S. 28, 92 S.Ct. 175, 30 L.Ed.2d 149.
2
Mr. Justice DOUGLAS, concurring.
3
Schreiner has a statutory right to the assistance of a lawyer in drafting his petition for certiorari. As I indicated in Doherty v. United States, 404 U.S. 28, 92 S.Ct. 175, 30 L.Ed.2d 149, that right is not conditioned on counsel's appraisal of the merits of the petition. No conditions are attached to rights under Fed.Rule Crim.Proc. 44 and the Criminal Justice Act of 1964. This view was adopted by the Judicial Conference's Committee to Implement the Criminal Justice Act:
4
'[C]ounsel appointed on appeal should advise the defendant of his right to initiate a further review by the filing of a petition for certiorari, and to file such petition, if requested by the defendant.' Report of the Committee to Implement the Criminal Justice Act, 36 F.R.D. 285, 291 (1965).
5
Moreover, the Tenth Circuit has implemented this suggestion. See 1A West's Federal Forms, Supreme Court, § 488 (B. Boskey ed. 1969).
6
There may well be instances where the remedy sought is inappropriate—e. g., an effort to obtain mandamus where the duty is only discretionary. The statute does not, however, permit an indigent's right to be conditioned upon the fortuity of whether a lawyer believes this Court will grant his petition. We ourselves often have difficulty making that prophecy.
| 12
|
404 U.S. 55
92 S.Ct. 183
30 L.Ed.2d 212
Arnold Maxwell HARRISv.WASHINGTON et al.
No. 70—5213.
Decided Nov. 16, 1971.
PER CURIAM.
1
On June 10, 1969, a bomb sent through the mail exploded in the residence of Ralph Burdick in Clark County, Washington. The explosion killed Burdick and the petitioner's infant son, Mark Allen Harris, and seriously injured the petitioner's estranged wife, Laila Violet Harris. The petitioner was tried in a state court for the murder of Ralph Burdick and was acquitted by a jury. He was immediately rearrested on informations charging the murder of Mark Allen Harris and the assault upon Laila Violet Harris. To these informations the petitioner entered pleas of former jeopardy and collateral estoppel, and moved to dismiss. The trial court denied the motion and struck the defenses.
2
The state Court of Appeals, 2 Wash.App. 272, 469 P.2d 937, granted a writ of prohibition on the grounds of collateral estoppel, finding that 'the record demonstrates without question that the retrial of petitioner for assault and murder will require relitigation of the same ultimate fact' determined adversely to the State in the previous trial—i.e., whether it was the petitioner who had mailed the bomb. 2 Wash.App. 272, 291—292, 469 P.2d 937, 948. The Supreme Court of Washington agreed that the same ultimate issue was involved in both prosecutions, but nevertheless reversed the Court of Appeals and denied the writ of prohibition. The court noted that a ruling on the admissibility of evidence during the murder trial had resulted in the exclusion, on grounds having 'no bearing on the quality of the evidence,' of a letter allegedly written by the petitioner and containing threats against the lives of Mr. Burdick and Mrs. Harris. 78 Wash.2d 894, 901, 480 P.2d 484, 487 488. Because of its view that this evidence would clearly be admissible in the second trial, the court held that the issue of identity had not been 'fully litigated' in the previous trial, and that the doctrine of collateral estoppel did not bar a subsequent trial in which litigation of the issue will be 'complete.'
3
Since the state courts have finally rejected a claim that the Constitution forbids a second trial of the petitioner, a claim separate and apart from the question whether the petitioner may constitutionally be convicted of the crimes with which he is charged, our jurisdiction is properly invoked under 28 U.S.C. § 1257. See Mercantile National Bank v. Langdeau, 371 U.S. 555, 558, 83 S.Ct. 520, 522, 9 L.Ed.2d 523.
4
In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, we held that collateral estoppel in criminal trials is an integral part of the protection against double jeopardy guaranteed by the Fifth and Fourteenth Amendments. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. We said that collateral estoppel 'means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.' 397 U.S., at 443, 90 S.Ct., at 1194. The State concedes that the ultimate issue of identity was decided by the jury in the first trial. That being so, the constitutional guarantee applies, irrespective of whether the jury considered all relevant evidence, and irrespective of the good faith of the State in bringing successive prosecutions.
5
Since Ashe v. Swenson, supra, squarely controls this case, the motion for leave to proceed in forma pauperis is granted, the petition for a writ of certiorari is granted, and the judgment is reversed.
6
Reversed.
7
Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL would grant the petition and reverse the judgment both for the reasons stated in the per curiam opinion and for the reasons stated in Mr. Justice BRENNAN'S concurring opinion in Ashe v. Swenson, 397 U.S. 436, 448, 90 S.Ct. 1189, 1196, 25 L.Ed.2d 523.
8
Chief Justice BURGER, dissenting.
9
The Court's summary act without hearing argument in this case is wrong in two respects: first, it is another instance of importing into the administration of criminal justice the civil doctrine of collateral estoppel to which I dissent for the reasons stated in my dissent in Ashe v. Swenson, 397 U.S. 436, 460, 90 S.Ct. 1189, 1202, 25 L.Ed.2d 523 (1970); second, even assuming the collateral estoppel approach has validity, the evidence in this case in the second trial is not the 'same evidence' on which the first case was submitted so that this is not a case for application of that unsound doctrine.
10
Mr. Justice BLACKMUN, dissenting.
11
My own views on the issue presented by this case were expressed when I wrote for the Court of Appeals in Ashe v. Swenson, 399 F.2d 40 (C.A.8 1968), reversed and remanded, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 523 (1970). I am not persuaded as to the rightness of the Court's imposing in that case—as a Fifth Amendment-Fourteenth Amendment imperative—the concept of collateral estoppel upon a state criminal proceeding. I could have understood a flat overruling of Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958), and of Ciucci v. Illinois, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983 (1958), despite the interim appearance of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). But overruling those two cases was a step the Court, for reasons that escape me, refused to take or felt it could not take.
12
Neither am I persuaded by the 'single frolic' or 'one criminal episode' or 'same transaction' theory espoused by the Justices in concurrence in Ashe v. Swenson, 397 U.S., at 448—460, 90 S.Ct., at 1196—1202, 25 L.Ed.2d 523. That approach would place multiple but separate-shot murders under the protective umbrella of double jeopardy. I cannot subscribe to reasoning that would necessarily produce a result of that kind.
13
I therefore dissent.
| 01
|
404 U.S. 71
92 S.Ct. 251
30 L.Ed.2d 225
Sally M. REED, Appellant,v.Cecil R. REED, Administrator, etc.
No. 70—4.
Argued Oct. 19, 1971.
Decided Nov. 22, 1971.
Syllabus
A mandatory provision of the Idaho probate code that gives preference to men over women when persons of the same entitlement class apply for appointment as administrator of a decedent's estate is based solely on a discrimination prohibited by and therefore violative of the Equal Protection Clause of the Fourteenth Amendment.
93 Idaho 511, 465 P.2d 635, reversed and remanded.
Allen R. Derr, Boise, Idaho, for appellant.
Charles S. Stout, Boise, Idaho, for appellee.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
Richard Lynn Reed, a minor, died intestate in Ada County, Idaho, on March 29, 1967. His adoptive parents, who had separated sometime prior to his death, are the parties to this appeal. Approximately seven months after Richard's death, his mother, appellant Sally Reed, filed a petition in the Probate Court of Ada County, seeking appointment as administratrix of her son's estate.1 Prior to the date set for a hearing on the mother's petition, appellee Cecil Reed, the father of the decedent, filed a competing petition seeking to have himself appointed administrator of the son's estate. The probate court held a joint hearing on the two petitions and thereafter ordered that letters of administration be issued to appellee Cecil Reed upon his taking the oath and filing the bond required by law. The court treated §§ 15—312 and 15—314 of the Idaho Code as the controlling statutes and read those sections as compelling a preference for Cecil Reed because he was a male.
2
Section 15—3122 designates the persons who are entitled to administer the estate of one who dies intestate. In making these designations, that section lists 11 classes of persons who are so entitled and provides, in substance, that the order in which those classes are listed in the section shall be determinative of the relative rights of competing applicants for letters of administration. One of the 11 classes so enumerated is '(t)he father or mother' of the person dying intestate. Under this section then appellant and appellee, being members of the same entitlement class, would seem to have been equally entitled to administer their son's estate. Section 15—314 provides, however, that
3
'(o)f several persons claiming and equally entitled (under § 15—312) to administer, males must be preferred to females, and relatives of the whole to those of the helf blood.'
4
In issuing its order, the probate court implicitly recognized the equality of entitlement of the two applicants under § 15—312 and noted that neither of the applicants was under any legal disability; the court ruled, however, that appellee, being a male, was to be preferred to the female appellant 'by reason of Section 15—314 of the Idaho Code.' In stating this conclusion, the probate judge gave no indication that he had attempted to determine the relative capabilities of the competing applicants to perform the functions incident to the administration of an estate. It seems clear the probate judge considered himself bound by statute to give preference to the male candidate over the female, each being otherwise 'equally entitled.'
5
Sally Reed appealed from the probate court order, and her appeal was treated by the District Court of the Fourth Judicial District of Idaho as a constitutional attack on § 15—314. In dealing with the attack, that court held that the challenged section violated the Equal Protection Clause of the Fourteenth Amendment3 and was, therefore, void; the matter was ordered 'returned to the Probate Court for its determination of which of the two parties' was better qualified to administer the estate.
6
This order was never carried out, however, for Cecil Reed took a further appeal to the Idaho Supreme Court, which reversed the District Court and reinstated the original order naming the father administrator of the estate. In reaching this result, the Idaho Supreme Court first dealt with the governing statutory law and held that under § 15—312 'a father and mother are 'equally entitled' to letters of administration,' but the preference given to males by § 15—314 is 'mandatory' and leaves no room for the exercise of a probate court's discretion in the appointment of administrators. Having thus definitively and authoritatively interpreted the statutory provisions involved, the Idaho Supreme Court then proceeded to examine, and reject, Sally Reed's contention that § 15—314 violates the Equal Protection Clause by giving a mandatory preference to males over females, without regard to their individual qualifications as potential estate administrators. 93 Idaho 511, 465 P.2d 635.
7
Sally Reed thereupon appealed for review by this Court pursuant to 28 U.S.C. § 1257(2), and we noted probable jurisdiction. 401 U.S. 934, 91 S.Ct. 917, 28 L.Ed.2d 213. Having examined the record and considered the briefs and oral arguments of the parties, we have concluded that the arbitrary preference established in favor of males by § 15—314 of the Idaho Code cannot stand in the face of the Fourteenth Amendment's command that no State deny the equal protection of the laws to any person within its jurisdiction.4
8
Idaho does not, of course, deny letters of administration to women altogether. Indeed, under § 15—312, a woman whose spouse dies intestate has a preference over a son, father, brother, or any other male relative of the decedent. Moreover, we can judicially notice that in this country, presumably due to the greater longevity of women, a large proportion of estates, both intestate and under wills of decedents, are administered by surviving widows.
9
Section 15—314 is restricted in its operation to those situations where competing applications for letters of administration have been filed by both male and female members of the same entitlement class established by § 15—312. In such situations, § 15—314 provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a classification subject to scrutiny under the Equal Protection Clause.
10
In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923 (1885); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911); Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949); McDonald v. Board of Election Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (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 difference 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, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920). The question presented by this case, then, is whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state objective that is sought to be advanced by the operation of §§ 15—312 and 15—314.
11
In upholding the latter section, the Idaho Supreme Court concluded that its objective was to eliminate one area of controversy when two or more persons, equally entitled under § 15 312, seek letters of administration and thereby present the probate court 'with the issue of which one should be named.' The court also concluded that where such persons are not of the same sex, the elimination of females from consideration 'is neither an illogical nor arbitrary method devised by the legislature to resolve an issue that would otherwise require a hearing as to the relative merits * * * of the two or more petitioning relatives * * *.' 93 Idaho, at 514, 465 P.2d, at 638.
12
Clearly the objective of reducing the workload on probate courts by eliminating one class of contests is not without some legitimacy. The crucial question, however, is whether § 15—314 advances that objective in a manner consistent with the command of the Equal Protection Clause. We hold that it does not. 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; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.
13
We note finally that if § 15—314 is viewed merely as a modifying appendage to § 15—312 and as aimed at the same objective, its constitutionality is not thereby saved. The objective of § 15—312 clearly is to establish degrees of entitlement of various classes of persons in accordance with their varying degrees and kinds of relationship to the intestate. Regardless of their sex, persons within any one of the enumerated classes of that secion are similarly situated with respect to that objective. By providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause. Royster Guano Co. v. Virginia, supra.
14
The judgment of the Idaho Supreme Court is reversed and the case remanded for further proceedings not inconsistent with this opinion.
15
Reversed and remanded.
1
In her petition, Sally Reed alleged that her son's estate, consisting of a few items of personal property and a small savings account, had an aggregate value of less than $1,000.
2
Section 15—312 provides as follows:
'Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, and they are respectively entitled thereto in the following order:
'1. The surviving husband or wife or some competent person whom he or she may request to have appointed.
'2. The children.
'3. The father or mother.
'4. The brothers.
'5. The sisters.
'6. The grandchildren.
'7. The next of kin entitled to share in the distribution of the estate.
'8. Any of the kindred.
'9. The public administrator.
'10. The creditors of such person at the time of death.
'11. Any person legally competent.
'If the decedent was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed administrator of his estate.'
3
The court also held that the statute violated Art. I, § 1, of the Idaho Constitution.
4
We note that § 15—312, set out in n. 2, supra, appears to give a superior entitlement to brothers of an intestate (class 4) than is given to sisters (class 5). The parties now before the Court are not affected by the operation of § 15—312 in this respect, however, and appellant has made no challenge to that section.
We further note that on March 12, 1971, the Idaho Legislature adopted the Uniform Probate Code, effective July 1, 1972. Idaho Laws 1971, c. 111, p. 233. On that date, §§ 15—312 and 15—314 of the present code will, then, be effectively repealed, and there is in the new legislation no mandatory preference for males over females as administrators of estates.
| 12
|
404 U.S. 78
92 S.Ct. 254
30 L.Ed.2d 231
Elliott L. RICHARDSON, Secretary of Health, Education, and Welfare, Appellant,v.Raymond BELCHER.
No. 70—53.
Argued Oct. 13, 1971.
Decided Nov. 22, 1971.
Syllabus
Section 224 of the Social Security Act, which requires a reduction in social security benefits to reflect workmen's compensation payments, has a rational basis and does not violate the Due Process Clause of the Fifth Amendment.
317 F.Supp. 1294, reversed.
Richard B. Stone, Washington, D.C., for appellant.
John Charles Harris, Alexandria, for appellee.
Mr. Justice STEWART delivered the opinion of the Court.
1
The appellee was granted social security disability benefits effective in October 1968, in the amount of $329.70 per month for himself and his family. In January 1969, the federal payment was reduced to $225.30 monthly under the 'offset' provision of Section 224 of the Social Security Act, 79 Stat. 406, 42 U.S.C. § 424a,1 upon a finding that the appellee was receiving workmen's compensation benefits from the State of West Virginia in the amount of.$203.60 per month. After exhausting his administrative remedies, the appellee brought this action challenging the reduction of payments required by § 224 on the ground that the statutory provision deprived him of the due process of law guaranteed by the Fifth Amendment. The District Judge, disagreeing with other courts that have considered the question,2 held the statute unconstitutional. 317 F.Supp. 1294. The Secretary of the Department of Health, Education, and Welfare appealed directly to this Court under 28 U.S.C. § 1252.3 We noted probable jurisdiction, 401 U.S. 935, 91 S.Ct. 937, 28 L.Ed.2d 214, and the case was briefed and argued on the merits. We now reverse the judgment of the District Court.
2
In our last consideration of a challenge to the constitutionality of a classification created under the Social Security Act, we held that 'a person covered by the Act has not such a right in benefit payments as would make every defeasance of 'accrued' interests violative of the Due Process Clause of the Fifth Amendment.' Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435. The fact that social security benefits are financed in part by taxes on an employee's wages does not in itself limit the power of Congress to fix the levels of benefits under the Act or the conditions upon which they may be paid. Nor does an expectation of public benefits confer a contractual right to receive the expected amounts. Our decision in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, upon which the District Court relied, held that as a matter of procedural due process the interest of a welfare recipient in the continued payment of benefits is sufficiently fundamental to prohibit the termination of those benefits without a prior evidentiary hearing. But there is no controversy over procedure in the present case, and the analogy drawn in Goldberg between social welfare and 'property,' 397 U.S., at 262 n. 8, 90 S.Ct., at 1017, cannot be stretched to impose a constitutional limitation on the power of Congress to make substantive changes in the law of entitlement to public benefits.
3
To characterize an Act of Congress as conferring a 'public benefit' does not, of course, immunize it from scrutiny under the Fifth Amendment. We have held that '(t)he interest of a covered employee under the (Social Security) Act is of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause.' Flemming v. Nestor, supra, 363 U.S., at 611, 80 S.Ct., at 1373. The appellee argues that the classification embodied in § 224 is arbitrary because it discriminates between those disabled employees who receive workmen's compensation and those who receive compensation from private insurance or from tort claim awards. We cannot say that this difference in treatment is constitutionally invalid.
4
A statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is 'rationally based and free from invidious discrimination.' Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491. While the present case, involving as it does a federal statute, does not directly implicate the Fourteenth Amendment's Equal Protection Clause, a classification that meets the test articulated in Dandridge is perforce consistent with the due process requirement of the Fifth Amendment. Cf. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884.
5
To find a rational basis for the classification created by § 224, we need go no further than the reasoning of Congress as reflected in the legislative history. The predecessor of § 224, enacted in 1956 along with the amendments first establishing the federal disability insurance program, required a full offset of state or federal4 workmen's compensation payments against benefits payable under federal disability insurance. 70 Stat. 816. It is self-evident that the offset reflected a judgment by Congress that the workmen's compensation and disability insurance programs in certain instances served a common purpose, and that the workmen's compensation programs should take precedence in the area of overlap. The provision was repealed in 1958, 72 Stat. 1025, because Congress believed that 'the danger that duplication of disability benefits might produce undesirable results (was) not of sufficient importance to justify reduction of the social security disability benefits.' H.R.Rep. No. 2288, 85th Cong., 2d Sess., 13.
6
In response to renewed criticism of the overlap between the workmen's compensation and the social security disability insurance programs, Congress reexamined the problem in 1965. Data submitted to the legislative committees showed that in 35 of the 50 States, a typical worker injured in the course of his employment and eligible for both state and federal benefits received compensation for his disability in excess of his take-home pay prior to the disability. Hearings on H.R. 6675 before the Senate Committee on Finance, 89th Cong., 1st Sess., pt. 2, p. 904. It was strongly urged that this situation reduced the incentive of the worker to return to the job, and impeded the rehabilitative efforts of the state programs. Furthermore, it was anticipated that a perpetuation of the duplication in benefits might lead to the erosion of the workmen's compensation programs.5 The legislative response was § 224, which, by limiting total state and federal benefits to 80% of the employee's average earnings prior to the disability, reduced the duplication inherent in the programs and at the same time allowed a supplement to workmen's compensation where the state payments were inadequate.
7
The District Court apparently assumed that the only basis for the classification established by § 224 lay in the characterization of workmen's compensation as a 'public benefit.' Because the state program was financed by employer contributions rather than by taxes, the court held that the 'public' characterization afforded no rational basis to distinguish workmen's compensation from private insurance. We agree that a statutory discrimination between two like classes cannot be rationalized by assigning them different labels, but neither can two unlike classes be made indistinguishable, by attaching to them a common label. The original purpose of state workmen's compensation laws was to satisfy a need inadequately met by private insurance or tort claim awards. Congress could rationally conclude that this need should continue to be met primarily by the States, and that a federal program that began to duplicate the efforts of the States might lead to the gradual weakening or atrophy of the state programs.
8
We have no occasion, within our limited function under the Constitution, to consider whether the legitimate purposes of Congress might have been better served by applying the same offset to recipients of private insurance, or to judge for ourselves whether the apprehensions of Congress were justified by the facts. If the goals sought are legitimate, and the classification adopted is rationally related to the achievement of those goals, then the action of Congress is not so arbitrary as to violate the Due Process Clause of the Fifth Amendment.
9
The judgment is reversed.
10
Reversed.
11
Mr. Justice DOUGLAS, dissenting.
12
I would affirm the judgment of the District Court. The statutory classification upheld today is not 'rationally based and free from invidious discrimination.' Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491. It is, in my view, violative of the Federal Government's obligation under the Fifth Amendment's Due Process Clause to guarantee to all citizens equal protection of the laws. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884.
13
Eligibility for social security disability benefits is premised upon a worker's having attained 'insured' status in the course of an employment 'covered' by the Act. It is undisputed that Raymond Belcher, and through him his wife and two minor children, had so qualified in 1968 when he broke his neck while employed by the Pocahontas Fuel Co. in Lynco, West Virginia. Indeed, his application for such benefits has been approved, and the benefits authorized and paid.
14
Section 224 of the Social Security Act, however, requires that these benefits be substantially reduced solely because Belcher also receives state workmen's compensation payments. It is said that the duplication of benefits impedes rehabilitation, and may lead to a cutting back of state workmen's compensation programs. Ante, at 83.
15
The rehabilitation goal does not explain the special treatment given to workmen's compensation beneficiaries. There are many other important programs, both public and private, which contain provisions for disability payments affecting a substantial portion of the work force, and which do not require an offset under the Social Security Act.
16
Thus, had Belcher's supplemental disability payment come from a Veterans' Administration program,1 a Civil Service Retirement Act2 or Railroad Retirement Act3 annuity, a private disability insurance policy,4 a self-insurer,5 a voluntary wage-continuation plan, or the proceeds in an action in tort arising from the disabling injury, there would have been no reduction in his social security benefits. The offset under § 224 applies only to federal social security disability beneficiaries also receiving workmen's compensation payments, a group which in 1965 totaled only 1.4% of all social security disability beneficiaries.6 Yet, of the 849,000 disabled workers who in 1965 received social security disability benefits,7 over sixteen percent also received overlapping veteran's benefits,8 and almost fourteen percent received benefits from private insurance maintained under the auspices of an employer or a union.9 Congress is, of course, not required to address itself to all aspects of a social problem in its legislation. It must, however, justify the distinctions it draws between people otherwise similarly situated. Rehabilitation incentives are not a rational justification for the discrimination worked by § 224.10 If it is at all rational to argue that duplicating payments 'impede rehabilitation,' the argument must apply to all such payments regardless of their source. The nature of the supplemental benefit has no relation to a worker's incentive to return to work.
17
Nor is § 224 designed to stem a possible 'erosion' of state workmen's compensation plans. As Mr. Justice MARSHALL points out, post, at 263, § 224 itself provides that there shall be no reduction of federal social security benefits with respect to those state workmen's compensation plans which themselves offset federal social security benefits against state payments. Thus, the statute encourages States concerned about overcompensation of disabled workers to cut back on their own programs. But the 'rational basis' discerned by the majority requires the statute to have precisely the opposite purpose.
18
I would affirm the judgment of the District Court.
19
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
20
In my view, the offset provision of § 224 of the Social Security Act, 42 U.S.C. § 424a, 79 Stat. 406, creates an unlawful discrimination under the Due Process Clause of the Fifth Amendment.
21
Before this 53-year-old appellee became disabled in March 1968, he was supporting his wife and two children on total yearly earnings of approximately $6,600. Once disabled, he could not work, but he and his family were awarded federal social security disability benefits totaling $329.70 per month.1 Because his employer had chosen to set up a workmen's compensation fund, appellee also became entitled to workmen's compensation benefits totaling.$203.60 per month. These were his only forms of disability compensation. Had appellee been allowed to keep his initial award of federal benefits, his income would have totaled nearly $6,400 a year, somewhat less than he had earned before his disability. But because of the offset provision of § 224, appellee's monthly federal payments were reduced, solely because the supplement to his federal benefits was in the form of state workmen's compensation. As a result, appellee's total yearly income was reduced to $5,146.80.
22
Appellee complains that the offset provision is unconstitutional because it places its severe burden on a single class of disabled persons without adequate justification. Under the challenged offset provision, federal social security disability benefits are reduced only for those persons whose disability entitles them to workmen's compensation. Other persons who receive other kinds of disability compensation—for example, private insurance benefits or tort damages—are allowed the full amount of federal social security benefits. The question here is whether workmen's compensation beneficiaries may be singled out in this way for a reduction in federal benefits.
23
Starting from the assumptions that federal social security insurance, like welfare assistance, is a 'public benefit' in which the beneficiaries have neither contract nor property interests, and that statutory classifications affecting the basic needs of individuals are viewed no differently under the Constitution from classifications in the area of business regulation, the Court concludes that the classification here has a reasonable basis and is consistent with the Fifth Amendment. To reach today's result, the Court revitalizes Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960),2 and extends the doctrine of Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), to statutory classifications under federal law.3 Thus, the Court today holds that Congress can take social security benefits from a disabled worker as long as it does not behave in an 'arbitrary' way; classifications in the federal social security law are consistent with the Fifth Amendment if they are 'rationally based and free from invidious discrimination.'
24
In opposing this course, I adhere to my dissenting views in Dandridge v. Williams. I continue to believe that the 'rational basis' test used by this Court in reviewing business regulation has no place when the Court reviews legislation providing fundamental services or distributing government funds to provide for basic human needs. In deciding whether a given classification is consistent with the requirements of the Fifth or Fourteenth Amendment,4 we should look to 'the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the asserted state (or federal) interests in support of the classification.' Dandridge v. Williams, supra, at 521, 90 S.Ct., at 1180 (MARSHALL, J., dissenting); cf. Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). Under this approach, it is necessary to consider more than the character of the classification and the governmental interests in support of the classification. Judges should not ignore what everyone knows, namely that legislation regulating business cannot be equated with legislation dealing with destitute, disabled, or elderly individuals. Thus, in assessing the lawfulness of the special disadvantages suffered here by workmen's compensation beneficiaries, the Court should consider the individual interests at stake. Federal disability payments, even when supplemented by other forms of disability compensation, provide families of disabled persons with the basic means for getting by. I would require far more than a mere 'rational basis' to justify a discrimination that deprives disabled persons of such support in their time of need.
25
It is unnecessary to elaborate further the analysis required by the principles of my Dandridge dissent. For even under the Court's 'rational basis' test, the discriminatory offset provision here cannot be sustained. There simply is no reasonable basis for singling out recipients of workmen's compensation for a reduction of federal benefits, while those who receive other kinds of disability compensaion are not similarly treated.
26
This is not to say that an offset scheme is intrinsically impermissible. Arguably, Congress has an interest in paying greater benefits to people who are relying completely on the federal social security program, and lesser benefits to people who have other sources of disability compensation. But the question here is not whether Congress has the power to prevent 'duplicative' payments that might exceed previous take-home pay and might thereby discourage disabled workers from returning to work.5 The issue is whether Congress may single out for the purpose of applying the offset only those who are receiving workmen's compensation, and exclude those who are receiving similar supplemental disability compensation from other sources. A concern about excessive combined benefits and 'rehabilitation' does not explain that distinction.
27
What, then, is the 'rational basis' for the disfavored treatment of persons receiving workmen's compensation? The majority, in its conclusory treatment of this question, appears to say that workmen's compensation 'satisf(ies) a need' which is special; and, claiming to rely on 'the reasoning of Congress as reflected in the legislative history,' the majority finds that Congress 'anticipated that a perpetuation of the duplication in benefits might lead to the erosion of the workmen's compensation programs.' I cannot accept that argument as a justification for this statute. There is nothing in the Senate, House, or Conference Reports indicating that this was the basis for the legislation actually passed.6 And I do not think that the argument is in fact rational. The statutory discrimination exceeds the maximum amount of irrationality and arbitrariness countenanced by the Fifth Amendment.
28
Workmen's compensation programs serve precisely the same function as other forms of disability insurance and tort damage suits. The payments assist workers in the same way, and satisfy the same need. Indeed, in appellee's home State of West Virginia, as in most States, workmen's compensation is by statute the complete functional equivalent of tort liability, since employers who participate in workmen's compensation cannot be sued for tort damages by disabled employees. W.Va.Code Ann. § 23—2—6. Moreover, no distinction can be drawn on the basis of the source of the payments. In West Virginia, as in most States, workmen's compensation is financed privately, just like other forms of insurance and like tort damages. Usually the benefits are paid directly by the employer (as a self-insurer) or by the employer's insurance carriers (in which case the employer pays the premiums). See 3 A. Larson, Law of Workmen's Compensation § 92.10, p. 444 (1971); W.Va.Code Ann. § 23—2—1 et seq. I see no basis for singling out workmen's compensation programs for special protection or solicitude.
29
More pointedly, however, it defies logic to claim that § 224 could to any extent protect or encourage workmen's compensation in the manner suggested by the Court. In support of its claim that § 224 might discourage the erosion of workmen's compensation, the appellant relies heavily on a statement made by a representative of the Council of State Chambers of Commerce to a subcommittee of the Senate Committee on Finance:
30
'A matter of equal concern is the impact of Federal disability payments on State workmen's compensation programs. Legislative proposals have been offered in several States (Colorado, Florida, Maryland, and Minnesota) to reduce workmen's compensation benefits by the amount of (social security) disability benefits payable to a disabled worker. If other States follow this direction * * * we believe it will be only a matter of time until State workmen's compensation programs are destroyed.' Hearings on H.R. 6675 before the Senate Committee on Finance, 89th Cong., 1st Sess., pt. 1, p. 259.
31
In addition, the Government refers to the testimony of another Chamber of Commerce representative:
32
'Encroachment by social security is hampering efforts to improve the State workmen's compensation systems where improvements are needed. Faced with sharply rising costs and the duplication of benefits, employers in several States have supported legislative proposals to reduce workmen's compensation benefits by the amount of social security disability benefits.' Id., at 252.
33
I am unable to see how § 224 is connected to this asserted rationale. The federal offset provision provides for the reduction of federal benefits if the total of those benefits and the workmen's compensation benefits exceeds 80% of 'average current earnings.' However, federal benefits may not be reduced if the workmen's compensation plan provides for a reduction of its benefits in the event of an overlap. § 224(d). Thus, if a State or employers in the State want to save money, the federal statute invites them to reduce workmen's compensation benefits by means of an offset provision of their own. I do not see how it is possible to argue that the federal statute is designed to prevent States from adopting their own offset provisions. If anything, the States are encouraged to cut back on their programs.7
34
Even if it were possible to believe that the challenged federal offset provision might in some way forestall States and employers from creating offset provisions in their workmen's compensation programs, I do not see how state offset provisions could to any degree 'lead to the gradual weakening or atrophy of (those) programs.' Ante, at 84.8 How do offset provisions hurt a program? It is as preposterous to suggest that state offset provisions could lead to the destruction of workmen's compensation as it would be to argue that the current federal offset provision might destroy the federal social security program. Such manufactured and totally illusory concerns cannot be deemed rational.
35
The plain fact is that Congress passed this offset provision because it thought disabled persons should not receive excessive combined disability payments. Perhaps by oversight,9 it arbitrarily singled out workmen's compensation benefits from the universe of disability compensations, and required that workmen's compensation alone was to be offset against federal social security. If the majority's 'rational basis' test in fact is to have any meaning, Congress cannot be permitted to single out recipients of workmen's compensation for this adverse treatment. The burden of reduced federal benefits—so devastating to the families of the once-working poor—cannot be imposed arbitrarily under the Fifth Amendment. In my view, that has happened here. I dissent.10
1
Section 224 provides, in pertinent part:
'(a) If for any month prior to the month in which an individual attains the age of 62—
'(1) such individual is entitled to benefits under section 423 of this title, and
'(2) such individual is entitled for such month, under a workmen's compensation law or plan of the United States or a State, to periodic benefits for a total or partial disability (whether or not permanent), and the Secretary has, in a prior month, received notice of such entitlement for such month,
'the total of his benefits under section 423 of this title for such month and of any benefits under section 402 of this title for such month based on his wages and self-employment income shall be reduced (but not below zero) by the amount by which the sum of—
'(3) such total of benefits under sections 423 and 402 of this title for such month, and
'(4) such periodic benefits payable (and actually paid) for such month to such individual under the workmen's compensation law or plan,
'exceeds the higher of—
'(5) 80 percentum of his 'average current earnings,' . . .
'For purposes of clause (5), an individual's average current earnings means the larger of (A) the average monthly wage used for purposes of computing his benefits under section 423 of this title, or (B) one-sixtieth of the total of his wages and self-employment income (computed without regard to the limitations specified in sections 409(a) and 411(b)(1) of this title) for the five consecutive calendar years after 1950 for which such wages and self-employment income were highest. . . .' 42 U.S.C. § 424a(a).
2
E.g., Gambill v. Finch, 309 F.Supp. 1 (E.D.Tenn.1970); Lofty v. Cohen, 325 F.Supp. 285 (E.D.Mich.1970), aff'd sub nom. Lofty v. Richardson, 440 F.2d 1144 (CA6 1971); Bartley v. Finch, 311 F.Supp. 876 (E.D.Ky.1970); Bailey v. Finch, 312 F.Supp. 918 (N.D.Miss.1970); Benjamin v. Finch, Civ. No. 32816, E.D.Mich., May 26, 1970, aff'd sub nom. Benjamin v. Richardson, No. 20,714, CA6, April 29, 1971; Gooch v. Finch, Civ. No. 6840, S.D.Ohio, July 13, 1970; Rodatz v. Finch, Civ. No. 69—170, E.D.Ill., Sept. 4, 1970, aff'd sub nom. Rodatz v. Richardson (CA7 1971).
3
'Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States * * *, holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party.'
4
The primary federal workmen's compensation programs are the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 U.S.C. § 901 et seq., applicable to employees in the District of Columbia and in maritime-related occupations, and the Federal Employees' Compensation Act, 80 Stat. 532, 5 U.S.C. § 8101 et seq. (1970 ed.), applicable to employees of the Federal Government. The overwhelming majority of workers in the United States are covered by state rather than federal programs, and thus we may refer generally to workmen's compensation as a program of the States.
5
The Senate Committee on Finance, with which the 1965 amendment originated, took note of 'the concern that has been expressed by many witnesses in the hearings about the payment of disability benefits concurrently with benefits payable under State workmen's compensation programs.' S.Rep.No.404, 89th Cong., 1st Sess., pt. 1, p. 100, U.S.Code Cong. & Admin.News 1965, pp. 1943, 2040. Testimony concerning the anticipated effects of duplication upon the future of the state programs appears in Hearings on H.R. 6675 before the Senate Committee on Finance, 89th Cong., 1st Sess., pt. 1, pp. 252, 259, 366, pt. 2, pp. 540, 738—740, 892—897, 949—954, 990.
1
In fiscal 1970, over 2,000,000 veterans received compensation for service-connected disabilities under statutes administered by the Veterans' Administration. Statistical Abstract of the United States 264 (1971) (hereinafter cited as Statistical Abstract). See generally 38 U.S.C. § 301 et seq. Benefits are also provided to certain veterans for non-service-connected disabilities. See generally 38 U.S.C. § 501 et seq. In 1967, total disability benefits from all Veterans' Administration programs amounted to $3,197,906,000. Berkowitz & Johnson, Towards An Economics of Disability: The Magnitude and Structure of Transfer and Medical Costs, 5 J. Human Resources 271, 282 (1970) (hereinafter cited as Economics of Disability). Raymond Belcher indicated on his application for social security disability benefits that he served for three years during World War II. Transcript of Hearings before Appeals Council 37. The record is silent, however, as to his potential eligibility for non-service-connected veteran's benefits.
2
Employees covered by the Civil Service Retirement Act, 5 U.S.C. § 8301 et seq., are entitled to a disability annuity after five years of civilian service. Id., § 8337. In fiscal 1970, there were 184,000 disabled annuitants. Statistical Abstract 284.
3
Title 45 U.S.C. § 228a et seq. provides disability benefits for railroad workers with 10 or more years of covered service. Covered employment under this Act and the Civil Service Retirement Act is excluded from coverage under the Social Security Act. If, however, a worker's employment history separately qualifies him for dual coverage, supplemental payments under neither of these Acts results in an offset of social security disability payments. HEW publication, Social Security Programs in the United States 46, 108 (1968) (hereinafter cited as Programs).
4
Participation in West Virginia's state workmen's compensation fund is optional with the employer. W.Va.Code Ann. §§ 23—2—1, 23—2—8 (1970). An employer who declines to participate, however, must provide equivalent benefits through private insurance or as a self-insurer. Id., at § 23—2—9. Had the Pocahontas Fuel Co. elected to pay premiums to a private carrier rather than to the state fund—a decision over which Mr. Belcher presumably had no control other than that which might be exerted through the collective-bargaining process—the private insurance benefits would not have been offset under § 224. Over 26,000,000 employees are covered by some sort of private insurance program. Programs 115. In 1967, disability benefits from private insurance amounted to 1.3 billion dollars. Economics of Disability 278. This figure alone exceeded the total of all benefits paid by workmen's compensation programs for that year. Ibid.
5
Were Mr. Belcher's employer large enough, it might have determined to become a self-insurer with respect to employee disability claims. Disability payments from self-insurers were required by state law to be at least equivalent to benefits available through the state fund, n. 3, supra, and they would also not be offset under § 224.
In 1969, employers who were covered by private carriers and who were self-insurers paid a combined total of $2,008,000,000 in benefits. State and federal workmen's compensation funds paid only $604,000,000 in benefits. Statistical Abstract 289.
6
1966 Survey of Disabled Adults, Office of Research & Statistics, Social Security Administration, Table 5 (hereinafter cited as Survey). This figure was confirmed during the hearings which led to the adoption of § 224 by Anthony J. Celebrezze, then Secretary of the Department of Health, Education, and Welfare. Hearings on H.R. 6675, before the Senate Committee on Finance, 89th Cong., 1st Sess., pt. 1, p. 152.
7
Survey, Table 5.
8
Ibid.
9
Ibid.
10
Assuming the rationality of rehabilitation as a goal with respect to temporary disabilities, there is still no justification for applying an offset with respect to disabilities concededly permanent in nature. Nevertheless, the statute requires this to be done. The record does not reveal the status of Mr. Belcher's disability.
1
The test for disability under the federal statute is a stern one. With an exception for elderly blind people, disability means 'inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months * * *.' 42 U.S.C. § 423(d)(1)(A).
2
Flemming was a 5—4 decision upholding a federal statute that terminated the oldage benefits of the family of a fully eligible worker, because he was deported as a former member of the Communist Party. The case has not met with unanimous critical acclaim. See Reich, The New Property, 73 Yale L.J. 733, 768—771, 775 (1964). Prematurely, it would appear, some scholars had predicted its demise. E.g., The Supreme Court, 1969 Term, 84 Harv.L.Rev. 1, 103—104 (1970).
3
In Dandridge, the Court held that a State's maximum grant regulation for welfare recipients did not unconstitutionally discriminate between children in large and small families. The regulation was challenged under the Equal Protection Clause of the Fourteenth Amendment.
4
I would use essentially the same approach when statutory classifications are challenged under either Amendment. Cf. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).
5
The offset idea has had a rocky history. As the majority notes, a prior offset provision was repealed in 1958 because Congress believed that 'the danger that duplication of disability benefits might produce undesirable results (was) not of sufficient importance to justify reduction of the social security disability benefits.' H.R.Rep.No.2288, 85th Cong., 2d Sess., 13. The present offset provision was restored to the Act in 1965. It was estimated at the time that no more than 2% of the federal social security disability beneficiaries also received workmen's compensation. Hearings on H.R. 6675 before the Senate Committee on Finance, 89th Cong., 1st Sess., pt. 1, p. 152.
It is perhaps plausible to reason that duplicative benefits might in some circumstances discourage rehabilitation and a return to work. It is worth noting, however, that even without the offset provision, appellee's combined benefits would not have exceeded his earnings before disability. See supra, at 88, supra.
6
The sole concern expressed in these documents is that Congress should prevent 'excessive combined benefits.' S.Rep.No. 404, 89th Cong., 1st Sess., pt. 1, p. 100, U.S.Code Cong., Admin.News 1965, p. 1943; see also H.R.Conf.Rep.No.682, 89th Cong., 1st Sess.; H.R.Rep.No.213, 89th Cong., 1st Sess.
7
Indeed, where they are free to do so, see 3 A. Larson, Law of Workmen's Compensation 522, Appendix A, Table 7 (1971); W.Va.Code Ann. §§ 23—2—1, 23—2—8, individual workers are encouraged to opt out of workmen's compensation and purchase private disability insurance.
8
It is worth noting that payments for total and permanent disability are only a small part of the total scheme of compensation of any workmen's compensation act. Benefits are also provided for medical and hospital expenses, funeral expenses, rehabilitation, specific scheduled losses, temporary disability, and other forms of loss, see, e.g., W.Va.Code Ann. §§ 23—4—3, 23—4 4, 23—4—6, all of which are unaffected by social security.
9
Secretary of HEW Celebrezze opposed the present offset provision, arguing that any change should await a more thorough study of the overlap problem. Hearings on H.R. 6675 before the Senate Committee on Finance, 89th Cong., 1st Sess., pt. 1, p. 146. The Committee chose not to wait.
10
Since, in my view, the present discriminatory offset provision cannot stand, there is no need to decide finally whether Congress has the power to pass an offset provision that would qualify an already accrued interest in social security benefits. Whatever might be said about the characterization of welfare assistance as 'property,' see Goldberg v. Kelly, 397 U.S. 254, 262 n. 8, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970), surely a worker who is forced to pay a social security tax on his earnings has a clearly cognizable contract interest in the benefits that justify the tax. The characterization of this interest as 'noncontractual' in Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1372, 4 L.Ed.2d 1435 (1960), is, in my view, incorrect. The analogy to an annuity or insurance contract, rejected there, seems apt. Id., at 624, 80 S.Ct., at 1379 (Black, J., dissenting). See also Reich, The New Property, supra. Of course, as the Court says, Congress may 'fix the levels of benefits under the Act or the conditions upon which they may be paid.' But once Congress has fixed that level and those conditions, and a worker has contributed his tax in accord with the law, may Congress unilaterally modify the benefits in a way that defeats the expectations of beneficiaries and prospective beneficiaries? At the least, it would seem that after a worker has contributed the tax for 20 quarters, 42 U.S.C. § 423(c)(1), and his interest in the benefits has fully accrued, Congress may not unilaterally qualify that interest by introducing an offset provision not previously contemplated by the parties.
| 12
|
404 U.S. 116
92 S.Ct. 360
30 L.Ed.2d 312
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.PLASTERERS' LOCAL UNION NO. 79, OPERATIVE PLASTERERS' & CEMENT MASONS' INTERNATIONAL ASS'N, AFL-CIO, et al. TEXAS STATE TILE & TERRAZZO CO., Inc., et al., Petitioners, v. PLASTERERS' LOCAL UNION NO. 79, OPERATIVE PLASTERERS' & CEMENT MASONS' INTERNATIONAL ASS'N, AFL-CIO, et al.
Nos. 70—63, 70—65.
Argued Oct. 13, 1971.
Decided Dec. 6, 1971.
Syllabus
Two unions, the Plasterers and the Tile Setters, in accordance with procedures binding them to arbitrate, submitted to a board their jurisdictional dispute over work to be done for a contractor. The board awarded the work to the Plasterers. When the contractor and the Tile Setters refused to abide by the arbitration board's decision, the Plasterers, to force reassignment of the work, picketed that contractor as well as another contractor employing members of the Tile Setters. Neither contractor was subject to the arbitration agreement. Charges were thereupon filed against the Plasterers for allegedly violating § 8(b)(4)(D) of the National Labor Relations Act, and a hearing to resolve the dispute was held under § 10(k), which directs the National Labor Relations Board (NLRB) to 'hear and determine the dispute out of which (the alleged) unfair labor practice (has) arisen' unless 'the parties to such dispute' agree upon a settlement. The NLRB, after weighing the arbitration board's decision 'and all (other) relevant factors,' awarded the work to the Tile Setters. When the Plasterers refused to abide by the award, a § 8(b)(4) (D) complaint was filed against them and they were found to have violated that provision. Both contractors, which had collective-bargaining agreements with the Tile Setters (but not with the Plasterers) and had been employing members of that union to perform the operation involved in the jurisdictional dispute, contended that it was far more efficient for them to use tile setters than plasterers. The Court of Appeals on review set aside the NLRB's order, holding that it is not the employer but the rival unions that are parties to the jurisdictional dispute to which § 10(k) applies. Held: The employers here, both of which had substantial financial stakes in the outcome of the § 10(k) proceeding, were 'parties to the dispute' within the meaning of that provision and the NLRB was empowered to determine the jurisdictional dispute under that provision in this case where the competing unions, but not the employers, had agreed upon a voluntary method of adjustment. Highway Truckdrivers, Local 107 (Safeway Stores, Inc.), 134 N.L.R.B. 1320, distinguished. Pp. 123—137.
142 U.S.App.D.C. 146, 440 F.2d 174, reversed.
Norton J. Come, Washington, D.C., for National Labor Relations Bd.
Wayne S. Bishop, Washington, D.C., for Texas State Tile & Terrazzo Co., Inc. and others.
Donald J. Capuano, Washington, D.C., for respondents.
Laurence Gold, Washington, D.C., for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae.
Mr. Justice WHITE delivered the opinion of the Court.
1
When a charge is filed under § 8(b)(4)(D) of the National Labor Relations Act, as amended, the provision1 banning so-called jurisdictional disputes, the Board must under § 10(k) 'hear and determine the dispute out of which (the) unfair labor practice shall have arisen, unless * * * the parties to such dispute' adjust or agree upon a method for the voluntary adjustment of the dispute.2 The issue here is whether an employer, picketed to force reassignment of work, is a 'party' to the 'dispute' for purposes of § 10(k). When the two unions involved, but not the employer, have agreed upon a method of settlement, must the Board dismiss the § 10(k) proceedings or must it proceed to determine the dispute with the employer being afforded a chance to participate?
2
* Texas State Tile & Terrazzo Co. (Texas State) and Martini Tile & Terrazzo Co. (Martini) are contractors in Houston, Texas, engaged in the business of installing tile and terrazzo. Both have collective-bargaining agreements with the Tile, Terrazzo and Marble Setters Local Union No. 20 (Tile Setters) and have characteristically used members of the Tile Setters union for laying tile and also for work described in the collective-bargaining contract as applying 'a coat or coats of mortar, prepared to proper tolerance to receive tile on floors, walls and ceiling regardless of whether the mortar coat is wet or dry at the time the tile is applied to it.'3
3
This case arose when Plasterers' Local Union No. 79, Operative Plasterers' and Cement Masons' International Association of Houston, Texas (Plasterers), picketed the job sites of Texas State and Martini claiming that the work of applying the mortar to receive tile was the work of the Plasterers' union and not of the Tile Setters.4 Neither Texas State nor Martini had a collective-bargaining contract with the Plasterers or regularly employed workers represented by that union.
4
Before the Texas State picketing began, the Plasterers submitted their claim to the disputed work to the National Joint Board for Settlement of Jurisdictional Disputes (Joint Board), a body established by the Building Trades Department, AFL-CIO, and by certain employer groups.5 Both the Plasterers' and the Tile Setters' locals were bound by Joint Board decisions because their international unions were members of the AFL-CIO's Building Trades Department. Neither Texas State nor Martini had agreed to be bound by Joint Board procedures and decisions, however. The Joint Board found the work in dispute to be covered by an agreement of August 1917, between the two international unions, and awarded the work to the Plasterers.6 When Texas State and the Tile Setters refused to acquiesce in the Joint Board decision and change the work assignment, the Plasterers began the picketing of Texas State which formed the basis for the § 8(b)(4)(D) charges. The Plasterers also picketed a jobsite where Martini employees, members of the Tile Setters, were installing tile, although this dispute had not been submitted to the Joint Board.
5
Martini and Southwestern Construction Co., the general contractor that had hired Texas State, filed § 8(b)(4)(D) unfair labor practice charges against the Plasterers, and the NLRB's Regional Director noticed a consolidated § 10(k) hearing to determine the dispute.7 Southwestern, Texas State, Martini, and the two unions participated in the hearing. A panel of the Board noted that the Tile Setters admitted being bound by Joint Board procedures, but deemed the Joint Board decision to lack controlling weight,8 and 'after taking into account and balancing all relevant factors' awarded the work to the Tile Setters.9 When the Plasterers refused to indicate that they would abide by the Board's award, a § 8(b)(4)(D) complaint was issued against them, and they were found to have committed an unfair labor practice by picketing to force Texas State and Martini to assign the disputed work to them.10 In making both the § 10(k) and § 8(b)(4)(D) decisions, the Board rejected the Plasterers' contention that even though the employer had not agreed to be bound by the Joint Board decision, the provisions of § 10(k) precluded a subsequent Board decision because the competing unions had agreed upon a voluntary method of adjustment.
6
On petition to review by the Plasterers and cross petition t enforce by the Board, a divided panel of the Court of Appeals set aside the order of the Board.11 It held that: 'It is not the employer but the rival unions (or other employee groups) who are the parties to the jurisdictional dispute contesting which employees are entitled to seek the work in question.'12 It concluded that the Board may not make a § 10(k) determination of a jurisdictional dispute where the opposing unions have agreed to settle their differences through binding arbitration. Both the Board and the employers petitioned for certiorari, and we granted the petitions.13
II
7
Section 8(b)(4)(D) makes it an unfair labor practice for a labor organization to strike or threaten or coerce an employer or other person in order to force or require an employer to assign particular work to one group of employees rather than to another, unless the employer is refusing to honor a representation order of the Board. On its face, the section would appear to cover any union challenge to an employer work assignment where the prohibited means are employed. National Labor Relations Board v. Radio & Television Broadcast Engineers Union, Local 1212, 364 U.S. 573, 576, 81 S.Ct. 330, 332, 5 L.Ed.2d 302 (1961) (hereinafter CBS). As the charging or intervening party, the employer would normally be a party to any proceedings under that section.14 Section 8(b)(4)(D), however, must be read in light of § 10(k) with which it is interlocked. CBS, supra, at 576, 81 S.Ct., at 332. When a § 8(b)(4)(D) charge is filed and there is reasonable cause to believe that an unfair labor practice has been committed, issuance of the complaint is withheld until the provisions of § 10(k) have been satisfied. That section directs the Board to 'hear and determine' the dispute out of which the alleged unfair labor practice arose; the Board is required to decide which union or group of employees is entitled to the disputed work in accordance with acceptable, Board-developed standards, unless the parties to the underlying dispute settle the case or agree upon a method for settlement. Whether the § 8(b)(4)(D) charge will be sustained or dismissed is thus dependent on the outcome of the § 10(k) proceeding. The Board allows an employer to fully participate in a § 10(k) proceeding as a party. If the employer prefers the employees to whom he has assigned the work, his right to later relief against the other union's picketing is conditioned upon his ability of convince the Board in the § 10(k) proceeding that his original assignment is valid under the criteria employed by the Board.
8
The alleged unfair labor practice in this cause was the picketing of the jobsites by the Plasterers, and the dispute giving rise to this picketing was the disagreement over whether Plasterers or Tile Setters were to lay the final plaster coat. This dispute was a three-cornered one. The Plasterers made demands on both Texas State and the Tile Setters and on both Martini and the Tile Setters. In both cases, the employers' refusal to accede to the Plasterers' demands inevitably and inextricably involved them with the Tile Setters against the Plasterers. It was this triangular dispute that the § 10(k) proceeding was intended to resolve.
9
It may be that in some cases employers have no stake in how a jurisdictional dispute is settled and are interested only in prompt settlement. Other employers, as shown by this cause, are not neutral and have substantial economic interests in the outcome of the § 10(k) proceeding. A change in work assignment may result in different terms or conditions of employment, a new union to bargain with, higher wages or costs, and lower efficiency or quality of work. In the construction industry, in particular, where employers frequently calculate bids on very narrow margins, small cost differences are likely to be extremely important.15 In the present cause, both employers had collective-bargaining contracts with the Tile Setters specifically covering the work at issue; neither had contracts with the Plasterers nor employed Plasterers regularly. Both employers determined it to be in their best interests to participate vigorously in the Board's § 10(k) proceeding. The employers contended it was more efficient and less costly to use the same craft for applying the last coat of plaster, putting on the bonding coat, and laying the tile and that it was more consistent with industry practice to use the Tile Setters as they did.16 Both companies claimed that their costs would be substantially increased if the award went to the Plasterers, and that without collective-bargaining contracts with the Plasterers, they would lose 30%—40% of their work to plastering contractors.17 It is obvious, therefore, that both Texas State and Martini had substantial stakes in the outcome of the § 10(k) proceeding.
10
The phrase 'parties to the dispute' giving rise to the picketing must be given its commonsense meaning corresponding to the actual interests involved here. Cf. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL—CIO, Local 283 v. Scofield, 382 U.S. 205, 220, 86 S.Ct. 373, 382, 15 L.Ed.2d 272 (1965). Section 10(k) does not expressly or impliedly deny party status to an employer, and since the section's adoption in 1947, the Board has regularly accorded party status to the employer and has refused to dismiss the proceeding when the unions, but not the employer, have agreed to settle.18
11
The Court of Appeals rejected this construction of § 10(k). Its reasoning, which we find unpersuasive, was that because the employer is not bound by the § 10(k) decision, he should have no right to insist upon participation. But the § 10(k) decision standing alone, binds no one. No cease-and-desist order against either union or employer results from such a proceeding; the impact of the § 10(k) decision is felt in the § 8(b)(4)(D) hearing because for all practical purposes the Board's award determines who will prevail in the unfair labor practice proceedings. If the picketing union persists in its conduct despite a § 10(k) decision against it, a § 8(b)(4)(D) complaint issues and the union will likely be found guilty of an unfair labor practice and be ordered to cease and desist. On the other hand, if that union wins the § 10(k) decision and the employer does not comply, the employer's § 8(b)(4)(D) case evaporates and the charges he filed against the picketing union will be dismissed.19 Neither the employer nor the employees to whom he has assigned the work are legally bound to observe the § 10(k) decision, but both will lose their § 8(b) (4)(D) protection against the picketing which may, as it did here, shut down the job. The employer will be under intense pressure, practically, to conform to the Board's decision. This is the design of the Act; Congress provided no other way to implement the Board's § 10(k) decision.
12
We do not find that the legislative history of § 8(b)(4)(D) and § 10(k) requires a different conclusion. The Court of Appeals and the Plasterers rely upon various statements in the legislative history of the two sections, particularly the remarks of Senator Morse, referring to jurisdictional disputes as controversies between two labor unions,20 and a passage in the House Conference Report referring to § 10(k) as directing the Board to 'hear and determine disputes between unions giving rise to unfair labor practices under § 8(b)(4)(D).'21 Nothing in these remarks or in the other relevant legislative documents indicates an affirmative intent to exclude an interested employer from participating in § 10(k) proceeding. The usual focus of the legislative debates was on ways of protecting the employer from the economic havoc of jurisdictional strikes.22 But it does not follow from statements condemning the economically deleterious effects of inter-union strife that Congress intended an employer to have no say in a decision that may, practically, affect his business in a radical way. Congress did not expressly focus on the non-neutral employer, but there is nothing in the legislative history that negatives employer standing;23 and in referring to the 'parties to the dispute,' Congress used terminology that would ordinarily include the employer in cases such as these.24
13
The Court has frequently cautioned that '(i)t is at best treacherous to find in Congressional silence alone the adoption of a controlling rule of law.' Girouard v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 90 L.Ed. 1084 (1946); Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 241, 90 S.Ct. 1583, 1587, 26 L.Ed.2d 199 (1970). It is clear that Congress intended to protect employers and the public from the detrimental economic impact of 'indefensible'25 jurisdictional strikes. It would therefore be myopic to transform a procedure that was meant to protect employer interests into a device that could injure them. In the absence of an 'unmistakable directive,' the Court has refused to construe legislation aimed to protect a certain class in a fashion that will run counter to the goals Congress clearly intended to effectuate. FTC v. Fred Meyer Inc., 390 U.S. 341, 349, 88 S.Ct. 904, 908, 19 L.Ed.2d 1222 (1968). We conclude, therefore, that these sections were enacted to protect employers who are partisan in a jurisdictional dispute as well as those who are neutral.
14
Nothing in CBS, supra, mandates a different conclusion. Until that case, the Board's practice had been to decide against the striking or picketing union unless it was entitled to the work pursuant to a Board certification or a collective-bargaining contract. The Court found the Board to have taken too narrow a view of its task and held that the Board, employing broader, more inclusive criteria with respect to entitlement, must make an affirmative award to one union or the other. In the course of its opinion, the Court referred to § 10(k)'s phrase 'the dispute out of which such unfair labor practice shall have arisen' as having 'no other meaning except a jurisdictional dispute under § 8(b)(4)(D) which is a dispute between two or more groups of employees over which is entitled to do certain work for an employer.' 364 U.S., at 579, 81 S.Ct., at 334. Again, we have no quarrel with the view that § 10(k) is designed to decide which union is entitled to the work. But the issue before us is whether the employer is also a party to that dispute and to the proceeding that decides that question. The Court in CBS did not have before it a case in which the employer was particularly interested in which union did the work, since it had collective-bargaining contracts with both unions and since both unions were able to do the disputed work with equal skill, expense, and efficiency. The Court recognized that there, 'as in most instances' the quarrel was of 'so little interest to the employer that he seems perfectly willing to assign work to either (union) if the other will just let him alone.' Ibid. (emphasis added.) We have no doubt, therefore, that the Court had no intention of deciding the case now before us.
15
If employers must be considered parties to the dispute that the Board must decide under § 10(k), absent private agreement, they must also be deemed parties to the adjustment or agreement to settle that will abort the § 10(k) proceedings. It is insisted that so holding will encourage employers to avoid private arbitration, whereas holding union agreement alone sufficient to foreclose Board action will pressure employers to become part of private settlement mechanisms productive of sound result and much swifter decision.
16
The difficulties with this argument are several. First of all, if union agreements to arbitrate are sufficient to terminate § 10(k) proceedings, there is no assurance that these private procedures will always be open to employer participation, that an employer will be afforded a meaningful chance to participate, or that all relevant factors will be properly considered.26
17
Second, the argument for regarding the employer as a dispensable neutral is reminiscent of the position taken by the Board and rejected by the Court in the CBS case. There, the Board sought to justify a narrow view of its function and its failure to make affirmative awards as generating pressure to settle or arbitrate privately. As § 10(k) passed the Senate, it directed the Board to decide the dispute or to order arbitration, but the arbitration alternative was deleted in Conference, and the amended bill was passed by the Senate over the strenuous objections of Senator Morse and others.27 By this amendment, the Court in CBS held that Congress had expressed a clear preference for Board decision as compared with compelled arbitration, and that this policy preference must be respected. 364 U.S., at 581—582, 81 S.Ct., at 335—336, 5 L.Ed.2d 302. Although this Court has frequently approved an expansive role for private arbitration in the settlement of labor disputes, this enforcement of arbitration agreements and settlements has been predicated on the view that the parties have voluntarily bound themselves to such a mechanism at the bargaining table. In both Carey v. Westinghouse Electric Corp., 375 U.S. 261, 261, 84 S.Ct. 401, 404, 11 L.Ed.2d 320 (1964) and Boys Markets, Inc. v. Retail Clerk's Union, Local 770, 398 U.S., at 238, 90 S.Ct., at 1585, the employers had acceded to binding arbitration as the terminal step of the grievance procedure. This concession is not present in the instant case; the employers here did not even have a collective-bargaining contract with the Plasterers. Section 10(k) contemplates only a voluntary agreement as a bar to a Board decision. As in CBS, we decline to narrow the Board's powers under § 10(k) so that employers are coerced to accept compulsory private arbitration when Congress has declined to adopt such a policy.
18
There remains the matter of the so-called Safeway rule announced by the Board in 196228 and followed since.29 Under this rule, the Board has held that if one of the unions claiming work effectively renounces its claim, § 10(k) proceedings are aborted despite legitimate interests an employer may have in securing a Board decision. It is urged that if union agreement prevents a § 10(k) decision in such a situation, the employer cannot be considered a party to the § 10(k) dispute when the unions but not the employer have agreed upon a method of settlement. As we understand the Safeway doctrine, however, when one union disclaims the work, § 10(k) proceedings terminate, not because all 'parties' to the dispute have settled or agreed to settle within the meaning of the statute, but on the ground that, in the words of the Board's brief in this case, 'the Board has power, under Section 10(k) only to hear and determine the merits of a jurisdictional dispute and * * * by definition, such a dispute cannot exist unless there are rival claims to the work * * *.'30 Concededly, an employer may be a third party to disputes over work assignments, but when the other two parties settle their differenced and one union declines the work assigned to it, the inter-union conflict that §§ 8(b)(4)(D) and 10(k) were designed to eliminate disappears. A § 10(k) hearing is a comparative proceeding aimed at determining which union is entitled to perform certain tasks. Its function evaporates when one of the unions renounces and refuses the work. Similarly, the applicability of § 8(b)(4)(D) is premised on conflicting claims of unions or groups of employees for the same job; absent such an actual conflict it would be futile to proceed under that section unless the employer replaces the disclaiming employees by a new third group of employees when they reject the work assignment, and the disfavored union resumes picketing.
19
If union settlement followed by disclaimer ends the § 10(k) case, some of the argument about the employer's party status becomes academic; for whether the employer is a party or not, the two unions alone can prevent a Board decision. But recognizing the employer's party status insures his right to participate when the unions do not agree and the Board must come to a decision. Further, the Board's Safeway rule applies only where the inter-union conflict is effectively settled and the employer no longer faces conflicting claims to the work. As this case demonstrates, the Board does not apply the Safeway rule to unimplemented agreements to arbitrate between the unions alone, and it does not consider it applicable where employees continue on the job after their international union loses an arbitration proceeding and renounces the work.31 These de facto disputes are real, and they deserve Board resolution if the purposes of § 10(k) are to be achieved. Cf. CBS, supra, 364 U.S., at 579—580, 81 S.Ct., at 334—335.
20
The Court of Appeals would extend the Safeway rule to foreclose Board decision where the two unions, but not the employer, have agreed to arbitrate; inter- union agreement was deemed equivalent to effective disclaimer by one of the unions. This view ignores the narrow view the Board has taken of the Safeway rule. It also fails to recognize the problem arising where a local union or group of employees continues to do work assigned by the employer despite agreement or disclaimer by their parent body. It makes little difference to the picketing union that there has been a 'settlement' or an agreed-upon method of deciding the dispute as long as it is barred from enjoying the results of such a theoretical resolution. In the instant case, the Board held a § 10(k) hearing for the simple reason that a live unresolved jurisdictional dispute between unions and employer in fact existed.
21
Our conclusion evinces no hostility to voluntary settlement of disputes and is wholly consistent with federal policy with respect to voluntary arbitration. In other contexts, where challenged conduct poses an arbitrable dispute under a collective-bargaining contract but is also an unfair labor practice within the jurisdiction of the Board, the Board will, as a matter of policy, defer to the arbitral settlement, although it is not bound to do so by the LMRA. See 29 U.S.C. § 160(a); Carey v. Westinghouse Electric Corp., 375 U.S., at 272, 84 S.Ct., at 409; National Labor Relations Board v. Strong, 393 U.S. 357, 360—361, 89 S.Ct. 541, 544—545, 21 L.Ed.2d 546 (1969); National Labor Relations Board v. Acme Industrial Co., 385 U.S. 432, 438, 87 S.Ct. 565, 569, 17 L.Ed.2d 495 (1967). Although the Board is not statutorily required to honor arbitration awards in such situations, it often defers to them if the arbitrator has considered the alleged unfair labor practice. Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955); International Harvester Co., 138 N.L.R.B. 923 (1962), enforced sub nom. Ramsey v. National Labor Relations Board, 327 F.2d 784 (CA7 1964). But again, such deference is in the context of voluntary arbitration. In the case before us, the LMRA requires that the Board defer only when all of the parties have agreed on a method of settlement; when there has been such an agreement, the Board cannot ignore or override the result of that settlement procedure. In the present cause, however, it is claimed the Board must defer when less than all the parties to the dispute have agreed to arbitrate.
22
Reversed.
1
61 Stat. 136, 29 U.S.C. § 141 et seq.
2
Section 8(b)(4) provides that it shall be an unfair labor practice for a labor organization or its agents '(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise, handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
'(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work.' 29 U.S.C. § 158(b)(4).
Section 10(k) provides:
'Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(D) of section 158(b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of, the dispute, such charge shall be dismissed.' 29 U.S.C. § 160(k).
3
App. 20.
4
This dispute grew out of a new method of applying tile that was developed in the mid-1950's. R. 111, 123, 135.
5
The National Joint Board for the Settlement of Jurisdictional Disputes is an arbitration panel established by a 1948 agreement between the Building and Construction Trades Department, AFL—CIO, and the Associated General Contractors of America and several specialty contractors' associations. The Joint Board consists of an equal number of representatives of employers and unions and a neutral chairman. An employer may become a party to a Joint Board proceeding by signing a stipulation agreeing to be bound by the results of the proceeding. Art. III, § 7, AFL—CIO, Bldg. & Constr. Trades Dept., Plan for Settling Jurisdictional Disputes Nationally and Locally 10 (1970). Member unions of the AFL—CIO's Building Trades Department do not have to agree formally to abide by Joint Board decisions, because they are bound by virtue of provisions contained in their constitutions. AFL—CIO, Bldg. & Constr. Trades Dept., Procedural Rules and Regulations of the National Joint Board 2 (1970). See generally K. Strand, Jurisdictional Disputes in Construction: The Causes, the Joint Board, and the NLRB 89—104 (1961). In the cases here, both the Tile Setters and the Plasterers were members of the Building Trades Department.
6
In the Texas State case, the Joint Board on November 9, 1966, awarded all of the disputed work to the Plasterers except 'any coat to be applied wet the same day under tile.' App. 316. The Tile Setters refused to give up the work of laying the plaster undercoat to which the dry mortar was applied, claiming that the Joint Board decision gave this work to them. The Plasterers established a picket line on January 24, 1967; on March 15, 1967, the Joint Board issued a clarification of its decision, stating that the final smooth plaster coat was to be done by the Plasterers unless it was laid the same day as the tile and dry-set mortar were applied, in which case it was to be done by the Tile Setters. App. 341.
7
The employer-subcontractor, Texas State, intervened as a party.
8
App. 22.
9
The NLRB considered the collective-bargaining agreements among the parties, industry and area practice, relative skills and efficiency of operation, past practices of the employers, agreements a between the Plasterers and the Tile Setters, the Joint Board award (the NLRB refused to give this controlling weight because of its 'ambiguous nature,' App. 22), and concluded:
'Tile setters are at least as skilled in the performance of the work as plasterers, and both Texas Tile and Martini, which assigned them to the work, have been satisfied with both the quality of their work and the cost of employing them. Moreover, the instant assignments of the disputed work to tile setters are consistent with the explicit provisions of the collective-bargaining agreement between the Tile Setters and Texas Tile and Martini, are consistent wit the past practice of the Employers, and are not inconsistent with area or industry practice * * *.' App. 23. The Board's decision in the § 10(k) proceeding is reported at 167 N.L.R.B. 185 (1967) and its decision and order in the unfair labor practice proceeding are reported at 172 N.L.R.B. Nos. 70, 72 (1968).
10
The § 10(k) determination is not binding as such even on the striking union. If that union continues to picket despite an adverse § 10(k) decision, the Board must prove the union guilty of a § 8(b)(4)(D) violation before a cease-and-desist order can issue. The findings and conclusions in a § 10(k) proceeding are not res judicata on the unfair labor practice issue in the later § 8(b)(4)(D), determination. International Typographical Union, 125 N.L.R.B. 759, 761 (1959). Both parties may put in new evidence at the § 8(b)(4)(D) stage, although often, as in the present cases, the parties agree to stipulate the record of the § 10(k) hearing as a basis for the Board's determination of the unfair labor practice. Finally, to exercise its powers under § 10(k), the Board need only find that there is reasonable cause to believe that a § 8(b)(4) (D) violation has occurred, while in the § 8(b)(4)(D) proceeding itself the Board must find by a preponderance of the evidence that the picketing union has violated § 8(b)(4)(D). International Typographical Union, supra, at 761 n. 5 (1959).
11
142 U.S.App.D.C. 146, 440 F.2d 174 (1970).
12
Id., at 152, 440 F.2d, at 180. Although the dispute at the Martini worksite had not been submitted to the Joint Board, the Court of Appeals nevertheless held that, because the two unions had agreed to be bound by the procedures and decisions of the Joint Board, the NLRB was precluded from hearing and determining the Martini dispute under § 10(k).
13
401 U.S. 973, 91 S.Ct. 1195, 28 L.Ed.2d 322 (1971).
14
See 29 C.F.R. §§ 102.8, 102.9, 102.109 (1971); International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL—CIO, Local 283 v. Scofield, 382 U.S. 205, 219—221, 86 S.Ct. 373, 382—383, 15 L.Ed.2d 272 (1965).
15
See Comment, The Employer as a Necessary Party to Voluntary Settlement of Work Assignment Disputes Under Section 10(k) of the NLRA, 38 U.Chi.L.Rev. 389, 400 (1971).
16
R. 96—97, 130—132, 141.
17
R. 95, 129, 145—148.
18
See, e.g., Lodge 68 of the Int'l Assn. of Machinists (Moore Drydock Co.), 81 N.L.R.B. 1108, 1113—1114, 1126—1128 (1949); Local 231, Int'l Hod Carriers (Middle States Telephone Co.), 91 N.L.R.B. 598, 604 (1950); United Brotherhood of Carpenters, Local 581 (Ora Collard), 98 N.L.R.B. 346, 348—349 (1952); United Assn. of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, 108 N.L.R.B. 186, 197 (1954); Bay Counties District Council of Carpenters, 115 N.L.R.B. 1757, 1766—1767 (1956); Local 173, Wood, Wire, & Metal Lathers' Int'l Union (Newark & Essex Plastering Co.), 121 N.L.R.B. 1094, 1103—1104 (1958); Int'l Union of Operating Engineers (Schwerman Co. of Pa., Inc.), 139 N.L.R.B. 1426, 1429 (1962); Carpenters District Council of Denver (J. O. Veteto & Son), 146 N.L.R.B. 1242, 1245 (1964); Electrical Workers, Local 26 (McCloskey & Co.), 147 N.L.R.B. 1498, 1501—1503 (1964); Operative Plasterers Int'l Assn. (Twin City Tile & Marble Co.), 152 N.L.R.B. 1609, 1611, 1615 (1965); Int'l Union of Operating Engineers, Local 49 (Egan-McKay Electrical Contractors, Inc.), 164 N.L.R.B. 672, 673 (1967). The Board has reasserted this view since the Court of Appeals' decision in the instant case, Lathers Local 104 (Blaine Petty Co.), 186 N.L.R.B. No. 70 (1970). Until now, courts of appeals have uniformly upheld the Board's position; see, e.g., New Orleans Typographical Union No. 17 v. National Labor Relations Board, 368 F.2d 755, 763 (CA 5 1966); National Labor Relations Board v. Local 825, Int'l Union of Operating Engineers, 326 F.2d 213, 216 (CA 3 1964); Local 450, Int'l Union of Operating Engineers A.F.L.-C.I.O. v. Elliott, 256 F.2d 630, 636 (CA 5 1958). See also Carey v. Westinghouse Electric Corp., 375 U.S. 261, 264, 84 S.Ct. 401, 405, 11 L.Ed.2d 320 (1964), citing Wood, Wire & Metal Lathers Int'l Union (Acoustical Contractors Assn.), 119 N.L.R.B. 1345, 1347 (1958).
19
This dismissal will not be pursuant to the language of § 10(k) directing dismissal upon 'compliance by the parties * * * with the (Board's) decision' but, rather, under § 8(b)(4)(D) because the 'employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work.' Apparently, the Board construes this language to include disregarding a § 10(k) decision. Brief for the NLRB 23 n. 16, 28 n. 21. The Board's regulations now provide that 'if the Board determining is that employees represented by a charged union are entitled to perform the work in dispute, the regional director shall dismiss the charge as to that union irrespective of whether the employer has complied with that determination.' 36 Fed.Reg. 9133 (1971).
20
93 Cong.Rec. 1845, Cf. also 93 Cong.Rec. 1824 (remarks of Sen. Morse).
21
H.R.Conf.Rep. No. 510 on H.R. 3020, 80th Cong., 1st Sess., 57 (1947).
22
See, e.g., 93 Cong.Rec. A1222—A1223 (remarks of Cong. Landis); 93 Cong.Rec. 3424 (remarks of Cong. Hartley); 93 Cong.Rec. 3227—3228 (remarks of Sen. Lucas); 93 Cong.Rec. 4860 4862 (remarks of Sen. Aiken); 93 Cong.Rec. A2251—A2253 (remarks of Sen. Ball). Section 10(k) protection was also extended to unorganized employees. In the Senate bill, § 8(b)(4)(D) covered only cases where two unions claimed the same work, but the section was broadened in the Conference Committee to cover conflicts between organized and unorganized employees. See CBS, 364 U.S., at 584, 81 S.Ct., at 337, 5 L.Ed.2d 302.
23
In what is apparently the only time employer participation in the resolution of jurisdictional disputes was explicitly considered, Senator Taft indicated that the employer should be a party to the proceeding:
'Mr. Morreale (General Counsel, International Hodcarriers, Building, and Common Laborers of America) * * * I do not think (compulsory arbitration between the antagonistic unions) should be just by labor itself, but that it should be in combination with industry, because in all those matters, the employers are affected and interested, as well as is labor. I think that the procedure set up should provide for a joint procedure between management and labor.
'The Chairman (Sen, Taft) * * * I have no objection to giving both to labor and management the right to arbitrate or address themselves to arbitrating the question.'
Hearings on S. 55 before the Senate Committee on Labor and Public Welfare 80th Cong., 1st Sess., pt. 3, p. 1467 (1947).
The arbitration provision in the Senate version of § 10(k) was deleted without explanation in Conference. See n. 27, infra.
24
In construing a statute, the Court has ruled that legislative materials, if 'without probative value, or contradictory, or ambiguous,' should not be permitted to control the customary meaning of words. United States v. Dickerson, 310 U.S. 554, 562, 60 S.Ct. 1034, 1038, 84 L.Ed. 1356 (1940). See also Gemsco, Inc. v. Walling, 324 U.S. 244, 260, 65 S.Ct. 605, 614, 89 L.Ed. 921 (1945).
The Court has previously had occasion to construe the term 'party' in the National Labor Relations Act, and it has given it a broad and realistic definition. In Lewis v. National Labor Relations Board, 357 U.S. 10, 78 S.Ct. 1029, 2 L.Ed.2d 1103 (1958), the issue was whether the Board's General Counsel was a 'party' who could apply to the Board for the issuance of a subpoena. The General Counsel had obtained subpoenas duces tecum and ad testificandum to both an employer and a union after an unfair labor practice complaint had been issued; at the hearing on the complaint, the employer and union had moved to revoke the subpoenas on the ground that the General Counsel was not a 'party' for purposes of § 11(1) of the Act which provides that: 'The Board, or any member thereof, shall upon application of any party * * * forthwith issue * * * subpoenas. * * *'
The Court noted that the Act does not define the term 'party,' but it emphasized that the role of the General Counsel was a 'major one' in unfair labor practice proceedings. 357 U.S., at 15, 78 S.Ct., at 1032. The General Counsel was held to be a party because he was 'indispensable to the prosecution of the case' and because relegating him to a lesser status would 'overlook the critical role he performs in enforcement of the Act.' 357 U.S., at 16, 78 S.Ct., at 1033. This description is equally applicable to an employer's function in a § 8(b)(4)(D) proceeding. In International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO, Local 283 v. Scofield, 382 U.S. 205, 86 S.Ct. 373, 15 L.Ed.2d 272 (1965), the Court went through a somewhat similar analysis of the substantive interests involved at the judicial enforcement stage of an unfair labor practice proceeding, and concluded that a successful 'charged' or 'charging' party before the Board had a right to intervene in the ensuing Court of Appeals action.
Excluding the employer from participation as a party is inconsistent with the common-law rule that 'all persons materially interested in the result of a suit ought to be made parties, so that the court may * * * 'do complete justice." Vetterlein v. Barnes, 124 U.S.169, 170—171, 8 S.Ct. 441, 442, 31 L.Ed. 400 (1888). Story v. Livingston, 13 Pet. 359, 375, 10 L.Ed. 200 (1839).
25
President Truman, 1947 State of the Union Message, 93 Cong.Rec. 136.
26
The Board has stated its guidelines for resolving jurisdictional disputes:
'The Board will consider all relevant factors in determining who is entitled to the work in dispute, e.g., the skills and work involved, certifications by the Board, company and industry practice, agreements between unions and between employers and unions, awards of arbitrators, joint boards, and the AFL-CIO in the same or related cases, the assignment made by the employer, and the efficient operation of the employer's business.
This list of factors is not meant to be exclusive, but is by way of illustration. * * * Every decision will have to be an act of judgment based on common sense and experience rather than on precedent.' Int'l Assn. of Machinists, Lodge 1743 (J. A. Jones Construction Co.), 135 N.L.R.B. 1402, 1410—1411 (1962).
The Joint Board award in this case was based solely on the Joint Board's interpretation of a 1917 agreement between the two international unions and a 1924 decision interpreting that agreement. R. 53, 69—70, 73—76. At the time of the dispute, the criteria used by the Joint Board in making awards were: 'Decisions and agreements of record as set forth in the Green Book (the Building Trades Department's book of precedents), valid agreements between affected International Unions attested by the Chairman of the Joint Board, established trade practice and prevailing practice in the locality.' Art. III, § 1(a), AFL-CIO Bldg. & Constr. Trades Dept., Plan for Settling Jurisdictional Disputes Nationally and Locally (1965). These criteria were broadened in 1970 by the addition of Art. III, § 1(f), which provides: 'Because efficiency, cost and good management are essential to the well-being of the industry, the Joint Board should not ignore the interests of the consumer in settling jurisdictional disputes.' AFL-CIO Bldg. & Constr. Trades Dept., Plan for Settling Jurisdictional Disputes Nationally and Locally 8 (1970).
27
93 Cong.Rec. 6452—6453; 93 Cong.Rec. 6519 (remarks of Sen. Pepper).
28
Highway Truckdrivers, Local 107 (Safeway Stores, Inc.), 134 N.L.R.B. 1320 (1961).
29
Int'l Assn. of Bridge Workers, Local 678 (W. R. Aldrich & Co.), 145 N.L.R.B. 943 (1964); Carpet, Linoleum & Soft Tile Layers, Local 1905 (Butcher & Sweeney Construction Co.), 143 N.L.R.B. 251 (1963); Wood, Wire & Metal Lathers Union, Local 328 (Acoustics & Specialities, Inc.), 139 N.L.R.B. 598 (1962).
30
Brie for NLRB 30 n. 23. In a case interpreting the Safeway doctrine, the Board stated that § 10(k) is limited 'to situations involving competing claims between rival groups of employees, and (was) not designed to require the Board to arbitrate a dispute between a union and an employer when no * * * competing claims (of another union) are involved.' Carpet, Linoleum & Soft Tile Layers, Local 1905 (Butcher & Sweeney Construction Co.), 143 N.L.R.B. 251, 255—256 (1963) (emphasis in original).
31
Brotherhood of International Carpenters and Joiners of America (A.F.L.-C.I.O.) and Local 1849 v. C. J. Montag & Sons, Inc., 335 F.2d 216, 221 (CA 9 1964); Bldg. and Construction Trades Council of Las Vegas, Local 525 (Charles J. Dorfman), 173 N.L.R.B. 1339 (1968). The Board has also held that a union cannot avoid a § 10(k) determination by a disclaimer of interest in presently representing the employees in question, United Mine Workers (Turman Construction Co.), 136 N.L.R.B. 1068 (1962), and it has ignored explicit disclaimers when it has questioned a representative's authority to disclaim work, Millwrights' Local 1113 (Brogdex Co.), 157 N.L.R.B. 996, 1002 (1966). See also Local 1291, Int'l Longshoremen's Assn. (Pocahontas Steamship Co.), 152 N.L.R.B. 676 (1965), enforced, 368 F.2d 107 (CA3 1966), cert. denied, 386 U.S. 1033, 87 S.Ct. 1482, 18 L.Ed.2d 595 (1967); Bricklayers' Local 2, 152 N.L.R.B. 278, 282 (1965); Bldg. and Construction Trades Council of Las Vegas, Local 525 (Charles J. Dorfman), supra (1968).
| 67
|
404 U.S. 157
92 S.Ct. 383
30 L.Ed.2d 341
ALLIED CHEMICAL & ALKALI WORKERS OF AMERICA, LOCAL UNION NO. 1, Petitioner,v.PITTSBURGH PLATE GLASS COMPANY, CHEMICAL DIVISION, et al. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PITTSBURGH PLATE GLASS COMPANY, CHEMICAL DIVISION, et al.
Nos. 70—32, 70—39.
Argued Oct. 20, 1971.
Decided Dec. 8, 1971.
Syllabus
A labor organization that was the exclusive bargaining agent for employees 'working' on hourly pay rates at one of respondent Company's facilities had negotiated with the Company an employee health insurance plan in which retired employees participated. Upon enactment of Medicare the Union sought mid-term bargaining to renegotiate the insurance benefits for retired employees. The Company, maintaining that Medicare made the insurance program useless and that retirees' benefits were not a mandatory subject of collective bargaining, stated that it would offer each retiree a stated monthly amount toward supplemental Medicare coverage. When, despite Union objections, the Company made the offer, the Union filed unfair labor practice charges with the National Labor Relations Board (NLRB). The NLRB concluded that the Company was guilty of unfair labor practices in violation of §§ 8(a)(5) and (1) of the National Labor Relations Act (NLRA) and issued a cease-and-desist order. The NLRB held that the benefits of already retired employees were a mandatory subject of bargaining as 'terms and conditions of employment' of the retirees themselves and, alternatively, of the active bargaining unit employees. It also held that the Company's 'establishment of a fixed, additional option in and of itself changed the negotiated plan of benefits' contrary to §§ 8(d) and 8(a)(5) of the Act. The Court of Appeals for the Sixth Circuit disagreed with the NLRB and refused to enforce its cease-and-desist order. Held:
1. Retirees' benefits are not, within the meaning of §§ 8(a)(5) and 8(d) of the NLRA, a mandatory subject of bargaining as 'terms and conditions of employment' of the retirees. Pp. 163—176.
(a) The collective-bargaining obligation extends only to the 'terms and conditions of employment' of the employer's 'employees,' and the term 'employee' has its ordinary meaning, i.e., someone who works for another for hire, which excludes retirees. Pp. 165—171.
(b) The collective-bargaining obligation is limited to the 'terms and conditions of employment' of the 'employees' in the bargaining unit appropriate for the purpose of collective bargaining. Retirees were not members of the unit represented by the Union, because they were no longer 'working.' Nor could they be members, since they lack a substantial community of interests with the active employees in the unit. Pp. 171—175.
(c) Even if an industry practice of bargaining over retirees' rights exists, which is disputed, that cannot change the law and make into bargaining unit 'employees' those who are not. Pp. 175 176.
2. Retirees' benefits are not a mandatory subject of bargaining as 'terms and conditions of employment' of the active employees remaining in the bargaining unit, although their own future retirement plans are. Retirees' benefits do not 'vitally' affect the 'terms and conditions of employment' of current employees. The benefits that active workers may reap by including retired employees under the same health insurance contract as themselves are speculative and insubstantial at best. The relationship that the NLRB asserted exists between bargaining in behalf of retirees and the negotiation of active employees' retirement plans is equally too speculative a foundation on which to base an obligation to bargain. Pp. 176—182.
3. Even if the Company's offering the retirees an exchange for their withdrawal from the already negotiated health insurance plan was a unilateral mid-term 'modification' of the plan within the meaning of § 8(d) of the Act, which is disputed, it did not constitute an unfair labor practice, since it related to a permissive rather than a mandatory subject of bargaining. Pp. 183 188.
427 F.2d 936, affirmed.
Mortimer Riemer, Cleveland, Ohio, for petitioner Allied Chemical & Alkali Workers of America, Local Union No. 1.
Norton J. Come, Washington, D.C., for petitioner National Labor Relations Board.
Guy Farmer, Washington, D.C., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Under the National Labor Relations Act, as amended, mandatory subjects of collective bargaining include pension and insurance benefits for active employees,1 and an employer's mid-term unilateral modification of such benefits constitutes an unfair labor practice.2 This cause presents the question whether a mid-term unilateral modification that concerns, not the benefits of active employees, but the benefits of already retired employees also constitutes an unfair labor practice. The National Labor Relations Board, one member dissenting, held that changes in retired employees' retirement benefits are embraced by the bargaining obligation and that an employer's unilateral modification of them constitutes an unfair labor practice in violation of §§ 8(a)(5) and (1) of the Act. 177 N.L.R.B. 911 (1969).3 The Court of Appeals for the Sixth Circuit disagreed and refused to enforce the Board's cease-and-desist order, 427 F.2d 936 (1970). We granted certiorari, 401 U.S. 907, 91 S.Ct. 867, 27 L.Ed.2d 804 (1971). We affirm the judgment of the Court of Appeals.
2
* Since 1949, Local 1, Allied Chemical and Alkali Workers of America, has been the exclusive bargaining representative for the employees 'working' on hourly rates of pay at the Barberton, Ohio, facilities of respondent Pittsburgh Plate Glass Co.4 In 1950, the Union and the Company negotiated an employee group health insurance plan, in which, it was orally agreed, retired employees could participate by contributing the required premiums, to be deducted from their pension benefits. This program continued unchanged until 1962, except for an improvement unilaterally instituted by the Company in 1954 and another improvement negotiated in 1959.
3
In 1962 the Company agreed to contribute two dollars per month toward the cost of insurance premiums of employees who retired in the future and elected to participate in the medical plan. The parties also agreed at this time to make 65 the mandatory retirement age. In 1964 insurance benefits were again negotiated, and the Company agreed to increase its monthly contribution from two to four dollars, applicable to employees retiring after that date and also to pensioners who had retired since the effective date of the 1962 contract. It was agreed, however, that the Company might discontinue paying the two-dollar increase if Congress enacted a national health program.
4
In November 1965, Medicare, a national health program, was enacted, 79 Stat. 291, 42 U.S.C. § 1395 et seq. The 1964 contract was still in effect, and the Union sought mid-term bargaining to renegotiate insurance benefits for retired employees. The Company responded in March 1966 that, in its view, Medicare rendered the health insurance program useless because of a non-duplication-of-benefits provision in the Company's insurance policy, and stated, without negotiating any change, that it was planning to (a) reclaim the additional two-dollar monthly contribution as of the effective date of Medicare; (b) cancel the program for retirees; and (c) substitute the payment of the three-dollar monthly subscription fee for supplemental Medicare coverage for each retired employee.5
5
The Union acknowledged that the Company had the contractual right to reduce its monthly contribution, but challenged its proposal unilaterally to substitute supplemental Medicare coverage for the negotiated health plan. The Company, as it had done during the 1959 negotiations without pressing the point, disputed the Union's right to bargain in behalf of retired employees, but advised the Union that upon further consideration it had decided not to terminate the health plan for pensioners. The Company stated instead that it would write each retired employee, offering to pay the supplemental Medicare premium if the employee would withdraw from the negotiated plan. Despite the Union's objections the Company did circulate its proposal to the retired employees, and 15 of 190 retirees elected to accept it. The Union thereupon filed unfair labor practice charges.
6
The Board held that although the Company was not required to engage in mid-term negotiations, the benefits of already retired employees could not be regarded as other than a mandatory subject of collective bargaining. The Board reasoned that 'retired employees are 'employees' within the meaning of the statute for the purposes of bargaining about changes in their retirement benefits * * *.' 177 N.L.R.B., at 912. Moreover, 'retirement status is a substantial connection to the bargaining unit, for it is the culmination and the product of years of employment.' Id., at 914. Alternatively, the Board considered 'bargaining about changes in retirement benefits for retired employees' as 'within the contemplation of the statute because of the interest which active employees have in this subject * * *.' Id., at 912. Apparently in support of both theories, the Board noted that '(b)argaining on benefits for workers already retired is an established aspect of current labor-management relations.' Id., at 916. The Board also held that the Company's 'establishment of a fixed, additional option in and of itself changed the negotiated plan of benefits' contrary to §§ 8(d) and 8(a)(5) of the Act. Id., at 918. Accordingly, the Company was ordered to cease and desist from refusing to bargain collectively about retirement benefits and from making unilateral adjustments in health insurance plans for retired employees without first negotiating in good faith with the Union. The Company was also required to rescind, at the Union's request, any adjustment it had unilaterally instituted and to mail and post appropriate notices.6
II
7
Section 1 of the National Labor Relations Act declares the policy of the United States to protect commerce 'by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment * * *.' 49 Stat. 449, as amended, 29 U.S.C. § 151. To effectuate this policy, § 8(a)(5) provides that it is an unfair labor practice for an employer 'to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section' 9(a). 49 Stat. 453, as amended, 29 U.S.C. § 158(a)(5). Section 8(d), in turn, defines 'to bargain collectively' as 'the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment * * *.' 61 Stat. 142, 29 U.S.C. § 158(d). Finally, § 9(a) declares: 'Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment * * *.' 49 Stat. 453, as amended, 29 U.S.C. § 159(a).
8
Together, these provisions establish the obligation of the employer to bargain collectively, 'with respect to wages, hours, and other terms and conditions of employment,' with 'the representatives of his employees' designated or selected by the majority 'in a unit appropriate for such purposes.' This obligation extends only to the 'terms and conditions of employment' of the employer's 'employees' in the 'unit appropriate for such purposes' that the union represents. See, e.g., United Mine Workers of America v. Pennington, 381 U.S. 657, 666, 85 S.Ct. 1585, 1591, 14 L.Ed.2d 626 (1965); National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 356 U.S. 345, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958); Packard Motor Car Co. v. National Labor Relations Board, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947); Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 192, 61 S.Ct. 845, 851, 85 L.Ed. 1271 (1941) (dictum); Pittsburgh Plate Glass Co. v. National Labor Relations Board, 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251 (1941). The Board found that benefits of already retired employees fell within these constraints on alternative theories. First, it held that pensioners are themselves 'employees' and members of the bargaining unit, so that their benefits are a 'term and condition' of their employment.7
9
The Court of Appeals, in contrast, held 'that retirees are not 'employees' within the meaning of section 8(a)(5) and * * * the Company was under no constraint to collectively bargaining improvements in their benefits with the Union.' 427 F.2d, at 942. The court reasoned, first, '(r)etirement with this Company, as with most other companies, is a complete and final severance of employment. Upon retirement, employees are completely removed from the payroll and seniority lists, and thereafter they perform no services for the employer, are paid no wages, are under no restrictions as to other employment or activities, and have no rights or expectations of re-employment,' id., at 944; and, second, '(i)t has repeatedly been held that the scope of the bargaining unit controls the extent of the bargaining obligation * * *. (And) the unit certified by the Board as appropriate was composed * * * only of presumably active employees * * *.' Id., at 945. For the reasons that follow we agree with the Court of Appeals.
First. Section 2(3) of the Act provides:
10
'The term 'employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment * * *.' 49 Stat. 450, as amended, 29 U.S.C. § 152(3).
11
We have repeatedly affirmed that the task of determining the contours of the term 'employee' 'has been assigned primarily to the agency created by Congress to administer the Act.' National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 130, 64 S.Ct. 851, 860, 88 L.Ed. 1170 (1944). See also Local No. 207, Int. Ass'n of Bridge, etc., Iron Workers v. Perko, 373 U.S. 701, 706, 83 S.Ct. 1429, 1432, 10 L.Ed.2d 646 (1963); National Labor Relations Board v. E. C. Atkins & Co., 331 U.S. 398, 67 S.Ct. 1265, 91 L.Ed. 1563 (1947). But we have never immunized Board judgments from judicial review in this respect. '(T)he Board's determination that specified persons are 'employees' under this Act is to be accepted if it has 'warrant in the record' and a reasonable basis in law.' National Labor Relations Board v. Hearst Publications, supra, 322 U.S., at 131, 64 S.Ct., at 861.
12
In this cause we hold that the Board's decision is not supported by the law. The Act, after all, as § 1 makes clear, is concerned with the disruption to commerce that arises from interference with the organization and collective-bargaining rights of 'workers'—not those who have retired from the work force. The inequality of bargaining power that Congress sought to remedy was that of the 'working' man, and the labor disputes that it ordered to be subjected to collective bargaining were those of employers and their active employees. Nowhere in the history of the National Labor Relations Act is there any evidence that retired workers are to be considered as within the ambit of the collective-bargaining obligations of the statute.
13
To the contrary, the legislative history of § 2(3) itself indicates that the term 'employee' is not to be stretched beyond its plain meaning embracing only those who work for another for hire. In National Labor Relations Board v. Hearst Publications, supra, we sustained the Board's finding that newsboys were 'employees' rather than independent contractors. We said that 'the broad language of the Act's definitions, which in terms reject conventional limitations on such conceptions as 'employee,' * * * leaves no doubt that its applicability is to be determined broadly, in doubtful situations, by underlying economic facts rather than technically and exclusively by previously established legal classifications.' The term 'employee' 'must be understood with reference to the purpose of the Act and the facts involved in the economic relationship.' 322 U.S., at 129, 64 S.Ct., at 860. Congress reacted by specifically excluding from the definition of 'employee' 'any individual having the status of an independent contractor.' The House, which proposed the amendment, explained:
14
'An 'employee,' according to all standard dictionaries, according to the law as the courts have stated it, and according to the understanding of almost everyone, * * * means someone who works for another for hire. But in the case of National Labor Relations Board v. Hearst Publications, Inc. * * *, the Board * * * held independent merchants who bought newspapers from the publisher and hired people to sell them to be 'employees.' The people the merchants hired to sell the papers were 'employees' of the merchants, but holding the merchants to be 'employees' of the publisher of the papers was most far reaching. It must be presumed that when Congress passed the Labor Act, it intended words it used to have the meanings that they had when Congress passed the act, not new meanings that, 9 years later, the Labor Board might think up. In the law, there always has been a difference, and a big difference, between 'employees' and 'independent contractors.' 'Employees' work for wages or salaries under direct supervision. * * * It is inconceivable that Congress, when it passed the act, authorized the Board to give to every work in the act whatever meaning it wished. On the contrary, Congress intended then, and it intends now, that the Board give to words not far-fetched meanings but ordinary meanings.' H.R.Rep. No. 245, 80th Cong., 1st Sess., 18 (1947) (emphasis added).
15
See also 93 Cong.Rec. 6441—6442; H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 32—33 (1947). The 1947 Taft-Hartley revision made clear that general agency principles could not be ignored in distinguishing 'employees' from independent contractors. National Labor Relations Board v. United Insurance Co., 390 U.S. 254, 256, 88 S.Ct. 988, 989, 19 L.Ed.2d 1083 (1968). Although Hearst Publications was thus repudiated, we do not think its approach has been totally discredited. In doubtful cases resort must still be had to economic and policy considerations to infuse § 2(3) with meaning. But, as the House this is not a doubtful case. The ordinary meaning of 'employee' does not include retired workers; retired employees have ceased to work for another for hire.
16
The decisions on which the Board relied in construing § 2(3) to the contrary are wide of the mark. The Board enumerated 'unfair labor practice situations where the statute has been applied to persons who have not been initially hired by an employer or whose employment has terminated. Illustrative are cases in which the Board has held that applicants for employment and registrants at hiring halls—who have never been hired in the first place—as well as persons who have quit or whose employers have gone out of business are 'employees' embraced by the policies of the Act.' 177 N.L.R.B., at 913 (citations omitted). Yet all of these cases involved people who, unlike the pensioners here, were members of the active work force available for hire and at least in that sense could be identified as 'employees.' No decision under the Act is cited, and none to our knowledge exists, in which an individual who has ceased work without expectation of further employment has been held to be an 'employee.' The Board also found support for its position in decisions arising under § 302(c)(5) of the Labor Management Relations Act, 61 Stat. 157, 29 U.S.C. § 186(c)(5). Section 302 prohibits, inter alia, any payment by an employer to any representative of any of his employees. Subsection (c)(5) provides an exemption for payments to an employee trust fund established 'for the sole and exclusive benefit of the employees of such employer' and administered by equal numbers of representatives of the employer and employees. The word 'employee,' as used in that provision, has been construed to include 'current employees and persons who were * * * current employees but are now retired.' Blassie v. Kroger Co., 345 F.2d 58, 70 (CA8 1965).8 The Board considered that it would be anomalous to hold 'that retired employees are not 'employees' whose ongoing benefits are fit subjects of bargaining under Section 8(a)(5), while under (§ 302(c)) they are 'employees' for the purpose of administering the same health insurance benefits. It would create the further anomaly that a union would not be entitled to act as the representative of retired employees under Section 8(a)(5), while subject to an explicit statutory duty to act as their representative under (§ 302(c)).' 177 N.L.R.B., at 915.9
17
Yet the rationale of Blassie is not at all in point. The question there was simply whether under § 302(c)(5) retirees remain eligible for benefits of trust funds established during their active employment. The conclusion that they do was compelled by the fact that the contrary reading of the statute would have made illegal contributions to pension plans, which the statute expressly contemplates in subsections (A) and (C).10 No comparable situation exists in this case. Furthermore, there is no anomaly in the conclusion that retired workers are 'employees' within § 302(c)(5) entitled to the benefits negotiated while they were active employees, but are not 'employees' whose ongoing benefits are embraced by the bargaining obligation of § 8(a)(5). Contrary to the Board's assertion, the union's role in the administration of the fund is of a far different order from its duties as collective-bargaining agent. To accept the Board's reasoning that the union's § 302(c)(5) responsibilities dictate the scope of the § 8(a)(5) collectivebargaining obligation would be to allow the tail to wag the dog.11
18
Second. Section 9(a) of the Labor Relations Act accords representative status only to the labor organization selected or designated by the majority of employees in a 'unit appropriate' 'for the purposes of collective bargaining.' Section 9(b) goes on to direct the Labor Board to 'decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof * * *.' 49 Stat. 453, as amended, 29 U.S.C. § 159(b). We have always recognized that, in making these determinations, the Board is accorded broad discretion. See National Labor Relations Board v. Hearst Publications, 322 U.S., at 132—135, 64 S.Ct., at 861—862; Pittsburgh Plate Glass Co. v. National Labor Relations Board, 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251 (1941). Moreover, the Board's findings of fact, if supported by substantial evidence, are conclusive. National Labor Relations Act, § 10(e), 49 Stat. 454, as amended, 29 U.S.C. § 160(e). But the Board's powers in respect of unit determinations are not without limits, and if its decision 'oversteps the law,' Packard Motor Car Co. v. National Labor Relations Board, 330 U.S., at 491, 67 S.Ct., at 793, it must be reversed.
19
In this cause, in addition to holding that pensioners are not 'employees' within the meaning of the collective-bargaining obligations of the Act, we hold that they were not and could not be 'employees' included in the bargaining unit. The unit determined by the Board to be appropriate was composed of 'employees of the Employer's plant * * * working on hourly rates, including group leaders who work on hourly rates of pay * * *.' Apart from whether retirees could be considered 'employees' within this language, they obviously were not employees 'working' or 'who work' on hourly rates of pay. Although those terms may include persons on temporary or limited absence from work, such as employees on military duty, it would utterly destroy the function of language to read them as embracing those whose work has ceased with no expectation of return.
20
In any event, retirees could not properly be joined with the active employees in the unit that the Union represents. 'As a standard, the Board must comply * * * with the requirement that the unit selected must be one to effectuate the policy of the act, the policy of efficient collective bargaining.' Pittsburgh Plate Glass Co. v. National Labor Relations Board, supra, 313 U.S., at 165, 61 S.Ct., at 918. The Board must also exercise care that the rights of employees under § 7 of the Act 'to self-organization * * * (and) to bargain collectively through representatives of their own choosing' are duly respected. In line with these standards, the Board regards as its primary concern in resolving unit issues 'to group together only employees who have substantial mutual interests in wages, hours, and other conditions of employment.' 15 NLRB Ann.Rep. 39 (1950). Such a mutuality of interest serves to assure the coherence among employees necessary for efficient collective bargaining and at the same time to prevent a functionally distinct minority group of employees from being submerged in an overly large unit. See Kalamazoo Paper Box Corp., 136 N.L.R.B. 134, 137 (1962).
21
Here, even if, as the Board found, active and retired employees have a common concern in assuring that the latter's benefits remain adequate, they plainly do not share a community of interests broad enough to justify inclusion of the retirees in the bargaining unit. Pensioners' interests extend only to retirement benefits, to the exclusion of wage rates, hours, working conditions, and all other terms of active employment. Incorporation of such a limited-purpose constituency in the bargaining unit would create the potential for severe internal conflicts that would impair the unit's ability to function and would disrupt the processes of collective bargaining. Moreover, the risk cannot be overlooked that union representatives on occasion might see fit to bargain for improved wages or other conditions favoring active employees at the expense of retirees' benefits.12
22
But we need not rely on our own assessment of the probable consequences of including retirees in the bargaining unit to conclude that the resulting unit would be inappropriate. The Board itself has previously recognized that retirees do not have a sufficient interest to warrant participation in the election of a collective-bargaining agent. In Public Service Corp. of New Jersey, 72 N.L.R.B. 224, 229—230 (1947), for example, the Board stated:
23
'We have considerable doubt as to whether or not pensioners are employees within the meaning of Section 2(3) of the Act, since they no longer perform any work for the Employers, and have little expectancy of resuming their former employment. In any event, even if pensioners were to be considered as employees, we believe that they lack a substantial community of interest with the employees who are presently in the active service of the Employers. Accordingly, we find that pensioners are ineligible to vote in the election.'13
24
The Board argues, however, that the pensioners' ineligibility to vote is not dispositive of their right to membership in the bargaining unit, since the franchise and the right to membership depend upon different levels of interest in the unit.14 Yet in W. D. Byron & Sons of Maryland, Inc., 55 N.L.R.B. 172, 174—175 (1944), which the Board found controlling in Public Service Corp. of New Jersey, see 72 N.L.R.B., at 230 n. 10, the Board not merely held ineligible to vote, but expressly excluded from the bargaining unit pensioners who had little expectation of further employment. In any event, it would be clearly inconsistent with the majority rule principle of the Act to deny a member of the unit at the time of an election a voice in the selection of his bargaining representative.15 The Board's own holdings thus compel the conclusion that a unit composed of active and retired workers would be inappropriate.
25
Third. The Board found that bargaining over pensioners' rights has become an established industrial practice. But industrial practice cannot alter the conclusions that retirees are neither 'employees' nor bargaining unit members. The parties dispute whether a practice of bargaining over pensioners' benefits exists and, if so, whether it reflects the views of labor and management that the subject is not merely a convenient but a mandatory topic of negotiation.16 But even if industry commonly regards retirees' benefits as a statutory subject of bargaining, that would at most, as we suggested in Fibreboard Paper Products Corp. v. National Labor Relations Board, 379 U.S. 203, 211, 85 S.Ct. 398, 403, 13 L.Ed.2d 233 (1964), reflect the interests of employers and employees in the subject matter as well as its amenability to the collective-bargaining process; it would not be determinative. Common practice cannot change the law and make into bargaining unit 'employees' those who are not.
III
26
Even if pensioners are not bargaining unit 'employees,' are their benefits, nonetheless, a mandatory subject of collective bargaining as 'terms and conditions of employment' of the active employees who remain in the unit? The Board held, alternatively, that they are, on the ground that they 'vitally' affect the 'terms and conditions of employment' of active employees principally by influencing the value of both their current and future benefits. 177 N.L.R.B., at 915.17 The Board explained: 'It is not uncommon to group active and retired employees under a single health insurance contract with the result that * * * it is the size and experience of the entire group which may determine insurance rates.' Ibid. Consequently, active employees may 'benefit from the membership of retired employees in the group whose participation enlarges its size and might thereby lower costs per participant.' Ibid. Furthermore, the actual value of future benefits depends upon contingencies, such as inflation and changes in public law, which the parties cannot adequately anticipate and over which they have little or no control. By establishing a practice of representing retired employees in resolving those contingencies as they arise, active workers can insure that their own retirement benefits will survive the passage of time. This, in turn, the Board contends, facilitates the peaceful settlement of disputes over active employees' pension plans. The Board's arguments are not insubstantial, but they do not withstand careful scrutiny.
27
Section 8(d) of the Act, of course, does not immutably fix a list of subjects for mandatory bargaining. See, e.g., Fibreboard Paper Products Corp. v. National Labor Relations Board, supra, 379 U.S., at 220—221, 85 S.Ct., at 407—408 (Stewart, J., concurring); Richfield Oil Corp. v. National Labor Relations Board, 97 U.S.App.D.C. 383, 389—390, 231 F.2d 717, 723—724 (1956). But it does establish a limitation against which proposed topics must be measured. In general terms, the limitation includes only issues that settle an aspect of the relationship between the employer and employees. See, e.g., National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958). Although normally matters involving individuals outside the employment relationship do not fall within that category, they are not wholly excluded. In Local 24, Inter. Teamsters, etc., Union v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (1959), for example, an agreement had been negotiated in the trucking industry, establishing a minimum rental that carriers would pay to truck owners who drove their own vehicles in the carriers' service in place of the latter's employees. Without determining whether the owner-drivers were themselves 'employees,' we held that the minimum rental was a mandatory subject of bargaining, and hence immune from state antitrust laws, because the term 'was integral to the establishment of a stable wage structure for clearly covered employee-drivers.' United States v. Drum, 368 U.S. 370, 382—383 n. 26, 82 S.Ct. 408, 414, 7 L.Ed.2d 360 (1962).18 Similarly, in Fibreboard Paper Products Corp. v. National Labor Relations Board, supra, 379 U.S., at 215, 85 S.Ct., at 405, we held that 'the type of 'contracting out' involved in this case—the replacement of employees in the existing bargaining unit with those of an independent contractor to do the same work under similar conditions of employment—is a statutory subject of collective bargaining * * *.' As we said there, id., at 213, 85 S.Ct., at 404, 'the work of the employees in the bargaining unit was let out piecemeal in Oliver, whereas here the work of the entire unit has been contracted out.'
28
The Board urges that Oliver and Fibreboard provide the principle governing this cause. The Company, on the other hand, would distinguish those decisions on the ground that the unions there sought to protect employees from outside threats, not to represent the interests of third parties. We agree with the Board that the principle of Oliver and Fibreboard is relevant here; in each case the question is not whether the third-party concern is antagonistic to or compatible with the interests of bargaining-unit employees, but whether it vitally affects the 'terms and conditions' of their employment.19 But we disagree with the Board's assessment of the significance of a change in retirees' benefits to the 'terms and conditions of employment' of active employees.
29
The benefits that active workers may reap by including retired employees under the same health insurance contract are speculative and insubstantial at best. As the Board itself acknowledges in its brief, the relationship between the inclusion of retirees and the overall insurance rate is uncertain. Adding individuals increases the group experience and thereby generally tends to lower the rate, but including pensioners, who are likely to have higher medical expenses, may more than offset that effect. In any event, the impact one way or the other on the 'terms and conditions of employment' of active employees is hardly comparable to the loss of jobs threatened in Oliver and Fibreboard. In Fibreboard, after holding that 'the replacement of employees in the existing bargaining unit with those of an independent contractor to do the same work under similar conditions of employment' is a mandatory subject of bargaining, we noted that our decision did 'not encompass other forms of 'contracting out' or 'subcontracting' which arise daily in our complex economy.' 379 U.S., at 215, 85 S.Ct., at 405. The inclusion of retirees in the same insurance contract surely has even less impact on the 'terms and conditions of employment' of active employees than some of the contracting activities that we excepted from our holding in Fibreboard.
30
The mitigation of future uncertainty and the facilitation of agreement on active employees' retirement plans, that the Board said would follow from the union's representation of pensioners, are equally problematical. To be sure, the future retirement benefits of active workers are part and parcel of their overall compensation and hence a well-established statutory subject of bargaining. Moreover, provisions of those plans to guard against future contingencies are equally subsumed under the collective-bargaining obligation. Under the Board's theory, active employees undertake to represent pensioners in order to protect their own retirement benefits, just as if they were bargaining for, say, a cost-of-living escalation clause. But there is a crucial difference. Having once found it advantageous to bargain for improvements in pensioners' benefits, active workers are not forever thereafter bound to that view or obliged to negotiate in behalf of retirees again.20 To the contrary, they are free to decide, for example, that current income is preferable to greater certainty in their own retirement benefits or, indeed, to their retirement benefits altogether. By advancing pensioners' interests now, active employees, therefore, have no assurance that they will be the beneficiaries of similar representation when they retire. The insurance against future contingencies that they may buy in negotiating benefits for retirees is thus a hazardous and, therefore, improbable investment, far different from a cost-of-living escalation clause that they could contractually enforce in court. See n. 20, supra. We find, accordingly, that the effect that the Board asserts bargaining in behalf of pensioners would have on the negotiation of active employees' retirement plans is too speculative a foundation on which to base an obligation to bargain.
31
Nor does the Board's citation of industrial practice provide any ground for concluding otherwise. The Board states in its brief that '(n)either the bargaining representative nor the active employees * * * can help but recognize that the active employees of today are the retirees of tomorrow—indeed, such a realization undoubtedly underlies the widespread industrial practice of bargaining about benefits of those who have already retired * * * and explains the vigorous interest which the Union has taken in this case.' But accepting the Board's finding that the industrial practice exists, we find nowhere a particle of evidence cited showing that the explanation for this lies in the concern of active workers for their own future retirement benefits.
32
We recognize that 'classification of bargaining subjects as 'terms (and) conditions of employment' is a matter concerning which the Board has special expertise.' Local Union No. 189, Amal. Meat Cutters v. Jewel Tea, 381 U.S. 676, 685—686, 85 S.Ct. 1596, 1600, 14 L.Ed.2d 640 (1965). The Board's holding in this cause, however, depends on the application of law to facts, and the legal standard to be applied is ultimately for the courts to decide and enforce. We think that in holding the 'terms and conditions of employment' of active employees to be vitally affected by pensioners' benefits, the Board here simply neglected to give the adverb its ordinary meaning. Cf. National Labor Relations Board v. Brown, 380 U.S. 278, 292, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965).
IV
33
The question remains whether the Company committed an unfair labor practice by offering retirees an exchange for their withdrawal from the already negotiated health insurance plan. After defining 'to bargain collectively' as meeting and conferring 'with respect to wages, hours, and other terms and conditions of employment,' § 8(d) of the Act goes on to provide in relevant part that 'where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract' except upon (1) timely notice to the other party, (2) an offer to meet and confer 'for the purpose of negotiating a new contract or a contract containing the proposed modifications,' (3) timely notice to the Federal Mediation and Conciliation Service and comparable state or territorial agencies of the existence of a 'dispute,' and (4) continuation 'in full force and effect (of) * * * all the terms and conditions of the existing contract * * * until (its) expiration date * * *.'21 The Board's trial examiner ruled that the Company's action in offering retirees a change in their health plan did not amount to a 'modification' of the collective-bargaining agreement in violation of § 8(d), since the pensioners had merely been given an additional option that they were free to accept or decline as they saw fit. The Board rejected that conclusion on the ground that there were several possible ways of adjusting the negotiated plan to the Medicare provisions and the Company 'modified' the contract by unilaterally choosing one of them. The Company now urges, in effect, that we adopt the views of the trial examiner. We need not resolve, however, whether there was a 'modification' within the meaning of § 8(d), because we hold that even if there was, a 'modification' is a prohibited unfair labor practice only when it changes a term that is a mandatory rather than a permissive subject of bargaining.
34
Paragraph (4) of § 8(d), of course, requires that a party proposing a modification continue 'in full force and effect * * * all the terms and conditions of the existing contract' until its expiration. Viewed in isolation from the rest of the provision, that language would preclude any distinction between contract obligations that are 'terms and conditions of employment' and those that are not. But in construing § 8(d), "we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy." Mastro Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed. 309 (1956) (quoting United States v. Boisdore's Heirs, 8 How. 113, 122, 12 L.Ed. 1009). See also National Labor Relations Board v. Lion Oil Co., 352 U.S. 282, 288, 77 S.Ct. 330, 333, 1 L.Ed.2d 331 (1957). Seen in that light, § 8(d) embraces only mandatory topics of bargaining. The provision begins by defining 'to bargain collectively' as meeting and conferring 'with respect to wages, hours, and other terms and conditions of employment.' It then goes on to state that 'the duty to bargain collectively shall also mean' that mid-term unilateral modifications and terminations are prohibited. Although this part of the section is introduced by a 'proviso' clause, see n. 21, supra, it quite plainly is to be construed in pari materia with the preceding definition. Accordingly, just as § 8(d) defines the obligation to bangain to be with respect to mandatory terms alone, so it prescribes the duty to maintain only mandatory terms without unilateral modification for the duration of the collective-bargaining agreement.22
35
The relevant purpose of § 8(d) that emerges from the legislative history of the Act together with the text of the provision confirms this understanding. The section stems from the 1947 revision of the Act, an important theme of which was to stabilize collective-bargaining agreements. The Senate bill, in particular, contained provisions in §§ 8(d) and 301(a) to prohibit unilateral mid-term modifications and terminations and to confer federal jurisdiction over suits for contract violations. See S. 1126, 80th Cong., 1st Sess., §§ 8(d), 301(a). The bill also included provisions to make it an unfair labor practice for an employer or labor organization 'to violate the terms of a collective-bargaining agreement.' Id., §§ 8(a)(6), 8(b)(5). In conference the Senate's proposed §§ 8(d) and 301(a) were adopted with relatively few changes. See H.R.Conf.Rep. No. 510, supra, at 34—35, 65—66. The provisions to make contract violations an unfair labor practice, on the other hand, were rejected with the explanation that '(o)nce parties have made a collective bargaining contract the enforcement of that contract should be left to the usual process of the law and not to the National Labor Relations Board.' Id., at 42. The purpose of the proscription of unilateral midterm modifications and terminations in § 8(d) cannot be, therefore, simply to assure adherence to contract terms. As far as unfair-labor-practice remedies are concerned, that goal was to be achieved through other unfair-labor-practice provisions that were rejected in favor of customary judicial procedures. See Dowd Box Co. v. Courtney, 368 U.S. 502, 510—513, 82 S.Ct. 519, 524—525, 7 L.Ed.2d 483 (1962).
36
The structure and language of § 8(d) point to a more specialized purpose than merely promoting general contract compliance. The conditions for a modification or termination set out in paragraphs (1) through (4) plainly are designed to regulate modifications and terminations so as to facilitate agreement in place of economic warfare. Thus, the party desiring to make a modification or termination is required to serve a written notice on the other party, offer to meet and confer, notify mediation and conciliation agencies if necessary, and meanwhile maintain contract relations. Accordingly, we think we accurately described the relevant aim of § 8(d) when we said in Mastro Plastics Corp. v. National Labor Relations Board, supra, 350 U.S., at 284, 76 S.Ct., at 359, that the provision 'seeks to bring about the termination and modification of collective-bargaining agreements without interrupting the flow of commerce or the production of goods * * *.'
37
If that is correct, the distinction that we draw between mandatory and permissive terms of bargaining fits the statutory purpose. By once bargaining and agreeing on a permissive subject, the parties, naturally, do not make the subject a mandatory topic of future bargaining. When a proposed modification is to a permissive term, therefore, the purpose of facilitating accord on the proposal is not at all in point, since the parties are not required under the statute to bargain with respect to it. The irrelevance of the purpose is demonstrated by the irrelevance of the procedures themselves of § 8(d). Paragraph (2), for example, requires an offer 'to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications.' But such an offer is meaningless if a party is statutorily free to refuse to negotiate on the proposed change to the permissive term. The notification to mediation and conciliation services referred to in paragraph (3) would be equally meaningless, if required at all.23 We think it would be no less beside the point to read paragraph (4) of § 8(d) as requiring continued adherence to permissive as well as mandatory terms. The remedy for a unilateral mid-term modification to a permissive term lies in an action for breach of contract, see n. 20, supra, not in an unfair-labor-practice proceeding.24
38
As a unilateral mid-term modification of a permissive term such as retirees' benefits does not, therefore, violate § 8(d), the judgment of the Court of Appeals is
39
Affirmed.
40
Mr. Justice DOUGLAS dissents.
1
See e.g., National Labor Relations Board v. Black-Clawson Co., 210 F.2d 523 (CA6 1954) (dictum); National Labor Relations Board v. General Motors Corp., 179 F.2d 221 (CA2 1950); W. W. Cross & Co. v. National Labor Relations Board, 174 F.2d 875 (CA1 1949); Inland Steel Co. v. National Labor Relations Board, 170 F.2d 247 (CA7 1948).
2
See, e.g., National Labor Relations Board v. Scam Instrument Corp., 394 F.2d 884 (CA7 1968). Cf., e.g., National Labor Relations Board v. Huttig Sash & Door Co., 377 F.2d 964 (CA8 1967); C & § Industries, Inc., 158 N.L.R.B. 454 (1966). See also National Labor Relations Board v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962).
3
The Board has since adhered to its decision in: Union Carbide Corp.-Linde Div., 76 L.R.R.M. 1585 (1971); Westinghouse Electric Corp., 76 L.R.R.M. 1548 (1970); and Hooker Chemical Corp., 75 L.R.R.M. 1357 (1970).
4
The Labor Board's direction of election described the bargaining unit as: 'all employees of the Employer's plant and limestone mine at Barberton, Ohio, working on hourly rates, including group leaders who work on hourly rates of pay, but excluding salaried employees and supervisors * * *.' (Emphasis supplied.) The Union was recertified in 1970, after the Board's decision in this cause, with the same unit description embracing only employees working on hourly rates.
5
Hospital benefits under Medicare are provided automatically to any social security annuitant 65 or over. Medical benefits are optional and, at the relevant time period, required a monthly three-dollar payment per person.
6
The Board found that the Company had violated not only § 8(a)(5) but § 8(a)(1), and the Board framed its cease-and-desist order accordingly. Section 8(a)(1) makes it an unfair labor practice for an employer 'to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in' § 7, which include 'the right to self-organization * * * (and) to bargain collectively through representatives of their own choosing * * *.' 49 Stat. 452, as amended, 29 U.S.C. §§ 158(a)(1), 157. However, the § 8(a)(1) violation derives from the alleged § 8(a)(5) misconduct and, therefore, presents no separate issues.
7
The Court of Appeals below seems to have read the Board's decision as holding that retirees might be considered 'employees' under the Act, but not as finding that the retirees in this case were. See 427 F.2d, at 944 n. 14. We do not read the Board's, decision that way. The Board said: 'For the reasons stated above, the 'underlying economic facts' of this case persuade us that Congress intended to confer employee status on retired employees with respect to health insurance plans affecting them.' 177 N.L.R.B. 911, 914.
8
See also Garvison v. Jensen, 355 F.2d 487 (CA9 1966); Local No. 688, Int') Bro. of Teamsters v. Townsend, 345 F.2d 77 (CA8 1965). Section 501(3) of the Labor Management Relations Act provides that the term 'employee' as used in that legislation has the same meaning as when used in the National Labor Relations Act. 61 Stat. 161, 29 U.S.C. § 142(3).
9
Although the Board referred to § 302(b) rather than § 302(c), it is clear from the context of the Board's discussion that the latter citation was the one intended.
10
Section 302(c)(5) provides an exemption:
'with respect to money or other thing of value paid to a trust fund established by such (employee) representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents * * *: Provided, That (A) such payments are held in trust for the purpose of paying * * * for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; * * * and (C) such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pensions or annuities * * *.' (Emphasis supplied.)
The express reference to pensions in subsections (A) and (C) requires that the phrase 'for the sole and exclusive benefit of the employees of such employer' in the introductory clause to § 302(c)(5) be read to include retirees.
11
The Board adds an argument in its brief for construing 'employee' in §§ 302(c)(5) and 8(a)(5) in pari materia. Not to read the term that way, the Board contends, 'would frequently interject into welfare plan negotiations the troublesome threshold question whether particular proposals involved the administration of the written agreement, in which case the union would be entitled to represent retired employees, or its renegotiation, in which case * * * it would not.' However, nothing we hold today precludes permissive bargaining over the benefits of already retired employees. Moreover, to the extent that 'the troublesome threshold question' posited by the Board may arise, it is no different from the task of distinguishing the distinct functions of contract application and contract negotiation which employers and labor organizations are already accustomed to addressing.
12
The Board argues in its brief that retirees will be at a greater disadvantage if they are required to bargain individually with the employer than if they are represented by the union. The argument assumes that collective bargaining over the benefits of already retired employees would be a one-way street in their favor. The assumption, however, is not free from doubt, as the Board itself recognized in its opinion, see 177 N.L.R.B., at 917, in declining to take a position on the question. Compare Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945), adhered to on rehearing, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928 (1946), with § 9(a) of the National Labor Relations Act. In any event, in representing retirees in the negotiation of retirement benefits, the union would be bound to balance the interests of all its constituents, with the result that the interests of active employees might at times be preferred to those of retirees. See Recent Developments, 68 Mich.L.Rev. 757, 766—767, 772—773 (1970).
13
See also J. S. Young Co., 55 N.L.R.B. 1174 (1944). The Board indicates in its brief that it adheres to these decisions. Indeed, we are informed by the Company that the Board excluded retirees from the representation election that it conducted following its decision in this case. See n. 4, supra.
14
The Board on that theory at one time withheld the right to vote from certain employees who were, nonetheless, acknowledged unit members. See, e.g., H. P. Wasson & Co., 105 N.L.R.B. 373 (1953). However, that policy was subsequently abandoned. See Post Houses, Inc., 161 N.L.R.B. 1159, 1160 n. 1, 1172 (1966).
15
Section 7 of the Act declares that '(e)mployees shall have the right * * * to bargain collectively through representatives of their own choosing * * *.' Section 9(a), in turn, provides that '(r)epresentatives designated or selected * * * by the majority of the employees in a unit * * * shall be the exclusive representatives of all the employees in such unit * * *.' The majority rule principle that the Act thus establishes was adopted after considerable public controversy. Both the House and the Senate committees that reported out the Wagner bill were at pains to explain that the principle not only was necessary for the effective functioning of collective bargaining but was sanctioned by the philosophy of democratic institutions. Moreover, they carefully reviewed the provisions that the Act etablishes to protect minority groups within the bargaining unit, such as the prohibition on discrimination in favor of union members. See H.R.Rep.No.972, 74th Cong., 1st Sess., 18—20 (1935); S.Rep.No.573, 74th Cong., 1st Sess., 13—14 (1935). The language of §§ 7 and 9(a), coupled with this legislative history, makes plain that all unit members are enfranchised.
This is not to say that the Board is without power to develop reasonable regulations governing who may vote in Board-conducted elections. The House committee expressly indicated that the Board may 'make and publish appropriate rules governing the conduct of elections and determining who may participate therein.' H.R.Rep.No.972, supra, at 20. Thus, the Board may, for example, withhold the ballot from employees hired after the election eligibility date. As Member Zagoria explained in his dissent from the Board's decision below, that rule 'provides an administrative cutoff date for convenience in conducting elections, and to prevent payroll padding and other possible abuses.' 177 N.L.R.B., at 919.
16
The Company also contends that the record is barren of any evidence to support the Board's findings on industry experience. Even if that is the case, the evidence cited by the Board may have properly been officially noticed. But we need not decide that question in view of our conclusion that the industrial practice that the Board found to exist does not validate its holdings.
17
The additional interests that the Board found active employees have in pensioners' benefits were properly dealt with by the Court of Appeals below and do not need extended consideration here. The Board stated that 'the Union and current employees have a legitimate interest in assuring that negotiated retirement benefits
are in fact paid and administered in accordance with the terms and intent of their contracts * * *.' 177 N.L.R.B., at 915. That interest is undeniable. But Congress has specifically established a remedy for breaches of collective-bargaining agreements in § 301 of the Labor Managment Relations Act. 61 Stat. 156, 29 U.S.C. § 185. See, e.g., Upholsterers' Int'l, Union of North America, AFL-CIO v. American Pad & Textile Co., 372 F.2d 427 (CA6 1967). Similarly, Congress has expressly provided for employee representation in the administration of trust funds under § 302(c)(5) of that Act. In any event, the question presented is not whether retirement rights are enforceable, but whether they are subject to compulsory bargaining.
The Board also noted 'that changes in retirement benefits for retired employees affect the availability of employer funds for active employees.' 177 N.L.R.B., at 915. That, again, is quite true. But countless other employer expenditures that concededly are not subjects of mandatory bargaining, such as supervisors' salaries and dividends, have a similar impact. The principle that underlies the Board's argument sweeps with far too broad a brush. The Board does suggest in its brief that pensioners' benefits are different from other employer expenses because they are normally regarded as part of labor costs. The employer's method of accounting, however, hardly provides a suitable basis for distinction. In any case, the impact on active employees' compensation from changes in pensioners' benefits is, like the effect discussed in the text of including retirees under the same health insurance plan as active employees, too insubstantial to bring those changes within the collective-bargaining obligation.
18
Specifically, we noted in Oliver, 358 U.S., at 294, 79 S.Ct., at 304:
'(The collective-bargaining agreement constitutes) * * * a direct frontal attack upon a problem thought to threaten the maintenance of the basic wage structure established by the * * * contract. The inadequacy of a rental which means that the owner makes up his excess costs from his driver's wages not only clearly bears a close relation to labor's efforts to improve working conditions but is in fact of vital concern to the carrier's employed drivers; an inadequate rental might mean the progressive curtailment of jobs through withdrawal of more and motor carrier-owned vehicles from service.'
19
This is not to say that application of Oliver and Fibreboard turns only on the impact of the third-party matter on employee interests. Other considerations, such as the effect on the employer's freedom to conduct his business, may be equally important. See Fibreboard Paper Products Corp. v. National Labor Relations Board, supra, at 217, 85 S.Ct., at 406 (Stewart, J., concurring). But we have no occasion in this case to consider what, if any, those considerations may be.
20
Since retirees are not members of the bargaining unit, the bargaining agent is under no statutory duty to represent them in negotiations with the employer. Nothing in Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952), is to the contrary. In Howard we held that a union may not use the powers accorded it under law for the purposes of racial discrimination even against workers who are not members of the bargaining unit represented by the union. The reach and rationale of Howard are a matter of some conjecture. See Cox, The Duty of Fair Representation, 2 Vill.L.Rev. 151, 157—159 (1957). But whatever its theory, the case obviously does not require a union affirmatively to represent non-bargaining unit members or to take into account their interests in making bona fide economic decisions in behalf of those whom it does represent.
This does not mean that when a union bargains for retirees which nothing in this opinion precludes if the employer agrees—the retirees are without protection. Under established contract principles, vested retirement rights may not be altered without the pensioner's consent. See generally Note, 70 Col.L.Rev. 909, 916—920 (1970). The retiree, moreover, would have a federal remedy under § 301 of the Labor Management Relations Act for breach of contract if his benefits were unilaterally changed. See Smith v. Evening News Assn., 371 U.S. 195, 200—201, 83 S.Ct. 267, 270—271, 9 L.Ed.2d 246 (1962); Lewis v. Benedict Coal Corp., 361 U.S. 459, 470, 80 S.Ct. 489, 495, 4 L.Ed.2d 442 (1960).
21
Section 8(d) reads in full:
'For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: Provided, That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification—
'(1) serves a written notice upon the other party to the contract
of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification;
'(2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications;
'(3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and
'(4) continues in full force and effect, without resorting to strike or lock-out, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later:
'The duties imposed upon employers, employees, and labor organizations by paragraphs (2)—(4) of this subsection shall become inapplicable upon an intervening certification of the Board, under which the labor organization or individual, which is a party to the contract, has been superseded as or ceased to be the representative of the employees subject to the provisions of section 159(a) of this title, and the duties so imposed shall not be contrued as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract. Any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections 158—160 of this title, but such loss of status for such employee shall terminate if and when he is reemployed by such employer.' 29 U.S.C. § 158(d).
22
In coming to a contrary conclusion, the trial examiner mistakenly relied on Brotherhood of Painters, Local Union No. 1385, 143 N.L.R.B. 678 (1963), where the Board held that a union violated § 8(d) by refusing to execute a written contract containing a permissive term to which it had previously agreed. 'The parties did discuss the provision,' the Board reasoned, 'and for us to hold that the Employers in this case may not insist on the inclusion of this provision in their contract would upset, if not undo, the stabilizing effects of the agreement which was reached after several negotiation meetings.' Id., at 680. The union was required to sign the contract at the employers' request, not because § 8(d) reaches permissive terms, but because the union's refusal obstructed execution of an agreement on mandatory terms. Cf. National Labor Relations Board v. Katz, supra, n. 2.
23
The notification required by paragraph (3) is 'of the existence of a dispute.' Section 2(9) of the Act defines 'labor dispute' to include 'any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment * * *.' 49 Stat. 450, as amended, 29 U.S.C. § 152(9). Since controversies over permissive terms are excluded from the definition, a paragraph (3) notice might not be required in the case of a proposed modification to such a term even if § 8(d) applied.
24
It does not appear whether the collective-bargaining agreement involved in this cause provided for arbitration that would have been applicable to this dispute. We express no opinion, therefore, on the relevance of such a provision to the question before us.
| 67
|
404 U.S. 97
92 S.Ct. 349
30 L.Ed.2d 296
CHEVRON OIL COMPANY, Petitioner,v.Gaines Ted HUSON.
No. 70—11.
Argued Oct. 20, 1971.
Decided Dec. 6, 1971.
Syllabus
Respondent was injured in December 1965 while working on petitioner's artificial island drilling rig, located on the Outer Continental Shelf off the Louisiana coast. Allegedly, not until many months later were the injuries discovered to be serious. In January 1968 respondent brought suit for damages against petitioner in federal district court. The District Court, relying on Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969), held that Louisiana's one-year limitation on personal injury actions applied rather than the admiralty laches doctrine, and granted petitioner's motion for summary judgment. Rodrigue had held that state law and not admiralty law applied to fixed structures on the Outer Continental Shelf under the Outer Continental Shelf Lands Act (hereinafter Lands Act), and extended to that area as federal laws the laws of the adjacent State 'to the extent that they are applicable and not inconsistent' with federal laws. Respondent argued on appeal that in view of pre-Rodrigue jurisprudence making admiralty law (including the laches doctrine) applicable, it would be unfair to give that decision retrospective effect. The Court of Appeals, not reaching that argument, reversed, holding that Louisiana's 'prescriptive' time limitation, which barred the remedy but did nto extinguish the right to recovery, was not binding outside a Louisiana forum. Consequently, the court concluded that the time limitation was not 'applicable' of its own force and was 'inconsistent' with the admiralty laches doctrine, which though not directly applicable by virtue of Rodrigue was applicable as a matter of federal common law. Held:
1. The Lands Act, as interpreted in Rodrigue, requires that a State's statute of limitations be applied to actions for personal injuries occurring on fixed structures on the Outer Continental Shelf. The fact that the Louisiana law is 'prescriptive' does not make it inapplicable as federal law under the Lands Act, and a federal court may not apply a laches test to preclude application of the state time limitation. Pp. 100—105.
2. The Louisiana one-year statute of limitations should not, however, bar respondent's action here since retroactive application of that statute under Rodrigue would deprive respondent of any remedy at all on the basis of the unforeseeable superseding legal doctrine of that decision. Pp. 105—109.
5 Cir., 430 F.2d 27, affirmed.
Lloyd Cyril Melancon, New Orleans, La., for petitioner.
Samuel C. Gainsburgh, New Orleans, La., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The respondent, Gaines Ted Huson, suffered a back injury while working on an artificial island drilling rig owned and operated by the petitioner, Chevron Oil Co., and located on the Outer Continental Shelf off the Gulf Coast of Louisiana. The injury occurred in December 1965. Allegedly, it was not until many months later that the injury was discovered to be a serious one. In January 1968 the respondent brought suit for damages against the petitioner in federal district court. The respondent's delay in suing the petitioner ultimately brought his case to this Court.
2
The issue presented is whether the respondent's action is time barred and, more particularly, whether state or federal law determines the timeliness of the action. That issue must be resolved under the Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U.S.C. § 1331 et seq. (hereinafter 'Lands Act'), which governs injuries occurring on fixed structures on the Outer Continental Shelf. When this lawsuit was initiated, there was a line of federal court decisions interpreting the Lands Act to make general admiralty law, including the equitable doctrine of laches, applicable to personal injury suits such as the respondent's.1 The petitioner did not question the timeliness of the action as a matter of laches. While pretrial discovery proceedings were still under way, however, this Court announced its decision in Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360. That decision entirely changed the complexion of this case. For it established that the Lands Act does not make admiralty law applicable to actions such as this one. Relying on Rodrigue, the District Court held that Louisiana's one-year limitation on personal injury actions, rather than the admiralty doctrine of laches, must govern this case. It concluded, therefore, that the respondent's action was time barred and granted summary judgment for the petitioner.2
3
On appeal, the respondent argued that Rodrigue should not be applied retroactively to bar actions filed before the date of its announcement.3 But the Court of Appeals declined to reach that question. Instead, it held that the interpretation of the Lands Act in Rodrigue does not compel application of the state statute of limitations or prevent application of the admiralty doctrine of laches. It concluded that the doctrine of laches should have been applied by the District Court and, therefore, reversed that court's judgment and remanded the case for trial. 5 Cir., 430 F.2d 27. We granted certiorari to consider the Court of Appeals' construction of the Lands Act and of Rodrigue. 402 U.S. 942, 91 S.Ct. 1608, 29 L.Ed.2d 109. We hold that the Lands Act, as interpreted in Rodrigue, requires that the state statute of limitations be applied to personal injury actions. We affirm the judgment of the Court of Appeals, however, on the ground that Rodrigue should not be invoked to require application of the Louisiana time limitation retroactively to this case.
4
* The Lands Act makes the Outer Continental Shelf, including fixed structures thereon, an area of exclusive federal jurisdiction, 43 U.S.C. § 1333(a)(1). The Act extends the laws of the United States to this area, 43 U.S.C. § 1333(a) (1), and provides that the laws of the adjacent State shall also apply '(t)o the extent that they are applicable and not inconsistent' with applicable federal laws, 43 U.S.C. § 1333(a)(2).4 To the extent that a comprehensive body of federal law is applicable under § 1333(a)(1), state law 'inconsistent' with that law would be inapplicable under § 1333(a)(2).
5
In Rodrigue, we clarified the scope of application of federal law and state law under § 1333(a)(1) and § 1333(a)(2). By rejecting the view that comprehensive admiralty law remedies apply under § 1333(a)(1), we recognized that there exists a substantial 'gap' in federal law. Thus, state law remedies are not 'inconsistent' with applicable federal law. Accordingly, we held that, in order to provide a remedy for wrongful death, the 'gap' must be filled with the applicable body of state law under § 1333(a)(2).
6
The Court of Appeals acknowledged that Rodrigue clearly establishes that the remedy for personal injury, as for wrongful death, cannot be derived from admiralty law but must be governed by the law of the adjacent State, Louisiana. But the court held that Louisiana's time limitation on personal injury actions need not be applied with the substantive remedy. It supported this holding by reference to the terms of § 1333(a)(2) that limit the application of state law under the Lands Act. The Louisiana time limitation, the Court of Appeals reasoned, is not 'applicable' of its own force and is 'inconsistent' with the admiralty doctrine of laches. The court held that, despite the holding in Rodrique, the laches doctrine is applicable as a matter of federal common law. We must disagree.
7
The Court of Appeals did not suggest that state statutes of limitations are per se inapplicable under § 1333(a)(2). Rather, it focused on the peculiar nature of the Louisiana time limitation on personal injury actions found in Art. 3536, La.Civ.Code Ann. Article 3536 provides that personal injury actions shall be 'prescribed' by one year. The Court of Appeals attached muct significance to the fact that Article 3536 'prescribes,' rather than 'perempts,' such actions. Under Louisiana law 'prescription,' unlike 'peremption,' bars the remedy but does not formally extinguish the right to recovery. See Page v. Cameron Iron Works, Inc., 5 Cir., 259 F.2d 420, 422—424; Istre v. Diamond M. Drilling Co., 226 So.2d 779, 794—795 (La.App.); Succession of Pizzillo, 223 La. 328, 335, 65 So.2d 783, 786. This characterization has importance under principles of the conflict of laws. It has been held, as a matter of Louisiana conflicts law, that mere 'prescriptive' time limitations are not binding outside their own forum. See Fidelity & Casualty Co. v. C/B Mr. Kim, 5 Cir., 345 F.2d 45, 50; Kozan v. Comstock, 5 Cir., 270 F.2d 839, 841; Istre v. Diamond M. Drilling Co., supra, 226 So.2d at 795. Reasoning from this principle of conflicts law, the Court of Appeals concluded that the 'prescriptive' limitation is not 'applicable' in a federal court adjudicating a claim under the Lands Act.
8
We hold, however, that the 'prescriptive' nature of Art. 3536 does not undercut its applicability under the Lands Act. Under § 1333(a)(2) of the Act, '(s)tate law bec(omes) federal law federally enforced.' Rodrigue v. Aetna Casualty & Surety Co., supra, 395 U.S., at 365, 89 S.Ct., at 1842. It was the intent of Congress, expressed in the Senate Committee Report, in the Conference Report, and on the floor of the Senate, that state laws be 'adopted' or 'enacted' as federal law. See id., at 357—358, 89 S.Ct., at 1838. Thus a federal court applying Louisiana law under § 1333(a)(2) of the Lands Act is applying it as federal law—as the law of the federal forum. Since the federal courts is not, then, applying the law of another forum in the usual sense, ordinary conflict of laws principles have no relevance. Article 3536 is 'applicable' in federal court under the Lands Act just as it would be applicable in a Louisiana court.5
9
The policies underlying the federal absorption of state law in the Lands Act make this result particularly obvious. As we pointed out in Rodrigue, Congress recognized that 'the Federal Code was never designed to be a complete body of law in and of itself' and thus that a comprehensive body of state law was needed. Id., at 358, 361, 89 S.Ct., at 1838—1840. Congress also recognized that the 'special relationship between the men working on these artificial islands and the adjacent shore to which they commute' favored application of state law with which these men and their attorneys would be familiar. Id., at 365, 89 S.Ct., at 1842; see id., at 363, 89 S.Ct., at 1841. If Congress' goal was to provide a comprehensive and familiar body of law, it would defeat that goal to apply only certain aspects of a state personal injury remedy in federal court. A state time limitation upon a remedy is coordinated with the substance of the remedy and is no less applicable under the Lands Act.6
10
The application of Louisiana's Art. 3536 is, of course, subject to the absence of 'inconsistent' and applicable federal law. The Court of Appeals acknowledged that Rodrigue forecloses direct applicability of the 'inconsistent' laches doctrine through admiralty law. But, by applying laches as a matter of federal common law, it sought to reintroduce the doctrine through a back door.7 This approach subverts the congressional intent documented in Rodrigue, id., at 359—366, 89 S.Ct., at 1839—1842, that admiralty doctrines should not apply under the Lands Act.
11
Moreover, the Court of Appeals' approach amounts to an inappropriate creation of federal common law. Even when a federal statute creates a wholly federal right but specifies no particular statute of limitations to govern actions under the right, the general rule is to apply the state statute of limitations for analogous types of actions. See International Union, United Auto, Aerospace and Agr. Implement Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192; Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602; Campbell v. City of Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280; Note, Federal Statutes Without Limitations Provisions, 53 Col.L.Rev. 68 (1953). A special federal statute of limitations is created, as a matter of federal common law, only when the need for uniformity is particularly great or when the nature of the federal right demands a particular sort of statute of limitations. See Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743; McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272. But, under the Lands Act, there is not even such limited freedom to create a federal statute of limitations, for Congress specified that a comprehensive body of state law should be adopted by the federal courts in the absence of existing federal law. Congress specifically rejected national uniformity and specifically provided for the application of state remedies which demand state, not federal, statutes of limitation. Thus, Congress made clear provision for filling in the 'gaps' in federal law; it did not intend that federal courts fill in those 'gaps' themselves by creating new federal common law.8
II
12
Although we hold that Louisiana's one-year statute of limitations must be applied under the Lands Act as interpreted in Rodrigue, we do not blind ourselves to the fact that this is, in relevant respect, a pre-Rodrigue case. The respondent's injury occurred more than three years before the announcement of our decision in Rodrigue. He instituted the present lawsuit more than one year before Rodrigue. Yet, if the Louisiana statute of limitations controls in this case, his action was time barred more than two years before Rodrigue. In these circumstances, we must consider the respondent's argument that the state statute of limitations should be given nonretroactive application under Rodrigue.
13
In recent years, the nonretroactive application of judicial decisions has been most conspicuously considered in the area of the criminal process. E.g., Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404; Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484; Desist v. United States, 394 U.S. 244, 89 S.Ct. 1048, 22 L.Ed.2d 248; Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601. But the problem is by no means limited to that area. The earliest instances of nonretroactivity in the decisions of this Court—more than a century ago—came in cases of nonconstitutional, noncriminal state law. E.g., Gelpcke v. City of Dubuque, 1 Wall. 175, 17 L.Ed. 520; Havemeyer v. Iowa County, 3 Wall. 294, 18 L.Ed. 38; Railroad Co. v. McClure, 10 Wall. 511, 19 L.Ed. 997.9 It was in a noncriminal case that we first held that a state court may apply its decisions prospectively. Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360. And, in the last few decades, we have recognized the doctrine of nonretractivity outside the criminal area many times, in both constitutional and nonconstitutional cases. Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647; Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1; Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231; Simpson v. Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98; England v. State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440; Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329.
14
In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, see e.g., Hanover Shoe, Inc. v. United Shoe Machinery Corp., supra, 392 U.S., at 496, 88 S.Ct., at 2233, or by deciding an issue of first impression whose resolution was not clearly foreshadowed, see, e.g., Allen v. State Board of Elections, supra, 393 U.S., at 572, 89 S.Ct., at 835. Second, it has been stressed that 'we must * * * weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.' Linkletter v. Walker, supra, 381 U.S., at 629, 85 S.Ct., at 1738. Finally, we have weighed the inequity imposed by retroactive application, for '(w)here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the 'injustice or hardship' by a holding of nonretroactivity.' Cipriano v. City of Houma, supra, 395 U.S., at 706, 89 S.Ct., at 1900.
15
Upon consideration of each of these factors, we conclude that the Louisiana one-year statute of limitations should not be applied retroactively in the present case. Rodrigue was not only a case of first impression in this Court under the Lands Act, but it also effectively overruled a long line of decisions by the Court of Appeals for the Fifth Circuit holding that admiralty law, including the doctrine of laches, applies through the Lands Act. See, e.g., Pure Oil Co. v. Snipes, 293 F.2d 60; Movible Offshore Co. v. Ousley, 346 F.2d 870; Loffland Bros. Co. v. Roberts, 386 F.2d 540. When the respondent was injured, for the next two years until he instituted his lawsuit, and for the ensuing year of pretrial proceedings, these Court of Appeals decisions represented the law governing his case. It cannot be assumed that he did or could foresee that this consistent interpretation of the Lands Act would be overturned. The most the could do was to rely on the law as it then was. 'We should not indulge in the fiction that the law now announced has always been the law and, therefore, that those who did not avail themselves of it waived their rights.' Griffin v. Illinois, 351 U.S. 12, 26, 76 S.Ct. 585, 594, 100 L.Ed. 891 (Frankfurter, J., concurring in judgment).
16
To told that the respondent's lawsuit is retroactively time barred would be anomalous indeed. A primary purpose underlying the absorption of state law as federal law in the Lands Act was to aid injured employees by affording them comprehensive and familiar remedies. Rodrigue v. Aetna Casualty & Surety Co., supra, 395 U.S., at 361, 365, 89 S.Ct., at 1840, 1842. Yet retroactive application of the Louisiana statute of limitations to this case would deprive the respondent of any remedy whatsoever on the basis of superseding legal doctrine that was quite unforeseeable. To abruptly terminate this lawsuit that has proceeded through lengthy and, no doubt, costly discovery stages for a year would surely be inimical to the beneficent purpose of the Congress.
17
It would also produce the most 'substantial inequitable results,' Cipriano v. City of Houma, supra, 395 U.S., at 706, 89 S.Ct., at 1900, to hold that the respondent 'slept on his rights' at a time when he could not have known the time limitation that the law imposed upon him. In Cipriano v. City of Houma, supra, we invoked the doctrine of nonretroactive application to protect property interests of 'cities, bondholders, and others connected with municipal utilities'; and, in Allen v. State Board of Elections, supra, we invoked the doctrine to protect elections held under possibly discriminatory voting laws. Certainly, the respondent's potential redress for his allegedly serious injury—an injury that may significantly undercut his future earning power—is entitled to similar protection. As in England v. State Board of Medical Examiners, supra, nonretroactive application here simply preserves his right to a day in court.10
18
Both a devotion to the underlying purpose of the Lands Act's absorption of state law and a weighing of the equities requires nonretroactive application of the state statute of limitations here. Accordingly, although holding that the opinion of the Court of Appeals reflects a misapprehension of Rodrigue, we affirm its judgment remanding this case to the trial court. It is so ordered.
19
Affirmed.
20
Mr. Justice DOUGLAS.
21
Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360, does not, with all respect, require reversal in this case. Accordingly, I would affirm the judgment of the Court of Appeals without reaching the question of the retroactivity of Rodrigue.
22
Rodrigue, like the present case, arose under the Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U.S.C. § 1331 et seq. That Act created a federal cause of action for offshore injuries enforceable in the federal courts, but made state laws applicable. 43 U.S.C. § 1333(a)(2).
23
In Rodrigue, La.Civ.Code Ann., Art. 2315 (1970) was relevant, which provides in part: 'The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased * * *.'
24
In the present case Art. 3536 of the Code is applicable and it reads: 'The following actions are also prescribed by one year:
25
'That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses.'
26
The latter limitation is 'prescriptive' only, i.e., that while the Louisiana remedy is barred, the right is not. Under Art. 3536, the limitation runs only to the remedy and would not be applicable in another forum applying the substantive right. Istre v. Diamond M. Drilling Co., 226 So.2d 779, 794—799 (La.App.1969). Respondent, therefore, argues that the federal doctrine of laches is the only limitation upon his right of recovery and that it is inapplicable where, as here, there is no prejudice to the defendant and any delay in filing the lawsuit was reasonably excusable. See, e.g., Akers v. State Marine Lines, 5 Cir., 344 F.2d 217.
27
The Louisiana courts consider the distinction between peremptive and prescriptive limitations important;1 and by reason of the federal statute, making Louisiana law applicable, federal courts are bound by the distinction. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492. As stated in Rodrigue the federal Act 'supplemented gaps in the federal law with state law through the 'adoption of State law as the law of the United States." 395 U.S., at 357, 89 S.Ct., at 1838.
28
In Rodrigue—an action for wrongful death—the right is extinguished, if the action for recovery is not brought within a year of the death. Kenney v. Trinidad Corp., 5 Cir., 349 F.2d 832; Mejia v. United States, 5 Cir., 152 F.2d 686. Under Art. 3536 which governs here—Louisiana law holds that it is merely a 'procedural restraint which bars the remedy, but does not extinguish the right.' Fidelity & Casualty Co. v. C/B Mr. Kim, 345 F.2d 45, 50 (CA5 1965). See also Page v. Cameron Iron Works, 259 F.2d 420, 422 (CA5 1958); Jackson v. Continental Southern Lines, 172 F.Supp. 809 (W.D.Ark.1959); Succession of Pizzillo, 223 La. 328, 65 So.2d 783 (1953); Devoe & Reynolds Co. v. Robinson, 109 So.2d 226 (La.App.1959).
29
A district court, sitting in diversity jurisdiction in Arkansas, applied these principles of Louisiana law and held properly in my mind—that Art. 3536 did not bar an action filed more than one year after the injury complained of. Jackson v. Continental Southern Lines, supra. See also Page v. Cameron Iron Works, supra. That decision is in perfect harmony with long-established rules of conflict of laws.2 A different result should not obtain here where federal jurisdiction, 43 U.S.C. § 1333, flows from a head other than diversity.
30
Apart from traditional conflict of laws is, the congressional mandate to apply state laws to these federal causes of action. If we are faithfully to apply the state law of Louisiana we would apply here not the Louisiana peremption rule applied in Rodrigue but the Louisiana prescriptive rule applicable to the instant personal injury case.
31
Today's decision conflicts with Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319, where the District Court was enforcing in admiralty a state cause of action for wrongful death. Although procedural irregularities in the appointment of the administrator would have barred—under the state statute of limitations—an action in state court, we held that federal courts were free to formulate their own procedural rules. If we were to follow Levinson, we would not bind federal courts to state rules of procedure designed to have no application beyond the state forum for which they were created.3 Cf. Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S. 525, 533—539, 78 S.Ct. 893, 898 902, 2 L.Ed.2d 953; Angel v. Bullington, 330 U.S. 183, 192, 67 S.Ct. 657, 662, 91 L.Ed. 832; Atkins v. Schmutz Manufacturing Co., 435 F.2d 527 (CA4 1970); Note, 71 Col.L.Rev. 865 (1971).
32
Today's decision also conflicts with our decision in Richards v. United States, supra. There, the Federal Tort Claims Act referred us to the local law for a rule of decision, just as Rodrigue and the Lands Act do in the present case. We concluded that the Act 'require(d) application of the whole law of the State where the act or omission occurred,' 369 U.S., at 11, 82 S.Ct., at 582, including its conflict of laws decision.4 If we were to follow Richards and Rodrigue in the present case, we would apply Louisiana's prescriptive rule as it has been construed by Louisiana courts and not use it to bar an action in a different forum.
33
For in that other forum—here the federal district court Louisiana law allows the federal court, consistently with conflict of laws, to apply a different limitation than Louisiana would apply in her own courts.
In Rodrigue, we said:
34
'The purpose of the Lands Act was to define a body of law applicable to the seabed, the subsoil, and the fixed structures such as those in question here on the outer Continental Shelf. That this law was to be federal law of the United States, applying state law only as federal law and then only when not inconsistent with applicable federal law, is made clear by the language of the Act.' 395 U.S., at 355 356, 89 S.Ct., at 1837.
35
We then concluded: 'It is evident from this that federal law is 'exclusive' in its regulation of this area, and that state law is adopted only as surrogate federal law.' Id., at 357, 89 S.Ct., at 1838.
36
Since the federal court is not a Louisiana forum,5 the Louisiana law of prescription permits enforcement of this claim after Louisiana's one-year statute has run.6 Therefore, if we are to be faithful to the federal scheme we must apply Louisiana law; and Louisiana law would not apply Rodrigue in a personal injury case where the suit is not brought in a Louisiana forum.
37
The Court of Appeals, speaking through our leading admiralty authority, Judge Brown, so held and went on to rule that in harmony with Louisiana's prescriptive rule this personal injury suit was not barred under the laches doctrine familiar to maritime law.
38
This is not a stale claim and its assertion after the one-year period ran was not prejudicial; no prejudice was indeed pleaded. Cf. Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743.
39
One who reads this record will be impressed with the grave injustice of applying the Louisiana one-year statute as if it were peremptive, rather than prescriptive. Death comes with a finality lacking in some personal injury cases; and the rigid rule applied in Rodrigue can do no injustice. But personal injuries are often lingering and one may not know for months whether he is partially or permanetly crippled, whether he must be retrained for wholly different work, and so on. In this case it took some months after the injury for respondent (1) to realize that he could not return to his old work, and (2) to discover the kind of work he could do.
40
If we followed Louisiana law, as Congress directed, we would affirm the judgment of the Court of Appeals, reflecting as it does good law and a measure of justice not always allowable when the rigidity of Rodrigue governs a case.
1
See infra, at 107.
2
The decision of the District Court is unreported (E.D.La., Civil Action No. 68—19D).
3
The respondent has made the same argument to this Court.
4
The full text of § 1333(a)(1) and § 1333(a)(2) reads:
'(a)(1) The Constitution and laws and civil and political jurisdiction of the United States are extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands and fixed structures which may be erected thereon for the purpose of exploring for, developing, removing, and transporting resources therefrom, to the same extend as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State: Provided, however, That mineral leases on the outer Continental Shelf shall be maintained or issued only under the provisions of this subchapter.
'(2) To the extend that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations of the Secretary now in effect or hereafter adopted, the civil and criminal laws of each adjacent State as of August 7, 1953 are declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon, which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf, and the President shall determine and publish in the Federal Register such projected lines extending seaward and defining each such area. All of such applicable laws shall be administered and enforced by the appropriate officers and courts of the United States. State taxation laws shall not apply to the outer Continental Shelf.'
5
This is not to imply that a federal court adjudicating a claim under state law as absorbed in the Lands Act must function as it would in a diversity case. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079; Levinson v. Deupree, 345 U.S. 648, 651, 73 S.Ct. 914, 916, 97 L.Ed. 1319. We hold only that the state statute of limitations is part of the law to be applied in federal court as it would be part of the law to be applied in a state court.
6
Here we are not dealing with mere 'housekeeping rules' embodied in state law. Cf. Hanna v. Plumer, 380 U.S. 460, 473, 85 S.Ct. 1136, 1145, 14 L.Ed.2d 8.
7
The Court of Appeals justified its creation of federal common law in this instance by suggesting that personal injury actions under the Lands Act are in a 'quasi maritime area which is traditionally imbued with the laches doctrine and which presents a strong federal urge toward uniformity.' 430 F.2d, at 32.
8
Contrary to the suggestion by Mr. Justice Douglas, our holding today is consonant with Levinson v. Deupree, supra, n. 5. Since Levinson involved a federal court's obligation to adopt state procedural rules in an admiralty action, it has very limited relevance to the instant case, which involves an action under a statute which ousts admiralty law and specifically directs that state law shall be adopted as federal law. Moreover, Levinson held only that state 'procedural niceties relating to amendments of pleadings' need not be applied by federal admiralty courts, and the opinion emphasized that it was not dealing with an important part of the state action, such as a statute of limitations. 345 U.S., at 651—652, 73 S.Ct., at 916. As pointed out above, our holding today does not extend to such state 'housekeeping rules.' See n. 6, supra.
Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492, also referred to by Mr. Justice Douglas, held that, under the Federal Tort Claims Act, a federal court must apply 'the whole law of the State where the act or omission occurred.' Id., at 11, 82 S.Ct., at 592. Insofar as Richards bears on the present case, it supports our holding that federal courts should not create interstitial federal common law when the Congress has directed that a whole body of state law shall apply.
9
These cases were decided in the era before Erie R. Co. v. Tompkins, supra, n. 5. The first case involving non-retroactive application of state law concerned interpretation of the Mississippi Constitution. Rowan v. Runnels, 5 How. 134, 12 L.Ed. 85.
10
We do not hold here that Rodrigue, in its entirety, must be applied nonretroactively. Rather, we hold only that state statutes of limitations, applicable under Rodrigue's interpretation of the Lands Act, should not be applied retroactively. Retroactive application of all state substantive remedies under Rodrigue would not work a comparable hardship or be so inconsistent with the purpose of the Lands Act.
1
Guillory v. Avoyelles R. Co., 104 La. 11, 15, 28 So. 899, 901 (1900):
'When a statute creates a right of action and stipulates the delay within which that right is to be executed, the delay thus fixed is not, properly speaking, one of prescription, but it is one of peremption.
'Statutes of prescription simply bar the remedy. Statutes of peremption destroy the cause of action itself. That is to say, after the limit of time expires the cause of action no longer exists; it is lost.'
2
G. Stumberg, Principles of Conflict of Laws 146—147 (3d ed. 1963):
'The traditional reaction in Conflict of Laws * * * has been that ordinarily limitation is procedural. This view was taken by the Dutch jurists, and where the question arises out of a general statute, it is the view generally accepted by Anglo-American courts. The result is that in the absence of a statute to the contrary in most jurisdictions, when the claim is based upon foreign facts, even though the foreign period of limitation has not run, the plaintiff may not recover if the time allowed for suit at the forum has expired. Conversely, if the foreign period has expired, suit may nevertheless be brought at the forum if the time specified there has not run.' (Footnotes omitted.)
Accord, Restatement of Conflict of Laws §§ 603—604 (1934): Restatement (Second) of Conflict of Laws §§ 142, 143 (1971); 3 J. Beale, Conflict of Laws § 584.1 (1935); B. Currie, Conflict of Laws 232—234, 255 (1963); A. Ehrenzweig, Conflict of Laws 428—436 (1962); H. Goodrich, Conflict of Laws 267 (4th ed. 1964); Ailes, Limitation of Actions and the Conflict of Laws, 31 Mich.L.Rev. 474 (1933); Comment, The Statute of Limitations and the Conflict of Laws, 28 Yale L.J. 492 (1919).
While still sitting on the Court of Appeals for the Second Circuit, Mr. Justice Harlan said:
'In actions where the rights of the parties are grounded upon the law of jurisdictions other than the forum, it is a well-settled conflict-of-laws rule that the forum will apply the foreign substantive law, but will follow its own rules of procedure.' Bournias v. Atlantic Maritime Co., 220 F.2d 152, 154 (CA2 1955).
Mr. Justice Harlan went on to hold that a Panamanian statute of limitations was not applicable where a Panamanian statutory right was being enforced under the admiralty jurisdiction of the Federal District Court.
3
The majority supports its limitation on actions by saying that 'we are not dealing with mere 'housekeeping rules' embodied in state law. Cf. Hanna v. Plumer, 380 U.S. 460, 473, 85 S.Ct. 1136, 1145, 14 L.Ed.2d 8.' Ante, at 103 n. 6. This conclusion, however, is directly contrary to the characterization given the prescriptive limitation by Louisiana courts:
'* * * It is conceded by the five defendants-appellees that had plaintiff filed this suit in the federal court, the doctrine of laches would apply. The cases cited by plaintiff * * * were filed in the federal forum and are distinguished on this basis.
'But plaintiff chose the State forum. Plaintiff may have preferred some procedural advantages afforded in the State court, such as: agreement of only nine of twelve jurors needed; ability to call under cross-examination any employee of a party as opposed to the federal rule wherein the right to call witnesses under cross-examination is limited to executive or top supervisory personnel; no procedural vehicle provided for directed verdict or judgment n.o.v. in State court; or shorter delay in State court between filing petition and trial. Having chosen the State forum, he is bound by State procedural rules. The argument that uniformity requires us to import the Federal procedural law of laches rather than use the Louisiana procedural law of prescription, is unacceptable. If we adopt the federal procedural rule in this instance, it would logically follow that more Louisiana procedural rules will, for the same reason, be abandoned in the future. We hold that our State courts are bound to apply State procedural rules.' Istre v. Diamond M. Drilling Co., supra, 226 So.2d, at 794.
The court then concluded. 'The applicable Louisiana prescription statute, LSA—C.C. Art. 3536, is procedural.' Id., at 794—795.
4
The majority would limit Richards' reasoning 'that federal courts should not create interstitial federal common law when the Congress has directed that a whole body of state law shall apply.' Ante, at 105 n. 8. It is precisely because we must apply the 'whole body' of state law, however, that we should apply the Louisiana interpretation of that law and not use the prescriptive rule to bar an action in a federal forum. H. Hart & H. Wechsler, The Federal Courts and the Federal System 456—457 (1953).
5
The majority acknowledges that the federal court still retains its identity as a federal forum when it indicates that it is not to 'function as it would in a diversity case,' ante, at 103 n. 5, and that only certain state rules are adopted, ante, at 103 n. 6.
6
O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980, does not require a contrary result because there we considered only whether Art. 3536 could be applied to a federal action in a federal court and not how it should be applied. Petitioner conceded that his action was barred if Art. 3536 applied and 'the sole question pressed by counsel and which we (were) called upon to decide (was) the application of the state statute to the conceded (federal) cause of action.' Id., at 321, 34 S.Ct., at 597.
| 78
|
404 U.S. 138
92 S.Ct. 373
30 L.Ed.2d 328
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.NASH-FINCH COMPANY, dba Jack and Jill Stores.
No. 70—93.
Argued Oct. 19, 1971
Decided Dec. 8, 1971.
Syllabus
A union which had begun organizing respondent company's employees charged the company with unfair labor practices. The General Counsel of the National Labor Relations Board (NLRB) issued a complaint, whiuch a Trial Examiner sustained, recommending that respondent be ordered to cease and desist from such practices. Before the NLRB acted, the union picketed respondent's stores and respondent, contending that the union's action violated state law, sought and obtained an injunction from a state court limiting the union's picketing activities. Subsequently the NLRB issued an order accepting the Trial Examiner's recommendations and then brought this action in District Court to restrain enforcement of the state court injunction on the ground that it regulated conduct governed exclusively by the National Labor Relations Act. The District Court held that it was precluded from granting relief by 28 U.S.C. § 2283, which prohibits a federal court from enjoining state court proceedings except as authorized by Act of Congress 'or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.' The court rejected the contention that the NLRB was within the exception recognized in Leiter Minerals, Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267, for suits brought by the United States. The Court of Appeals affirmed, holding that for purposes of § 2283, the NLRB is 'an administrative agency of the United States, and is not the United States.' Held:
1. Since the action here does not seek to restrain unfair labor practices against which the NLRB had issued its complaint but is based on the general doctrien of pre-emption, the exception in § 2283 for matters 'necessary in aid of its jurisdiction' is inapplicable. Capital Service, Inc. v. National Labor Relations Board, 347 U.S. 501, 74 S.Ct. 699, 98 L.Ed. 887 distinguished. P. 141—142.
2. For the purpose of preventing frustration of the National Labor Relations Act, the NLRB has an implied authority to obtain a federal injunction against state court action pre-empted by the Act; such an injunction falls within the exception to § 2283 recognized in Leiter Minerals, Inc. supra, for suits brought by the United States, and the fact that the party moving for an injunction is a federal agency and not the Attorney General is irrelevant. Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892. Pp. 142—148.
434 F.2d 971, reversed and remanded.
Lawrence G. Wallace, Washington, D.C., for petitioner.
William A. Harding, Lincoln, Neb., for respondent, pro hac vice, by special leave of Court.
Mr. Justice DOUGLAS delivered the opinion of the Court.
Title 28 U.S.C. § 2283 provides:
1
'A court of the United States 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.'
2
The question is whether the National Labor Relations Board may, through proceedings in a federal court, enjoin a state court order which regulates peaceful picketing governed by the federal agency. The District Court, 320 F.Supp. 858, rejected the Board's contention that it is within the exception to § 2283,1 recognized in Leiter Minerals, Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267, as respects suits brought by the United States. The Court of Appeals affirmed. 434 F.2d 971. The case is here on a petition for a writ of certiorari which we granted, 402 U.S. 928, 91 S.Ct. 1524, 28 L.Ed.2d 862.
3
When a union began organizing employees of certain stores in Grand Island, Nebraska, the union filed unfair labor practice charges against the company. The General Counsel issued a complaint. A hearing was held and a Trial Examiner sustained the complaint and recommended that the company cease and desist. Shortly thereafter and before the Board had acted, the union picketed the stores. The company thereupon petitioned the Nebraska state court for an injunction. The state court issued a restraining order, limiting the pickets to two at each store, enjoining them from blocking or picketing entrances or exits and from distributing literature pertaining to the dispute which would halt or slow traffic, from instigating conversations with customers in any manner relating to the dispute, from mass picketing, from acts of physical coercion against persons driving to work, and from doing any act in violation of Neb.Rev.Stat. § 28 812, which makes unlawful 'loitering about, picketing or patrolling the place of work * * * against the will of such person.' The injunction also bans anyone other than a bona fide union member from picketing unless he become a defendant in the state proceedings. Finally, the injunction bars anyone, other than pickets and named defendants, from picketing, distributing handbills, or otherwise 'caus(ing) to be published or broadcast any information pertaining to the dispute * * * between the parties.'
4
Later the Board entered its decision and order accepting in part the Trial Examiner's recommendations and rejecting parts not material to the present controversy.
5
The Board then filed this suit in the Federal District Court seeking to restrain the enforcement of the state court injunction on the ground that it regulated conduct which was governed exclusively by the National Labor Relations Act. As noted, both the District Court and the Court of Appeals denied the Board relief. The Court of Appeals held that for the purposes of § 2283 the Board is 'an administrative agency of the United States, and is not the United States.' 434 F.2d, at 975. Congress from the beginning has restricted the authority of the federal judiciary to interfere with state court actions. See Younger v. Harris, 401 U.S. 37, 43—44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669. The present § 2283 is a revision of earlier provisions of federal statutes which were construed to allow within limits such federal injunctions in favor of federal agencies. Bowles v. Willingham, 321 U.S. 503, 510, 64 S.Ct. 641, 645, 88 L.Ed. 892. Any exception in favor of federal agencies must, however, be 'implied,' ibid., unless it comes within the exceptions stated in § 2283.
6
It is suggested that this federal injunction was 'in aid' of the jurisdiction of the federal court since the suit is in the District Court by reason of 28 U.S.C. § 1337 which grants jurisdiction over 'any civil action or proceeding arising under any Act of Congress regulating commerce.' In Capital Service, Inc. v. National Labor Relations Board, 347 U.S. 501, 74 S.Ct. 699, 98 L.Ed. 887, an employer invoked the aid both of a state court and of the federal Board against picketing. The Board sought a federal court injunction under § 10(l) of the Act, 29 U.S.C. § 160(l), which specifically allows it wherever an unfair labor practice respecting a secondary boycott or picketing violative of § 8(b) (4) or § 8(b)(7) of the Act is involved. We ruled that the state injunction 'restrains conduct which the District Court was asked to enjoin in the § 10(l) proceding.' Id., at 505, 74 S.Ct., at 702. We held that under those circumstances an injunction by the federal court was 'necessary in aid of its jurisdiction' over commerce, because the federal court to exercise its jurisdiction 'freely and fully' must 'first remove the state decree.' Id., at 506, 74 S.Ct., at 703.
7
In the instant case the company did not file any charges with the Board which claimed that the union's picketing violated § 8(b)(4) or § 8(b)(7) of the Act, 73 Stat. 542 and 544, 29 U.S.C. § 158(b)(4) and § 158(b)(7).
8
Section 10(j) gives the District Court similar authority in respect of an unfair labor practice of the employer under § 8(a)(1) of the Act which protects the right of employees to organize. But a resort to court action, the Board has held, does not violate § 8(a)(1). See Clyde Taylor Co., 127 N.L.R.B. 103, 109.
9
The action in the instant case does not seek an injunction to restrain specific activities upon which the Board has issued a complaint but is based upon the general doctrine of pre-emption. We therefore do not believe this case falls within the narrow exception contained in § 2283 for matter 'necessary in aid of its jurisdiction.' There is in the Act no express authority for the Board to seek injunctive relief against pre-empted state action. The question remains whether there is implied authority to do so.
10
It has long been held that the Board, though not granted express statutory remedies, may obtain appropriate and traditional ones to prevent frustration of the purposes of the Act. We held in In re National Labor Relations Board, 304 U.S. 486, 496, 58 S.Ct. 1001, 1006, 82 L.Ed. 1482, that even in the absence of an express statutory remedy, the Board might petition for writ of prohibition against premature invocation of the review jurisdiction of the Court of Appeals. In amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738, we held that the Board had implied authority to institute contempt proceedings for violation of court decrees enforcing orders of the Board. In Nathanson v. National Labor Relations Board, 344 U.S. 25, 73 S.Ct. 80, 97 L.Ed. 23, we found an implied authority of the Board to file claims in bankruptcy covering the sums included in its back-pay awards. The claims were not given priority under § 64(a)(5) of the Bankruptcy Act, but this was because 'the United States (was) collecting for the benefit of a private party,' id., at 28, 73 S.Ct., at 82, not as suggested, post, at 28, because the Board's juridical status was something less than that of the United States.2
11
We conclude that there is also an implied authority of the Board, in spite of the command of § 2283, to enjoin state action where its federal power preempts the field. Our starting point is contained in the observation of Mr. Chief Justice Hughes in Amalgamated Utility Workers v. Consolidated Edison Co., supra, at 265, 60 S.Ct., at 563:
12
'The Board as a public agency acting in the public interest, not any private person or group, not any employee or group of employees, is chosen as the instrument to assure protection from the described unfair conduct in order to remove obstructions to interstate commerce.'
13
The purpose of the Act was to obtain 'uniform application' of its substantive rules and to avoid the 'diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.' Garner v. Teamsters Chauffeurs and Helpers Local Union, 346 U.S. 485, 490, 74 S.Ct. 161, 166, 98 L.Ed. 228. The federal regulatory scheme (1) protects some activities, though not violence (see United Mine Workers of America v. Gibbs, 383 U.S. 715, 729—731, 86 S.Ct. 1130, 16 L.Ed.2d 218), (2) prohibits some practices, and (3) leaves others to be controlled by the free play of economic forces. We said in Garner v. Teamsters Chauffeurs and Helpers Local Union, supra, at 500, 74 S.Ct., at 171
14
'For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act prohibits.'
15
In Leiter Minerals, Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267, a state suit over mineral rights in public lands was pending, the parties being private persons. The United States brought suit in the federal court to quiet title to the mineral rights and sought and obtained a federal injunction against prosecution of the state proceedings. In holding that § 2283 impliedly allowed such an exception we said:
16
'The statute is designed to prevent conflict between federal and state courts. This policy is much more compelling when it is the litigation of private parties which threatens to draw the two judicial systems into conflict than when it is the United States which seeks a stay to prevent threatened irreparable injury to a national interest. The frustration of superior federal interests that would ensue from precluding the Federal Government from obtaining a stay of state court proceedings except under the severe restrictions of 28 U.S.C. § 2283 would be so great that we cannot reasonably impute such a purpose to Congress from the general language of 28 U.S.C. § 2283 alone.' Id., at 225—226, 77 S.Ct., at 290—291.
17
In Leiter, the United States brought suit under the authority of the Attorney General. Here it is the Board that moved to prevent 'irreparable injury to a national interest.' The Board is the sole protector of the 'national interest'3 defined with particularity in the Act. Leiter, of course, was initiated by the Attorney General; but underlying the controversy were federal agencies in the Department of the Interior responsible for administration of the public lands. The fact that the moving party was a federal agency, not the Attorney General, was considered irrelevant in Bowles v. Willingham, supra, where the Administrator of the Emergency Price Control Act sued to enjoin a state court from interfering with orders of the federal agency. An exception from the general ban on federal injunctions against state court action was implied by reason of the fact that the method of review of the orders of the federal agency was in the Emergency Court of Appeals. But there was no suggestion that suit by or against the Administrator was not a suit of the United States.4 The purpose of § 2283 was to avoid unseemly conflict between the state and the federal courts where the litigants were private persons, not to hamstring the Federal Government and its agencies in the use of federal courts to protect federal rights. We can no more conclude here than in Leiter that a general statute, limiting the power of federal courts to issue injunctions, had as its purpose of frustration of federal systems of regulation. See Brown v. Wright, 4 Cir., 137 F.2d 484, 488. The frustration of superior federal interests by the general language of § 2283 cannot reasonably be imputed. See National Labor Relations Board v. Sunshine Mining Co., 9 Cir., 125 F.2d 757, 762; National Labor Relations Board v. New York State Labor Relations Board, D.C., 106 F. Supp. 749, 752; National Labor Relations Board v. Industrial Commission, D.C., 84 F.Supp. 593, aff'd, 172 F.2d 389.
18
The fact that the Board is given express authority to seek enforcement of its orders in some sections of the Act5 is not persuasive that the Act expresses a policy to bar the Board from enforcing the national interests on other matters. The instances where the Board is given explicit authority to seek the aid of federal courts are not exclusive examples, as we have already shown. They are only particularized instances of specific enforcement devices relating to specified orders, not a denial by implication that the Act and the Board would not be entitled to federal aid or protection in other instances, as illustrated by In re National Labor Relations Board, supra; Amalgamated Workers v. Edison Co., supra; and Nathanson v. National Labor Relations Board, supra. The exclusiveness of the federal domain is clear; and where it is a public authority that seeks protection of that domain, the way seems clear. For the Federal Government and its agencies, the federal courts are the forum of choice. For them, as Leiter indicates, access to the federal courts is 'preferable in the context of healthy federal-state relations.' 352 U.S., at 226, 77 S.Ct., at 291.
19
Whether there are parts of the state court injunction that should survive our reversal of the judgment below is a question we do not reach. It will be open on the remand of the cause.
20
Reversed and remanded.
21
Mr. Justice WHITE, dissenting.
22
* The National Labor Relations Board here sues in federal court to enjoin the enforcement of a state court injunction against picketing.1 Title 28 U.S.C. § 2283 bars such injunctions except in specified situations. One exception permits injunctions by a federal court which are 'necessary in aid of its jurisdiction.' The majority rightfully concedes that this exception is inapplicable here. A state court injunction in no way interferes with the Board's admitted power to prevent unfair labor practices or to secure federal injunctions in those situations specifically identified by Congress. Capital Service, Inc. v. National Labor Relations Board, 347 U.S. 501, 74 S.Ct. 699, 98 L.Ed. 887 (1954), amply protects the Board's power to enjoin state court proceedings where an unfair labor practice is in progress and the jurisdiction of a federal court might later be invoked, but no such Board adjudication was occurring here concerning the picketing. Capital Service is not controlling.
23
Leiter Minerals, Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957), held that the restrictions of § 2283 do not apply to the Federal Government. The Board identifies itself with the United States and therefore asserts that § 2283 is inapplicable to it. I cannot agree. The juridical status of the Board is not perfectly congruent with that of the United States. For example, although it may file claims for back pay in bankruptcy proceedings, it does not enjoy the priority accorded to debts owing to the United States. Nathanson v. National Labor Relations Board, 344 U.S. 25, 73 S.Ct. 80, 97 L.Ed. 23 (1952).2 Leiter Minerals had nothing to do with the circumstances in which an agency such as the NLRB should be treated as the United States; nor does that case purport to modify the rule of Reconstruction Finance Corp. v. J. G. Menihan Corp., 312 U.S. 81, 85, 61 S.Ct. 485, 487, 85 L.Ed. 595 (1941), that the intention of Congress to bestow the privileges and immunities of the United States on a federal agency must be clearly manifest.3 The authority of the Federal Government to secure an injunction in Leiter Minerals was implied under the judicial rule that a statute that divests pre-existing rights or privileges will not be applied to the sovereign in the absence of explicit language. 352 U.S., at 224, 77 S.Ct., at 290. In the instant case, however, we deal with a statutorily defined agency creaed after the passage of § 2283 and possessing certain specified injunctive powers. The Board can claim no residual sovereignty such as that which was held in United States v. United Mine Workers, 330 U.S. 258, 272—273, 67 S.Ct. 677, 685 686, 91 L.Ed. 884 (1947), to exempt the United States Government from the restrictions of the Norris-LaGuardia Act, and by a familiar rule of statutory construction, the enumeration of its injunctive powers should be held to preclude the existence of other powers.4 In light of the congressional disinclination to authorize anything more than extremely limited interferences with state court proceedings by federal courts, and in view of this Court's reluctance to approve such interference by way of the equitable powers of federal courts, Younger v. Harris, 401 U.S. 37, 43—45, 91 S.Ct. 746, 750—751, 27 L.Ed.2d 669 (1971); Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 286, 90 S.Ct. 1739, 1742, 26 L.Ed.2d 234 (1970), implicit exceptions from § 2283 are at best suspect.
24
Section 2283 clearly permits injunctions against state court proceedings if 'expressly authorized by Act of Congress.' There is no claim here that the injunction sought by the Board is expressly authorized by any statute. Indeed, it is admitted that express authorization is lacking, and we are asked to imply such power. The Court does so, but its holding ignores both the language and the traditional interpretation of § 2283 and is inconsistent with the regulatory scheme of the LMRA.
25
Section 8 of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, specifies unfair labor practices by employers and unions. Section 9 provides for Board determination of bargaining units and employee representatives. Section 10 specifies the procedures to be employed in preventing unfair labor practices prohibited by § 8. Two aspects of § 10 are critical here. First, the Board is not granted unqualified powers to enforce the Act. The statute conditions Board action against unfair labor practices upon the filing of a charge; it may not act on its own motion. The requirement is jurisdictional. Montgomery Ward & Co. v. National Labor Relations Board, 385 F.2d 760, 763 (CA8 1967); Texas Industries, Inc. v. National Labor Relations Board, 336 F.2d 128, 132 (CA5 1964); Int'l Union of Electrical, Radio & Machine Workers v. National Labor Relations Board, 110 U.S.App.D.C. 91, 94, 289 F.2d 757, 760 (1960); Consumers Power Co. v. National Labor Relations Board, 113 F.2d 38, 41—43 (CA6 1940); National Labor Relations Board v. Hopwood Retinning Co., 98 F.2d 97, 101 (CA2 1938); National Labor Relations Board v. National Licorice Co., 104 F.2d 655, 658 (CA2 1939), modified on other grounds, 309 U.S. 350, 60 S.Ct. 569, 84 L.Ed. 799 (1940); Douds v. Int'l Longshoremen's Assn., 147 F.Supp. 103, 108 (SDNY 1956), aff'd, 241 F.2d 278 (CA2 1957). See also National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 369, 60 S.Ct. 569, 579, 84 L.Ed. 799 (1940). The Board has no roving, unqualified power to prevent unfair labor practices or to enforce the provisions of § 7 declaring that employees shall have the right to organize, bargain collectively, and otherwise engage in concerted activities. In the case before us, no unfair labor practice charge arising out of the union's picketing has been filed, either by the union or by the employer. Yet the Board appeared in a federal court seeking an injunction seemingly aimed at protecting employee rights guaranteed by § 7.
26
Second, after a charge has been filed and an unfair labor practice complaint has been issued the Act grants the Board the power to seek 'appropriate temporary relief or restraining order' from the courts. § 10(j). Further, § 10(l) specifies in even greater detail the circumstances under which temporary injunctions may be secured when charges under §§ 8(b)(4)(A), 8(b)(4)(B), 8(b) (4)(C), 8(e), or 8(b)(7) have been filed with the Board. Sections 10(e) and 10(f) define the powers of the Board and the courts to issue injunctions in connection with enforcement of Board orders after unfair labor practices have been adjudicated by the Board. Nowhere in the statute is there a provision authorizing the Board to seek injunctions prior to the filing of unfair labor practices or the issuance of a complaint. Nowhere is the Board authorized to use the injunctive power to enforce § 7 rights, except in connection with adjudicating unfair practices. Congress specified the powers of the Board with some care, particularly its powers to seek injunctions. Manifestly, Congress was aware of its longstanding policy against indiscriminate injunctions in labor disputes; for in § 10(h) it exempted from the Norris-LaGuardia Act only those situations where the courts are 'granting appropriate temporary relief or a restraining order, or making and entering a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part an order of the Board as provided in this section * * *.' (Emphasis added.) On the floor of the Senate, Senator Smith answered the contention that the passage of § 10(l) would weaken the Norris-LaGuardia Act:
27
'The only comment I can make on that statment is that we were very careful in this bill to protect the injunctive process as it is protected in the Norris-LaGuardia Act, except in exceptional cases where the Government has to step in. In national paralysis cases we permit the Attorney General to step in, and in the boycott and jurisdictional strike cases we permit the National Labor Relations Board to step i(; and there is no other approach to the courts for injunction except in those two situations.' 93 Cong.Rec. 4283. (Emphasis added.)
28
In such a context, today's decision is improvident. As a statutory matter under the Labor Management Relations Act, the Board has no power to seek the injunction it now demands even absent the barriers established by § 2283. And under that section, it is error to clothe the agency with the exception applicable to the United States. When an agency of the United States, rather than the United States itself, is plaintiff in an injunction action, the specific exceptions to § 2283 should be deemed controlling, particularly that exception directing inquiry to whether the injunction is 'expressly authorized by Act of Congress.' Here it is plain to me that the Board has no such power as it now claims to have, and I would affirm the judgment below.
II
29
A few additional words are appropriate. Even if, contrary to my view, the Board has power to seek an injunction to prevent interference with § 7 rights absent an unfair labor practice charge, it should not be able to obtain equitable relief by the mere conclusory allegation that such rights are 'arguably' protected under the LMRA. Although § 7 rights must be interpreted according to federal law, 'Congress has not federalized the entire law of labor relations,' Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America v. Lockridge, 403 U.S. 274, 309, 91 S.Ct. 1909, 1929, 29 L.Ed.2d 473 (1971) (White, J., dissenting), nor has it wholly displaced state and federal courts in the administration of federal labor policy.
30
The employer in this case was subjected to picketing that it thought illegal and unprotected. It sought and was granted a state court injunction over protests that state judicial power was preempted by federal law and the exclusive jurisdiction of the NLRB. Rather than allowing the union to appeal the injunction through the state court system, and to this Court if necessary, as the union would ordinarily have to do, Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, supra, the Court today permits the Board to short-circuit that process by securing a federal injunction, solely upon allegations that the conduct of the union was arguably protected under federal law and was within the exclusive jurisdiction of the NLRB. The Board does not, however, intimate what provisions of the LMRA the union was violating in picketing this employer. It does not assert the existence or imminence of an unfair labor practice by either side in connection with the picketing. It suggests no way in which the employer could secure an adjudication of whether the union's conduct was protected under federal law. It does not indicate what 'superior federal interests' the state decree frustrated. Absent an unfair labor practice charge and complaint, the Board itself has no jurisdiction at all, let alone exclusive jurisdiction, to hold hearings and issue cease-and-desist orders to prevent interference with § 7 rights in situations like this.
31
Congress' swift overruling of the Court's decision in Guss v. Utah Labor Relations Bd., 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601 (1957), by passage of NLRA § 14(c), 73 Stat. 541, 29 U.S.C. § 164(c) should make the Court approach with great caution the creation of another 'vast no-man's land, subject to regulation by no agency or court.' Id., at 10, 77 S.Ct., at 603. The NLRA was not enacted in a void and its strictures presuppose a certain degree of state authority and regulation:
32
'A holding that the States were precluded from acting (to enforce their trespass laws against invasions of private property) would remove the backdrop of state law that provided the basis of congressional action but would leave intact the narrower restraint present in federal law through § 7 and would thereby artificially create a no-law area.' Taggart v. Weinacker's, Inc., 397 U.S. 223, 228, 90 S.Ct. 876, 878, 25 L.Ed.2d 240 (1970) (Burger, C.J., concurring) (emphasis in original).
33
The Board should not, therefore, be able to obtain an injunction by merely alleging that conduct is 'arguably protected' by the LMRA. This rationale for pre-empting the applicability of state law and the authority of state courts developed to protect the exclusive jurisdiction of the Board. Int'l Longshoremen's Assn., Local 1416 v. Ariadne Shipping Co., 397 U.S. 195, 201, 90 S.Ct. 872, 875, 25 L.Ed.2d 218 (1970) (White, J., concurring); Taggart v. Weinacker's, Inc., supra, at 227—228, 90 S.Ct., at 878 (Burger, C.J., concurring). Where the Board is itself not only unwilling but apparently powerless to move against the challenged conduct, this rationale is a species of federal overkill, pre-empting the field to protect nothing. Of course, federal law remains paramount in its own arena, but if the Board has power to enforce it in this situation, it should be required to prove its case before obtaining an injunction and should demonstrate that federal law has been violated and that equitable relief is necessary to prevent its frustration. An unwarranted and illogical lacuna in the legal regulation of labor-management relations should not be extended. The Board should not be entitled to an injunction against state court proceedings unless it persuades a federal court that the state decree is actually interfering with rights protected by federal law.
34
Mr. Justice BRENNAN would affirm the judgment of the Court of Appeals for the reasons stated in Part I of the dissenting opinion of Mr. Justice WHITE.
1
For the history of present § 2283 c. H.R.Rev.No.308, 80th Cong., 1st Sess., A181.
2
The basis of our decision in Nathanson was that '(t)he priority granted by (§ 64(a)(5), 11 U.S.C. § 104(a)(5)) * * * was designed 'to secure an adequate revenue to sustain the public burthens and discharge the public debts." 344 U.S., at 27—28, 73 S.Ct., at 82. Because there was 'no function * * * of assuring the public revenue' and '(t)he beneficiaries of the claims (were) private persons,' id., at 28, 73 S.Ct., at 82, we found it inappropriate to apply the priority for claims owing the United States and, instead, gave the claims the same 'treatment tha(t) other wage claims enjoy(ed).' Id., at 29, 73 S.Ct., at 83. The suggestion that Nathanson is a stronger case for equating the status of the Board to that of the United States disregards both the policies of the Bankruptcy Act upon which we relied in that decision and the federal pre-emption which inheres in the present case.
Cases such as Reconstruction Finance Corp. v. J. G. Menihan Corp., 312 U.S. 81, 61 S.Ct. 485, 85 L.Ed. 595, do not support a miserly interpretation of the Board's powers. There, we held that costs of litigation could be assessed against a corporation which Congress had launched into the commercial world with the power to 'sue and be sued.' Contrary to the dissent's assertion that the case turned on the failure of Congress to manifest an intent 'to bestow the privileges and immunities of the United States on a federal agency,' post, at 380, our decision there was based upon the grant of 'the unqualified authority to sue and be sued (which) placed petitioner upon an equal footing with private parties as to the usual incidents of suits in relation to the payment of costs and allownaces.' 312 U.S., at 85—86, 61 S.Ct., at 487.
3
Amalgamated Clothing Workers of America v. Richman, Bros. Co., 348 U.S. 511, 75 S.Ct. 452, 99 L.Ed. 600, held that a private party under the protection of the Board's order could not obtain injunctive relief in a federal court against an antipicketing order issued by a state court. And see Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234.
4
Actions against the National Labor Relations Board are dismissed on the ground that they are against a federal agency exercising a governmental regulatory function and so are suits against the United States, which cannot be sued without the consent of Congress. Clover Fork Coal Co. v. National Labor Relations Board, 6 Cir., 107 F.2d 1009. The same holds for the Atomic Energy Commission, Cotter Corp. v. Seaborg, 10 Cir., 370 F.2d 686; the Civil Service Commission, Soderman v. U.S. Civil Service Commission, 9 Cir., 313 F.2d 694; the Veterans Administration, Evans v. U.S. Veterans Admin. Hospital, 2 Cir., 391 F.2d 261; and the Securities and Exchange Commission, Holmes v. Eddy, 4 Cir., 341 F.2d 477. Similarly, an action by the Director General of Railroads was held to be on behalf of the United States and thus was not barred by the relevant statute of limitations. Davis v. Corona Coal Co., 265 U.S. 219, 44 S.Ct. 552, 68 L.Ed. 987.
5
Congress has vested the Board with broad powers to seek injunctive relief in the district courts. Section 10(l), 29 U.S.C. § 160(l), for example, gives the Board power to obtain an injunction where an investigation produces reasonable cause to believe that a charge of secondary boycott or illegal picketing activity is true. Section 10(j), 29 U.S.C. § 160(j), provides a similar basis of power for other unfair labor practices. 'In case of contumacy or refusal to obey a subpena issued to any person' during 'hearings and investigations, which, in the opinion of the Board, are necessary and proper for the exercise of (its) powers' under §§ 9 and 10, 29 U.S.C. §§ 159 and 160, the Board may seek injunctive relief from a district court requiring compliance. 29 U.S.C. § 161(2).
1
Although the Board had held an unfair labor practice hearing and had found the employer guilty of certain unfair labor practices while exonerating it of others, this proceeding is not relevant to the issues in the present case because it did not concern the union's picketing. The union had originally filed a complaint and an election petition with the Board, charging the employer with a refusal to bargain and with interfering with the employees' rights to organize. A complaint was issued, and a hearing held. The trial examiner on April 28, 1969, found the employer guilty of certain § 8(a)(1) and § 8(a)(5) unfair labor practices and entered a cease-and-desist order against certain activities of the employer. A month after the trial examiner's decision, the union began its picketing, and the employer then secured the state court injunction limiting the picketing that is at issue in this case. On August 29, 1969, the Board filed a complaint in federal district court seeking to restrain the employer from enforcing the state court injunction. On September 17, 1969, the Board reversed the decision of the trial examiner and held that the employer was not guilty of a § 8(a)(5) refusal to bargain nor of certain of the § 8(a)(1) violations the trial examiner had found, but it found the employer guilty of certain other § 8(a)(1) infractions and entered a limited cease-and-desist order. Although the picketing occurred contemporaneously with the § 8(a)(1) and § 8(a)(5) unfair labor practice proceeding, it was never an issue before the Board.
2
In Nathanson, as here, the Board was attempting to protect the § 7 rights of private parties. If anything, the situation in Nathanson was a much stronger one for equating the status of the Board to that of the United States, since there the Board was seeking to enforce a back pay award (by filing a proof of claim against the employer, who had become a bankrupt, and asserting that its back pay order was entitled to the priority of a debt owing the United States under § 64(a)(5) of the Bankruptcy Act, 11 U.S.C. § 104(a)(5)) which it had assessed after adjudicating the employer guilty of a § 8 unfair labor practice. The Board was thus clearly discharging a designated statutory function, as distinguished from the instant case where the Board's jurisdiction to evaluate the disputed picketing in an unfair labor practice proceeding is totally unclear. The Court held, however, that '(i)t does not follow that because the Board is an agency of the United States, any debt owed it is a debt owing the United States' under the Bankruptcy Act, 344 U.S., at 27, 73 S.Ct., at 82, and it disallowed the asserted priority on the ground that the function of the precedence given the United States under the Bankruptcy Act was to insure the collection of claims that had accrued to the fisc. The majority's attempt to distingush Nathanson is less than convincing.
3
Both Menihan and the present case present the question of whether a Governmental agency is clothed with a particular attribute of sovereignty: in Menihan, an exemption from payment of costs after unsuccessful litigation under Fed.Rule Civ.Proc. 54(d) which was afforded to 'the United States, its officers, and agencies * * * to the extent permitted by law,' in the present case, an implicit exemption from § 2283. The Court emphasized that because the doctrine of sovereign immunity gives the Government a privileged position, it has been 'appropriately confined,' 312 U.S., at 84, 61 S.Ct., at 486, and noted that 'the government does not become the conduit of its immunity in suits against its agents or instrumentalities merely because they do its work.' Ibid., quoting Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 388, 59 S.Ct. 516, 517, 83 L.Ed. 784 (1939). Since 'there is no presumption that the agent is clothed with sovereign immunity,' 312 U.S., at 85, 61 S.Ct., at 487,, the Court examined the statute establishing the RFC and concluded that there was no affirmative indication by Congress that it had meant to exempt the RFC from paying costs after it had lost a lawsuit.
4
This rule has been frequently recognized by the Court, United States v. De la Maza Arrendondo, 6 Pet. 691, 724, 8 L.Ed. 547 (1832); Kendall v. United States, 107 U.S. 123, 125, 2 S.Ct. 277, 278, 27 L.Ed. 437 (1883); Neuberger v. Commissioner of Internal Revenue, 311 U.S. 83, 88, 61 S.Ct. 97, 101, 85 L.Ed. 58 (1940).
| 910
|
404 U.S. 189
92 S.Ct. 410
30 L.Ed.2d 372
Jack L. MAYER, Appellant,v.CITY OF CHICAGO.
No. 70—5040.
Argued Oct. 14, 1971.
Decided Dec. 13, 1971.
Syllabus
Appellant was convicted on nonfelony charges of violating two city of Chicago ordinances and was sentenced to pay a fine of $250 on each offense. Desiring to appeal, he petitioned the trial court for a free trial transcript to support his appeal on the grounds of insufficient evidence and prosecutorial misconduct. Although the court found that he was indigent, it denied his application on the basis of an Illinois Supreme Court rule which provided for trial transcripts only in felony cases. Other rules provided alternatives to a transcript in the form of a 'Settled Statement' or an 'Agreed Statement of Facts.' Without resorting to either alternative, appellant moved for a free transcript in the State Supreme Court. The motion was denied. Held:
1. Although the State must afford the indigent defendant a trial "record of sufficient completeness' to permit proper consideration of (his) claims,' Draper v. Washington, 372 U.S. 487, 499, 83 S.Ct. 774, 781, 9 L.Ed.2d 899, it need not necessarily furnish a complete verbatim transcript, but may provide alternatives that accord effective appellate review. Pp. 193—195.
2. When the defendant's grounds for appeal, as here, make out a colorable need for a complete transcript, the State has the burden of showing that only a portion thereof or an 'alternative' will suffice for an effective appeal on those grounds. P. 195.
3. The distinction drawn by the State Supreme Court rule between felony and nonfelony offenses is an 'unreasoned distinction' proscribed by the Fourteenth Amendment. Pp. 195—196.
4. The fact that the charges on which the appellant was convicted were punishable by a fine rather than by confinement does not lessen the invidious discrimination against an indigent defendant. Pp. 196—198.
Vacated and remanded.
Henry F. Field, Chicago, Ill., for the appellant.
Richard L. Curry, Chicago, Ill., for the appellee.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
A jury in the Circuit Court of Cook County, Illinois, convicted appellant on nonfelony charges of disorderly conduct and interference with a police officer in violation of ordinances of the city of Chicago. He was sentenced to a $250 fine on each offense; violation of each ordinance carried a maximum penalty of $500. Desiring to appeal, he petitioned the Circuit Court for a free transcript of the proceedings of his trial to support his grounds of appeal that the evidence was insufficient for conviction and that misconduct of the prosecutor denied him a fair trial.1 The Circuit Court found that he was indigent, but denied his application, stating 'that defendant was found guilty of ordinance violations and * * * rule 607 of the Supreme Court applies to felony cases.' The reference was to Illinois Supreme Court Rule 607(b), which in pertinent part provided: 'In any case in which the defendant is convicted of a felony, he may petition the court in which he was convicted for a report of proceedings at his trial.'2 (Emphasis supplied.) Other Illinois Supreme Court rules, Rules 323(c) and 323(d), provided for alternatives to a transcript in the form of a 'Settled Statement' or an 'Agreed Statement of Facts.'3 Without resorting to either alternative, appellant made a motion in the Illinois Supreme Court for an order that he be furnished a transcript of proceedings without cost. The Supreme Court denied the motion in an unreported order without filing an opinion. We noted probable jurisdiction of appellant's appeal challenging the constitutionality of the limitation of Rule 607(b) to felony cases. 401 U.S. 906, 91 S.Ct. 893, 27 L.Ed.2d 804 (1971).
2
* Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), is the watershed of our transcript decisions. We held there that '(d)estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.' Id., at 19, 76 S.Ct., at 591. This holding rested on the 'constitutional guaranties of due process and equal protection both (of which) call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons.' Id., at 17, 76 S.Ct., at 589. We said that '(p)lainly the ability to pay costs in advance bears no rational relationship to a defendant's guilt or innocence * * *,' id., at 17—18, 76 S.Ct., at 590, and concluded that '(t)here can be no equal justice where the kind of trial a man gets depends on the amount of money he has.' Id., at 19, 76 S.Ct., at 591. Appellee city of Chicago urges that we re-examine Griffin. We decline to do so. For 'it is now fundamental that, once established * * * avenues (of appellate review) must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.' Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577 (1966).4 Therefore, '(i)n all cases the duty of the State is to provide the indigent as adequate and effective an appellate review as that given appellants with funds. * * *' Draper v. Washington, 372 U.S. 487, 496, 83 S.Ct. 774, 779, 9 L.Ed.2d 899 (1963). In terms of a trial record, this means that the State must afford the indigent a "record of sufficient completeness' to permit proper consideration of (his) claims.' Id., at 499, 83 S.Ct., at 781 (quoting Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 921, 8 L.Ed.2d 21 (1962)).
3
A 'record of sufficient completeness' does not translate automatically into a complete verbatim transcript. We said in Griffin that a State 'may find other means (than providing stenographic transcripts for) affording adequate and effective appellate review to indigent defendants.' 351 U.S., at 20, 76 S.Ct., at 591. We considered this more fully in Draper v. Washington, supra, 372 U.S., at 495—496, 83 S.Ct., at 779:
4
'Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge's minutes taken during trial or on the court reporter's untranscribed notes, or a bystander's bill of exceptions might all be adequate substitutes, equally as good as a transcript. Moreover, part or all of the stenographic transcript in certain cases will not be germane to consideration of the appeal, and a State will not be required to expend its funds unnecessarily in such circumstances. If, for instance, the points urged relate only to the validity of the statute or the sufficiency of the indictment upon which conviction was predicated, the transcript is irrelevant and need not be provided. If the assignments of error go only to rulings on evidence or to its sufficiency, the transcript provided might well be limited to the portions relevant to such issues. Even as to this kind of issue, however, it is unnecessary to afford a record of the proceedings pertaining to an alleged failure of proof on a point which is irrelevant as a matter of law to the elements of the crime for which the defendant has been convicted. In the examples given, the fact that an appellant with funds may choose to waste his money by unnecessarily including in the record all of the transcript does not mean that the State must waste its funds by providing what is unnecessary for adequate appellate review.'
5
We emphasize, however, that the State must provide a full verbatim record where that is necessary to assure the indigent as effective an appeal as would be available to the defendant with resources to pay his own way. Moreover, where the grounds of appeal, as in this case, make out a colorable need for a complete transcript, the burden is on the State to show that only a portion of the transcript or an 'alternative' will suffice for an effective appeal on those grounds. This rationale underlies our statement in Draper, supra, at 498, 83 S.Ct., at 780 that:
6
'(T)he State could have endeavored to show that a narrative statement or only a portion of the transcript would be adequate and available for appellate consideration of petitioners' contentions. The trial judge would have complied with * * * the constitutional mandate * * * in limiting the grant accordingly on the basis of such a showing by the State.'5
II
7
The distinction between felony and nonfelony offenses drawn by Rule 607(b) can no more satisfy the requirements of the Fourteenth Amendment than could the like distinction in the Wisconsin law, held invalid in Groppi v. Wisconsin, 400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971), which permitted a change of venue in felony but not in misdemeanor trials. The size of the defendant's pocketbook bears no more relationship to his guilt or innocence in a nonfelony than in a felony case. The distinction drawn by Rule 607(b) is, therefore, an 'unreasoned distinction' proscribed by the Fourteenth Amendment. Rinaldi v. Yeager, supra, 384 U.S., at 310, 86 S.Ct., at 1500. That conclusion follows directly from our decision in Williams v. Oklahoma City, 395 U.S. 458, 459, 89 S.Ct. 1818, 1819, 23 L.Ed.2d 440 (1969), rejecting the argument "that an indigent person, convicted for a violation of a city ordinance, quasi criminal in nature and often referred to as a petty offense, is (not) entitled to a case-made or transcript at city expense in order to perfect an appeal. * * *"6
III
8
The city of Chicago urges another distinction to set this case apart from Griffin and its progeny. The city notes that the defendants in all the transcript cases previously decided by this Court were sentenced to some term of confinement. Where the accused, as here, is not subject to imprisonment, but only a fine, the city suggests that his interest in a transcript is outweighed by the State's fiscal and other interests in not burdening the appellate process. This argument misconceives the principle of Griffin no less than does the line that Rule 607(b) expressly draws. Griffin does not represent a balance between the needs of the accused and the interests of society; its principle is a flat prohibition against pricing indigent defendants out of as effective an appeal as would be available to others able to pay their own way. The invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in the sentences that may be imposed. The State's fiscal interest is, therefore, irrelevant. Cf. Shapiro v. Thompson, 394 U.S. 618, 633, 89 S.Ct. 1322, 1330, 22 L.Ed.2d 600 (1969).
9
We add that even approaching the problem in the terms the city suggests hardly yields the answer the city tenders. The practical effects of conviction of even petty offenses of the kind involved here are not to be minimized. A fine may bear as heavily on an indigent accused as forced confinement. The collateral consequences of conviction may be even more serious, as when (as was apparently a possibility in this case) the impecunious medical student finds himself barred from the practice of medicine because of a conviction he is unable to appeal for lack of funds. Moreover, the State's long-term interest would not appear to lie in making access to appellate processes from even its most inferior courts depend upon the defendant's ability to pay. It has been aptly said:
10
'(F)ew citizens ever have contact with the higher courts. In the main, it is the police and the lower court Bench and Bar that convey the essence of our democracy to the people.
11
'Justice, if it can be measured, must be measured by the experience the average citizen has with the police and the lower courts.'7
12
Arbitrary denial of appellate review of proceedings of the State's lowest trial courts may save the State some dollars and cents, but only at the substantial risk of generating frustration and hostility toward its courts among the most numerous consumers of justice.
IV
13
We conclude that appellant cannot be denied a 'record of sufficient completeness' to permit proper consideration of his claims. We repeat that this does not mean that he is automatically entitled to a full verbatim transcript. He urges that his claims of insufficiency of the evidence and prejudicial prosecutorial misconduct cannot be fairly judged without recourse to the trial record.8 Draper suggests that these are indeed the kinds of claims that require provision of a verbatim transcript.9 See also Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969). In Draper, however, the State of Washington did not undertake to carry its burden of showing that something less than a complete transcript would suffice. Here the City of Chicago urges that the Illinois procedures for a 'Settled' or 'Agreed' statement may provide adequate alternatives. The city also argues that even if a verbatim record is required, less than a complete transcript may assure fair appellate review. We cannot address these questions, since the record before us contains only the parties' conflicting assertions; so far as appears neither of the Illinois courts below regarded resolution of the dispute to be relevant in light of Rule 607(b). That this was the view of the Circuit Court is clear. The order of the Supreme Court, however, may not have been based on the rule, but on the ground that appellant had the burden of showing that the alternatives of a 'Settled' or 'Agreed' statement were inadequate. We hold today that a denial of appellant's motion, either on the basis of the rule, or, in the context of his grounds of appeal, on the basis that he did not meet the burden of showing the inadequacy of the alternatives, would constitute constitutional error.
14
We are informed that appellant's appeal from his conviction has been docketed in the Illinois Supreme Court and that its disposition has been deferred pending our decision of this case. We therefore vacate the order of the Illinois Supreme Court and remand the case to that court for further proceedings not inconsistent with this opinion.
15
It is so ordered.
16
Order vacated and case remanded with directions.
17
Mr. Chief Justice BURGER (concurring).
18
I join the Court's opinion but add these observations chiefly to underscore that there are alternatives in the majority of cases to a full verbatim transcript of an entire trial. The references to what was said in Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963), emphasize the duty of counsel as officers of the court to seek only what is needed. In most cases, unlike this one, the essential facts are not in dispute on appeal, or if there is dispute it centers on certain limited aspects of the case. One need only examine briefs in appeals to see that at the appellate stage the area of conflict on the facts is generally narrow.
19
Every busy court is plagued with excessive demands for free transcripts in criminal cases.1 My own experience over the years indicates that privately employed counsel are usually spartan in their demands because the client must pay his own costs. Unfortunately one consequence of the advent of the Criminal Justice Act and state counterparts is that when costs are paid by the public, counsel are sometimes profligate in their demands, or yield their professional judgment to the client's desires. This is more than a matter of costs. An affluent society ought not be miserly in support of justice, for economy is not an objective of the system; the real vice is the resulting delay in securing transcripts and hence determining the appeal. When excessive demands are made by an appellant in order to postpone the day when the appeal is finally determined, because, for example, he is at liberty pending appeal,2 a lawyer who cooperates is guilty of unprofessional conduct.
20
I quite agree with Mr. Justice BRENNAN that 'a full verbatim record where that is necessary * * *' should be provided but judges and lawyers have a duty to avoid abuses that promote delays.
21
Mr. Justice BLACKMUN (concurring).
22
I concur in the opinion and judgment of the Court. I merely add an observation: The record indicates that in 1969, when the charges were brought against the appellant and he asserted his indigency, he was a third-year student in New York University Medical School. Perhaps, in the intervening two years, the appellant has completed his professional training. Perhaps by now he is even licensed and is earning his living. If so, these will be factors to be considered by the Illinois courts on remand.
1
A court reporter was provided at appellant's trial pursuant to the State Court Reporters Act, Ill.Rev.Stat., c. 37, § 651 et seq. (1969). It was estimated that the cost of preparing a transcript would be $300. The record refers in some places to a two-day trial and in other places to a three-day trial.
Under Illinois law at the time of appellant's convictions an appeal lay as of right either to the Illinois Supreme Court or to the Illinois Appellate Court, depending upon the nature of the case or the contentions raised. See Constitution of Illinois 1870, Art. 6, §§ 5, 7 (1969), S.H.A. If a case was erroneously appealed to the wrong court, it was transferred to the proper court without any loss of rights. Illinois Supreme Court Rule 365, Ill.Rev.Stat., c. 110A, § 365 (1969). Of course, whether an appeal is discretionary or as of right does not affect an indigent's right to a transcript, since '(i)ndigents must * * * have the same opportunities to invoke the discretion of the' court as those who can afford the costs. Burns v. Ohio, 360 U.S. 252, 258, 79 S.Ct. 1164, 1168, 3 L.Ed.2d 1209 (1959).
2
The full text of Rule 607(b), Ill.Rev.Stat., c. 110A, § 607(b) (1969), was as follows:
'Report of Proceedings. In any case in which the defendant is convicted of a felony, he may petition the court in which he was convicted for a report of proceedings at his trial. If the conduct on which the felony case is based was also the basis for a juvenile proceeding which was dismissed so the felony case could proceed, the defendant may include in his petition a request for a report of proceedings in the juvenile proceeding. The petition shall be verified by the petitioner and shall state facts showing that he was at the time of his conviction, and is at the time of filing the petition, without financial means to pay for the report. If the judge who imposed sentence, or in his absence any other judge of the court, finds that the defendant is without financial means with which to obtain the report of proceedings at his trial, he shall order the court reporter to transcribe an original and copy of his notes. The original of the report shall be certified by the reporter and filed with the clerk of the trial court as provided below, and the copy shall be certified by the reporter and delivered to the defendant without charge. The reporter who prepares a report of proceedings pursuant to an order under this rule shall be paid the same fee for preparing the transcript as is provided by law for the compensation of reporters for preparing transcripts in other cases.'
Following Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the Illinois Legislature authorized free transcripts for indigents '(u) pon imposition of any sentence in a criminal case.' See Ill.Ann.Stat., c. 38, § 121—13(a) and committee comments appended thereto (1964). However, under authority allowing the State Supreme Court, in effect, to amend code provisions governing criminal appeals, id., § 121—1, the court promulgated Rule 607(b) authorizing transcripts at state expense only for indigents convicted of a felony. The rule was amended effective July 1, 1971, to apply to 'any case in which the defendant is convicted of an offense punishable by imprisonment for more than six months.' 1971 Illinois Legislative Service, No. 5, p. 1703.
3
These rules, Ill.Rev.Stat., c. 110A, § 323(c) and (d) (1969), provided:
'(c) Procedure If No Verbatim Transcript Is Available. If no verbatim transcript of the evidence or proceedings is obtainable the appellant may prepare a proposed report of proceedings from the best available sources, including recollection. It shall be served within seven days after the notice of appeal is filed. Within 21 days after the notice of appeal is filed, any other party may serve proposed amendments or his proposed report of proceedings. Within seven days thereafter, the appellant shall, upon notice, present the proposed report or reports and any proposed amendments to the trial court for settlement and approval. The court, holding hearings if necessary, shall promptly settle, certify, and order filed an accurate report of proceedings.
'(d) Agreed Statement of Facts. The parties by written stipulation may agree upon a statement of the facts material to the controversy and file it in lieu of and within the time for filing a report of proceedings.'
These rules were also amended effective July 1, 1971, but not in ways material to this case. See 1971 Illinois Legislative Service, No. 5, p. 1690. Despite the provision limiting use of a 'Settled' statement to cases where no verbatim transcript is 'available' or 'obtainable,' the procedure of subsection (c) evidently is permissible even though the court reporter's notes are available for transcription. See Tone, New Supreme Court Rule on Expeditious and Inexpensive Appeals, 53 Ill.B.J. 18, 20 (1964).
4
Our decisions on the question of free transcripts for indigents include: Wade v. Wilson, 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470 (1970); Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969); Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969); Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963); Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); and Eskridge v. Washington Prison Bd., 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958).
5
See also Gardner v. California, 393 U.S., at 370, 89 S.Ct., at 582, 21 L.Ed.2d 601 (noting no suggestion made of an adequate substitute for a full transcript); Eskridge v. Washington Prison Bd., 357 U.S., at 215, 78 S.Ct., at 1062, 2 L.Ed.2d 1269 (1958) (noting State's failure to show availability of trial notes).
6
It is true, as the city of Chicago argues, that in Williams the defendant was effectively denied any right of appeal, whereas here a transcript was not a condition precedent for appeal. The constitutional infirmity in Rule 607(b) is not the less for that reason. The indigent defendant must be afforded as effective an appeal as the defendant who can pay.
7
Murphy, The Role of the Police in Our Modern Society, 26 The Record of the Association of the Bar of the City of New York 292, 293 (1971).
8
It is not clear whether appellant seeks a full transcript. What he applied for and was denied in the Circuit Court was only 'such portion of the trial transcript as the parties may designate.' Moreover, he stated in his brief to the State Supreme Court that 'it is expected that certain stipulations concerning voir dire will be forthcoming. The rest of the transcript up to the end of closing arguments is required.'
9
In Draper, 372 U.S., at 496—497, 83 S.Ct., at 779, we remarked:
'Petitioners' contentions in the present case were such that they could not be adequately considered by the State Supreme Court on the limited record before it. The arguments about improper foundation for introduction of the gun and coat, for example could not be determined on their merits—as they would have been on a nonindigent's appeal—without recourse at a minimum to the portions of the record of the trial proceedings relating to this point. Again the asserted failure of proof with respect to identification of the defendants and the allegations of perjury and inconsistent testimony were similarly impossible to pass upon without direct study of the relevant portions of the trial record. Finally, the alleged failure of the evidence to sustain the conviction could not be determined on the inadequate information before the Washington Supreme Court.'
1
It is not the increase in number of requested transcripts alone which has resulted in delay. The delay has been caused by the combination of this increase with the failure of the system to increase its ability to produce transcripts. Cf. Committee of Section of Criminal Law of American Bar Association, Appellate Delay in Criminal Cases; A Report, 2 Am.Crim.L.Q. 150, 153 (1964). In the typical situation in federal courts the reporter is an independent contractor selected by the Government to make a verbatim record of the entire proceedings. In some States the court reporter is an employee. In most systems the reporter independently contracts with the parties to transcribe the record at a certain fee per page. Although courts have supervisory power over the reporter, administration of the transcribing of the notes is often left largely if not completely to the discretion of the reporter. See generally Administrative Office of the United States Courts, The Court Reporting System in the United States District Courts 7—47 (1960). With the enormous increase in criminal cases, reporters are often unable to keep up with the demand for transcripts and at the same time continue with regular reporting. Some reporters fail to make adequate arrangements for stenographers to transcribe their notes, which can be done by someone other than the reporter. The failure of courts to give adequate supervision to the work of court reporters accounts for much of the delay in processing appeals. Courts have an obligation to exercise sufficient oversight of reporters to ensure that proceedings are transcribed with dispatch.
2
See American Bar Association, Project on Standards for Criminal Justice, Criminal Appeals § 2.3 (Approved Draft 1970), which concludes that '(a)utomatic release pending appeal' is one of the 'unacceptable inducements to taking appeals.' See also id., § 2.5.
| 12
|
404 U.S. 226
92 S.Ct. 431
30 L.Ed.2d 400
Charles W. BRITT, Jr., Petitioner,v.State of NORTH CAROLINA.
No. 70—5041.
Argued Oct. 14, 1971.
Decided Dec. 13, 1971.
Syllabus
Petitioner was convicted of murder a month after his previous trial had ended with a hung jury. Both trials took place in a small town before the same judge and with the same counsel and court reporter, who (as was conceded) was well known to defense counsel and other local lawyers and would have read back his notes to defense counsel before the second trial had he been asked to do so. Between the two trials petitioner, alleging indigency, filed a motion for a free transcript, which the trial court denied. The appellate court affirmed the conviction, holding that an adequate alternative to the transcript was available. Held: In the narrow circumstances of this case, a transcript was not needed for petitioner's defense. Pp. 227—230.
8 N.C.App. 262, 174 S.E.2d 69, affirmed.
Robert G. Bowers, New Bern, N.C., for petitioner.
Christine Y. Denson, Raleigh, N.C., for respondent.
Mr. Justice MARSHALL, delivered the opinion of the Court.
1
Petitioner's three-day murder trial ended in a mistrial when the jury reported a hopeless deadlock. A retrial was scheduled for the following month. In the interim, petitioner filed a motion alleging that he was indigent, and asking for a free transcript of the first trial. The trial court denied his motion, and the North Carolina Court of Appeals affirmed, stating that the record of the case did not reveal a sufficient need for the transcript. 8 N.C.App. 262, 174 S.E.2d 69 (1970). The North Carolina Supreme Court denied certiorari. We granted certiorari to determine whether the rule of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), applies in this context. 401 U.S. 973, 91 S.Ct. 1204, 28 L.Ed.2d 322 (1971). We conclude that it does, but that in the narrow circumstances of this case, no violation of that rule has been shown, and therefore we affirm.
2
Griffin v. Illinois and its progeny establish the principle that the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners. While the outer limits of that principle are not clear, there can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal.1 The question here is whether the state court properly determined that the transcript requested in this case was not needed for an effective defense.
3
In prior cases involving an indigent defendant's claim of right to a free transcript, this Court has identified two factors that are relevant to the determination of need: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.2 Mr. Justice DOUGLAS suggests that the North Carolina courts refused to order a transcript in this case both because petitioner failed to make a particularized showing of need, and because there were adequate alternative devices available to him.
4
We agree with the dissenters that there would be serious doubts about the decision below if it rested on petitioner's failure to specify how the transcript might have been useful to him. Our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case.3 As Mr. Justice DOUGLAS makes clear, even in the absence of specific allegations it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.
5
But the court below did not use the language of 'particularized need.' It rested the decision instead on the second factor in the determination of need, that is, the availability of adequate alternatives to a transcript. The second trial was before the same judge, with the same counsel and the same court reporter, and the two trials were only a month apart. In these circumstances, the court suggested that petitioner's memory and that of his counsel should have furnished an adequate substitute for a transcript. In addition, the court pointed to the fact that petitioner could have called the court reporter to read to the jury the testimony given at the mistrial, in the event that inconsistent testimony was offered at the second trial.
6
We have repeatedly rejected the suggestion that in order to render effective assistance, counsel must have a perfect memory or keep exhaustive notes of the testimony given at trial.4 Moreover, we doubt that it would suffice to provide the defendant with limited access to the court reporter during the course of the second trial. That approach was aptly rejected as 'too little and too late' in United States ex rel. Wilson v. McMann, 408 F.2d 896, 897 (CA2 1969). At oral argument in this case, however, it emerged that petitioner could have obtained from the court reporter far more assistance than that available to the ordinary defendant, or to the defendant in Wilson. The trials of this case took place in a small town where, according to petitioner's counsel, the court reporter was a good friend of all the local lawyers and was reporting the second trial. It appears that the reporter would at any time have read back to counsel his notes of the mistrial, well in advance of the second trial, if counsel had simply made an informal request.5
7
A defendant who claims the right to a free transcript does not, under our cases, bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight. In this case, however, petitioner has conceded that he had available an informal alternative which appears to be substantially equivalent to a transcript.6 Accordingly, we cannot conclude that the court below was in error in rejecting his claim.
8
For these reasons the judgment is affirmed.
9
Affirmed.
10
Mr. Justice BLACKMUN concurs in the result, but he would dismiss the petition for certiorari as having been improvidently granted.
11
Mr. Justice DOUGLAS with whom Mr. Justice BRENNAN concurs, dissenting.
12
After the State's first murder prosecution of the petitioner ended in a hung jury in November 1969, Britt was retried, convicted, and sentenced to 30 years' imprisonment. During the interim between the two trials, the petitioner made a showing of indigency and asked that the State provide him with a free transcript of the mistrial. The trial court denied his motion despite Britt's contention that because a more affluent defendant could purchase such a transcript as a matter of right a denial of his request would offend the principle of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, (1956). On appeal, the North Carolina Court of Appeals was likewise unconvinced by Britt's equal protection claim and affirmed the trial court's refusal to order a free transcript, stating that (a) the petitioner had not made a particularized showing of need, (b) he had been represented by the same lawyer at both trials, and therefore (c) any suspected inconsistencies in prosecution evidence could have been developed by counsel's putting on the court reporter to read earlier testimony of the first trial. Because I am persuaded by Britt's argument I would reverse the decision of the North Carolina Court of Appeals.
13
* Griffin v. Illinois, supra, 351 U.S., at 19, 76 S.Ct., at 591, established the now familiar principle that '(t)here can be no equal justice where the kind of trial a man gets depends on the amount of money he has.' While Griffin involved only the provision of a free transcript to an indigent on direct appeal, its underlying principle has achieved broader usage. We have witnessed a steady growth of its applications to other transcript cases,1 to docketing fees,2 and to right to counsel.3
14
Of these applications, Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967), is most analogous to the instant circumstances. In Roberts, an indigent defendant before trial asked a state court to provide him with a free transcript of a preliminary hearing at which a key state witness had testified. In Roberts, as here, no special showing of need was made, the defendant was represented by the same counsel at all times, and the court reporter could have been called to read back previous testimony. Id., at 43, 88 S.Ct., at 196. Nonetheless, over the dissent of Mr. Justice Harlan that no prejudice had been shown id., at 44, 88 S.Ct., at 197, we held that withholding the requested transcript was an invalid interposition of a financial consideration between an indigent prisoner and his right to sue for his liberty. Id., at 42, 88 S.Ct., at 196.
15
Here the request was for a mistrial transcript, whereas in Roberts a motion had been made for a preliminary hearing transcript. In the ways in which either might be used I can perceive no differences. In both sets of circumstances it would seem that defendants would be interested in better trial preparation and in better positions from which to challenge discrepancies in government witnesses' stories.4 For both of these purposes a mistrial transcript would be more valuable than a preliminary hearing recording because the former is a virtual dry run of the entire prosecution's case, information which normally is clothed in top secrecy under the prevailing and restrictive rules against a criminal defendant's discovery.
16
Perhaps for these considerations the Second Circuit has squarely held that indigent state defendants have an absolute right to free transcripts of previous prosecutions ending in hung juries. United States ex rel. Wilson v. McMann, 408 F.2d 896 (CA2 1969). As both here and in Roberts, Wilson had made no showing of particular need, had been represented by the same lawyer at all times, and could have called the court reporter to read back previous testimony. And, as here, the defendant had requested a mistrial transcript during the interim between the two prosecutions. The Second Circuit considered Griffin and Roberts controlling.
17
The North Carolina Court of Appeals, however, has rejected the Griffin-Roberts-Wilson cases and sought refuge in the pre-Roberts authority of Nickens v. United States, 116 U.S.App.D.C. 338, 323 F.2d 808 (1963), which had emphasized, as did the court below, the defendant's failure to articulate a particular need for a transcript, the continuity of defense counsel, and the availability of the court reporter.5 I thought that these arguments had been found irrelevant for constitutional purposes under Griffin-Roberts-Wilson.
II
18
The primary rationale offered to support the holding below is that the petitioner failed to make a showing of a particularized need for a mistrial transcript. Presumably this rationale flows from the legitimate state interest in avoiding needless fiscal outlays. In related contexts we have rejected the notion that an impoverished accused in the federal courts may be refused a transcript simply because his lawyer is unable to articulate the very subtleties which might be buried in the document he seeks. For example, in Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964), we required courts of appeals to order for indigent criminal appellants complete trial transcripts even for the preliminary purpose of determining whether their appeals might present non-frivolous questions for review and therefore entitle them to in forma pauperis relief pursuant to 28 U.S.C. § 1915. We rejected the then-prevailing view that a full transcript for such purposes could only be provided for those appellants able to demonstrate a particular need for all parts thereof. The concurring opinion of four Justices concerning the value of a transcript in appellate advocacy is applicable to the analogous use of a mistrial transcript in formulating retrial strategy:
19
'As any effective appellate advocate will attest, the most basic and fundamental tool of his profession is the complete trial transcript, through which his trained fingers may leaf and his trained eyes may roam in search of an error, a lead to an error, or even a basis upon which to urge a change in an established and hitherto accepted principle of law. * * *
20
'* * * No responsible retained lawyer who represents a defendant at trial will rely exclusively on his memory (even as supplemented by trial notes) in composing a list of possible trial errors which delimit has appeal.' Hardy v. United States, supra, 375 U.S., at 288, 84 S.Ct., at 431 (Goldberg, J., concurring).
21
Similarly, while counsel is studying mistrial minutes, the precise words used by a witness might trigger mental processes resulting in legitimate defense strategies which otherwise might be overlooked. Such spontaneity can hardly be forecast and articulated in advance in terms of special or particularized need.
22
It is unnecessary, however, to speculate as to how often helpful subtleties in mistrial transcripts might actually be found because, as a more general matter, at least two compelling interests would be routinely served by providing paupers with free transcripts, even in cases where counsel were unable to specify the precise nature of the benefits of such discovery. As mentioned earlier, one such interest is that of effective trial preparation by counsel (who may realize that his counterpart, the prosecutor, will employ a similar document supplied at the State's expense during his own trial preparation). The other interest is that of anticipating possible discrepancies in prosecution witnesses' statements and in being prepared immediately to challenge such contradictions. See Wilson, supra, 408 F.2d at 897. Because wealthier defendants tend to purchase transcripts as a matter of course simply on the strength of these recurring interests, it would appear that these benefits are ordinarily worth the fiscal burden of providing the documents regardless of how the cost of reproducing minutes may be distributed.6
23
When viewed in the broader context of a defendant's complete lack of criminal discovery procedures, the importance of a mistrial transcript becomes even clearer. Many commentators have criticized the persistent common-law prohibition against discovery by criminal defendants, characterizing present systems as 'sporting theories of justice' and complaining of the vast advantage enjoyed by the prosecution in the marshaling of evidence.7 While some States and the federal system have moved to liberalize defendants' discovery privileges,8 the common-law prohibition with limited exceptions still applies in North Carolina.9 No criminal analogue has been enacted to complement the State's more modern and comprehensive rules of civil discovery.10 Instead, its judiciary has continued to apply the common law's flat ban and as recently as 1964 has reaffirmed that policy. In State v. Goldberg, 261 N.C. 181, 134 S.E. 2d 334 (1964), the North Carolina Supreme Court affirmed a trial court's refusal to order the State Bureau of Investigation to permit a defendant to inspect certain documents in its files. In explaining the ancient rule the court approved the language of Chief Justice Vanderbilt's well-known view of criminal discovery in the leading case of State v. Tune, 13 N.J. 203, 98 A.2d 881 (1953):
24
"In criminal proceedings long experience has taught the courts that often discovery will lead not to honest factfinding, but on the contrary to perjury and the suppression of evidence. Thus the criminal who is aware of the whole case against him will often procure perjured testimony in order to set up a false defense. * * * Another result of full discovery would be that the criminal defendant who is informed of the names of all the State's witnesses may take steps to bribe or frighten them into giving perjured testimony or into absenting themselves so that they are unavailable to testify. Moreover, many witnesses, if they know that the defendant will have knowledge of their names prior to trial, will be reluctant to come forward with information during the investigation of the crime. * * * All these dangers are more inherent in criminal proceedings where the defendant has much more at stake, often his own life, than in civil proceedings. The presence of perjury in criminal proceedings today is extensive despite the efforts of the courts to eradicate it and constitutes a very serious threat to the administration of criminal justice and thus to the welfare of the country as a whole. * * * To permit unqualified disclosure of all statements and information in the hands of the State would go far beyond what is required in civil cases; it would defeat the very ends of justice." State v. Goldberg, supra, 261 N.C., at 192, 134 S.E.2d at 341.11
25
North Carolina's presentation of an anti-discovery policy is evidenced not only in its reluctance to enact a modern code to permit such procedures but also in its occasional one-sided legislation concerning related matters. For example, while a local prosecutor has an absolute right to inspect the files of the State Bureau of Investigation which pertain to one of his local inquiries, an accused may inspect such evidence only upon court order procured for good cause. See N.C.Gen.Stat. § 114—15 (1966). Even a common-law request for a bill of particulars to clarify an indictment normally does not require a prosecutor to divulge names of his witnesses or the nature of his physical or documentary evidence.12 N.C.Gen.Stat. § 15—143 (1965); State v. Spence, 271 N.C. 23, 32, 155 S.E.2d 802, 809 (1967).13
26
Thus, it is not surprising that Britt's investigative and preparatory resources were puny in contrast to those employed by his accusers. The local police were able to enlist the talent of the State Bureau of Investigation to trace and analyze fingerprint evidence. Investigators were able to study the situs of the murder. At their convenience officers were able to interrogate the incarcerated defendant, eventually eliciting from him an incriminating statement. After the mistrial the prosecutor, unlike Britt's lawyer, had access to a transcript to readjust his trial strategy.
27
This Court has been sensitive to the persuasive arguments for more liberal rules of criminal discovery.14 To the extent that a State permits criminal discovery by its accused, it is our duty to forbid distribution of its fruits according to formulas based on wealth, which, like race, is a suspect classification. Griffin v. Illinois, supra; Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169, (1966); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600, (1969).
28
The provision in North Carolina permitting defendants to purchase mistrial minutes is obviously an important exception to the common-law prohibition. A mistrial transcript contains not only prosecution witnesses' names and addresses but their stories under oath and it contains the entire theory of the government's case. Such a document is a complete dossier of the opposing case for which even the most liberalized rules of civil discovery have no equivalent. While this exception endures, the State may not condition its availability upon financial considerations which effectively deprive the poor of this valuable tool.
III
29
The lower court's opinion suggests that whatever legitimate uses generally might be made of mistrial minutes could alternatively be accomplished by counsel's calling as a witness the court reporter of the previous prosecution. See also Nickens v. United States, 116 U.S.App.D.C., at 341, 323 F.2d, at 811. However satisfactorily that suggestion might facilitate impeachment of government witnesses, it should be clear that the procedure would provide no assistance in preparing counsel for trial.
30
Moreover, the procedure of calling a court reporter to verify hostile witnesses' contradictions has been discredited by trial commentators, including Professor Robert Keeton:
31
'If you have caught the witness in a contradiction, it is the more clearly shown if the exact words previously used by the witness are brought to the jury's attention. The effect may extend beyond the bearing of the contradiction on its own subject matter, for the witness may be 'broken down' so that he makes other admissions or the jury disbelieves other parts of his testimony. Calling upon the reporter to read such prior testimony during the examination, however, is rarely a practicable method of confronting the witness with such contradiction. Many trial judges will decline to permit the practice because of the great delay usually involved, while the reporter is searching through his notes in an effort to find the part of the testimony to which you refer. Even if the judge will permit the practice, the wisdom of its use is questionable. The jury and court may grow impatient, and the witness will have been afforded a considerable period of time to think about the matter and be prepared with an explanation or excuse.' R. Keeton, Trial Tactics and Methods 103 (1954). (Emphasis added.)
32
Indeed these hazards were painfully present in United States ex rel. Wilson v. McMann, supra, in which Wilson's attorney erroneously believed he remembered an inconsistent statement of a prosecution witness who had testified at the prior mistrial. At the second trial the lawyer quizzed the witness concerning this prior remark but the witness denied having ever made it. The judge decided to delay the trial until the reporter of the mistrial could read back the precise words used by the witness. After 'considerable delay and perhaps some inconvenience to the jurors' counsel learned that he had been mistaken and that no contradiction, at least on the suspected issue had existed. Id., at 898.
33
I am not satisfied that the procedure afforded paupers by the Nickens majority is a reasonable substitute for full access to a mistrial transcript. Accordingly, I would hold under the Griffin-Roberts-Wilson line of authority that Britt has been denied equal protection of the laws.15
34
I would reverse the judgment below.
1
Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969); Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969); Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Eskridge v. Washington State Bd. of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).
2
See Draper v. Washington, supra, 372 U.S., at 495—496, 83 S.Ct., at 778—779, and other cases cited n. 1, supra.
3
In Griffin, the Court was able to rely on a concession of need by the State, 351 U.S., at 13—14, 16, 76 S.Ct., at 588, 589. In subsequent cases the Court has taken judicial notice of the importance of a transcript in a variety of circumstances, see Eskridge, supra, 357 U.S., at 215, 78 S.Ct., at 1062; Gardner, supra, 393 U.S., at 369—370, 89 S.Ct., at 582—583. Most recently in Long and Roberts the Court simply found it unnecessary to discuss the question, notwithstanding the fact that in Roberts Mr. Justice Harlan argued in dissent that petitioner had suggested no use to which the transcript could have been put, 389 U.S., at 43, 88 S.Ct., at 196.
4
While trial notes might well provide an adequate substitute for a transcript, the failure to make such notes does not bar an indigent prisoner from claiming the right to a free transcript, Eskridge, supra, 357 U.S., at 215, 78 S.Ct., at 1062. As for requiring a prisoner to rely on his memory, this Court rejected that as an alternative to a transcript in Gardner, supra, 393 U.S., at 369—370, 89 S.Ct., at 582—583, and Williams, supra, 395 U.S., at 459, 89 S.Ct., at 1819. Indeed, in Long we refused to consider any alternatives suggested by the State, on the ground that in that case a transcript was in fact available and could easily have been furnished. 385 U.S., at 194—195, 87 S.Ct., at 364. Whether a transcript is similarly available in this case does not appear from the record.
5
Tr. of Oral Arg. 12. Cf. Avery v. Alabama, 308 U.S. 444, 450—452, 60 S.Ct. 321, 324—325, 84 L.Ed. 377 (1940) (Black, J.).
6
Cf. Wade v. Wilson, 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470 (1970), in which no such concession was made. In that case it simply appeared from the record that petitioner might have been able to borrow a transcript from the prosecutor, in light of the fact that he had done so in an earlier proceeding. We remanded the case to permit exploration of that possibility.
1
Wade v. Wilson, 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470 (1970); Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969); Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); Ross v. Schneckloth, 357 U.S. 575, 78 S.Ct. 1387, 2 L.Ed.2d 1547 (1958); People v. Montgomery, 18 N.Y.2d 993, 278 N.Y.S.2d 226, 224 N.E.2d 730 (1966). An indigent's right to a transcript of grand jury testimony in the federal courts is now protected by the Criminal Justice Act of 1964, at least to the extent that any defendant—whether rich or poor—has access thereto. 18 U.S.C. § 3006A(e) (1). In the Second and Seventh Circuits federal defendants have absolute rights to all grand jury minutes. United States v. Youngblood, 379 F.2d 365 (CA2 1967); United States v. Amabile, 395 F.2d 47, 53 (CA7 1968). And in all other circuits the grand jury testimony of an individual prosecution witness is discoverable under the recent amendments to the Jencks Act. 18 U.S.C. § 3500(e) (3).
2
Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961); Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959).
3
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); see also Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
4
These two reasons were offered by the Second Circuit to explain why a mistrial transcript might be useful. United States ex rel. Wilson v. McMann, 408 F.2d 896 (CA2 1969). Our discussion in Roberts did not suggest any ways in which the transcript of the pretrial hearing might have been useful, although our per curiam intimated that perhaps counsel desired to have a check against the testimony of a key witness, Roberts v. LaVallee, supra, 389 U.S., at 41, 88 S.Ct., at 195; nor did the Second Circuit's discussion of the issue, United States ex rel. Roberts v. LaVallee, 373 F.2d 49 (CA2 1967).
5
Nickens v. United States, 116 U.S.App.D.C. 338, 323 F.2d 808 (1963), was decided before the full development of our transcript cases. The majority opinion in Nickens gave the other issues in the case more plenary consideration. Judge Wright concurred in the majority's view that no transcript had been required but only because he believed a motion to obtain a transcript had not been properly raised. Id., at 345, 323 F.2d, at 815. Also cited in the North Carolina opinion was Forsberg v. United States, 351 F.2d 242 (CA9 1965), also a pre-Roberts opinion, which relied solely on Nickens in denying a mistrial transcript to an indigent. Id., at 248.
6
Professor Robert Keeton notes that in civil cases involving large amounts of money it is standard practice for lawyers to place 'a standing order with the reporter for 'daily copy' of the trial proceedings.' R. Keeton, Trial Tactics and Methods 104 (1954). Presumably when wealthy clients are haled before criminal courts rather than before civil ones, their attorneys likewise place such standing orders.
7
The excessive disparity between the State and the accused in their respective investigative resources, and the common law's prohibition against discovery have been summarized as follows by one commentator:
'(T)he law enforcement agency is often at the scene of the crime shortly after its commission. While at the scene, the police have better access to witnesses with fresher recollections. They are authorized to confiscate removable evidence. In addition, the financial and investigatory resources of law enforcement agencies permit an extensive analysis of all relevant evidence.
'The defendant has the option of hiring a private investigator. However, the investigator will probably get to the scene long after the occurrence of the crime and after the police have made their investigation and removed all relevant physical evidence. The defendant's investigator may have difficulty viewing the scene if it is on private property. Witnesses may be less accessible; their recollections will probably be less precise. Indeed they may choose not to cooperate at all with the defendant's investigator. However, it may all be irrelevant if, as is often the case, the defendant is unable to afford an investigator or is incarcerated pending trial.
'The defendant is helpless to cope with the uncooperative witness while the prosecutor has numerous means to compel testimony. First, there is the possibility of (a) coroner's inquest or a preliminary hearing. And if the prosecution prefers not to have the defense present, some jurisdictions allow the prosecution to take testimony while the defendant and his attorney are excluded. The uncooperative witness can be subpoenaed to appear before the grand jury and required to testify, again without the presence of the defense. The defense cannot, usually, discover the grand jury minutes.
'Many states require that the defendant give notice of intended alibi or insanity defenses. The prosecution's burden, in bringing a charge, in contrast, has been substantially lessened. Mere recitation of the statute may be a sufficient pleading of the charge. Amendments to the indictment or information are liberally allowed; duplicity and variances are no longer serious defects. Liberal pleading rules deprive the defendant of effective notice of the circumstances of the offense.' Norton, Discovery in the Criminal Process, 61 J.Crim.L.C. & P.S. 11, 13—14 (1970). See generally Handzel, 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 Headed?, 6 Duquesne U.L.Rev. 41 (1967); Golden & Palik, Bibliography: Criminal Discovery, 5 Tulsa L.J. 207 (1968); Symposium: Discovery in Federal Criminal Cases, 33 F.R.D. 47 (1963); Brennan, Criminal Prosecution: Sporting Event or Quest For Truth?, 1963 Wash. U.L.Q. 279.
8
See Fed.Rules Crim.Proc. 15—17. See also Note, Discovery Procedures Under New York's New Criminal Procedure Law, 38 Brooklyn L.Rev. 164 (1971); Right of Accused in State Courts to Inspection or Disclosure of Evidence in Possession of Prosecution, 7 A.L.R.3d 8 (1966).
9
Statutory exceptions to the common-law ban in North Carolina may be found at N.C.Gen.Stat. § 8—74 (1969) (depositions of witnesses unable to attend trial); and at § 15—155.4 (Supp.1969). The latter provision was enacted in 1967 and permits limited discovery of prosecution evidence where (a) good cause is shown for discovery, (b) the prosecution intends to use the evidence at trial. The latter condition would effectively prevent defendants' discovery of evidence which might be favorable. The only reported decisions considering this addition are those in State v. Macon, 276 N.C. 466, 173 S.E.2d 286 (1970), affirming 6 N.C.App. 245, 170 S.E.2d 144 (1969), upholding the refusal of a trial court to permit an accused's inspection of notes which had been made by a specified police officer during the accused's interrogation.
10
N.C.Gen.Stat. c. 1A (1969).
11
The celebrated opinions in State v. Tune, 13 N.J. 203, 98 A.2d 881 (1953), contain a vigorous dissent by Justice (now Mr. Justice) Brennan who expressed regret over the majority's disregard of the successful implementation of liberal discovery in civil matters.
12
In another North Carolina retrial situation considered in State v. Overman, 269 N.C. 453, 153 S.E.2d 44 (1967), an accused rapist's pretrial request for details concerning the evidence to be presented against him was denied on the ground that he could simply study a transcript of his prior acquittal of a kidnaping charge arising out of the same transaction.
13
The most comprehensive and recent statement of criminal discovery in North Carolina is A Look At North Carolina's Criminal Discovery System Prepared for North Carolina Governor's Committee on Law and Order, Task Force on Arrest and Apprehension, A. Pye, Chmn. (1970): 'Very little use is being made of the new (1967) criminal discovery statute (G.S. 15—155) which is resulting in a paucity of cases dealing with the extent to which it allows discovery. It is unclear whether the attorneys are not aware of the statute or whether they feel that there is little use in filing a motion under it. * * * Indications are that both these reasons have vitality.' id., at 14—15. It continues:
'There is a strong possibility that solicitors (consciously or unconsciously) withhold evidence favorable to the defendant * * *.' Id., at 16.
In addition to the discussion of such procedures in State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334 (1964), see State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506 (1965) (access to police reports and notes denied); State v. Overman, supra, 269 N.C., at 468, 153 S.E.2d, at 57; see also Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), cited with approval in Goldberg, supra, 261 N.C., at 191, 134 S.E.2d, at 341, holding that a defendant has no right to inspect memoranda used by prosecution witnesses to refresh their memories. See generally the restatement of the common-law rules of discovery, cited by the Goldberg court, supra, at 191, 134 S.E.2d, at 340 and 23 C.J.S. Criminal Law §§ 995(1) and (2).
14
See Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942); Jencks v. United States, 353 U.S. 657, 668, 77 S.Ct. 1007, 1013, 1 L.Ed.2d 1103 (1957); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In Dennis v. United States, 384 U.S. 855, 873, 86 S.Ct. 1840, 1851, 16 L.Ed.2d 973 (1966), we required a trial court to allow inspection by a defendant of grand jury minutes, reasoning that: 'In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant fact.'
15
The majority does not disagree that under ordinary circumstances Britt would have been denied equal protection of the laws. The majority, however, distinguishes Britt's case from the routine case because he was tried in a small town where defense counsel was well acquainted with the court reporter. Counsel, reasons the Court, ought to have prevailed upon the reporter between trials to assist in his making notes of the first trial. I believe that these kinds of fortuities ought not to be determinative of constitutional guarantees, especially where it may be difficult afterwards to establish the nature of such alleged relationships.
| 12
|
404 U.S. 202
92 S.Ct. 418
30 L.Ed.2d 383
VICTORY CARRIERS, INC., et al., Petitioners,v.Bill LAW.
No. 70—54.
Argued Oct. 18—19, 1971.
Decided Dec. 13, 1971.
Rehearing Denied Jan. 24, 1972.
See 404 U.S. 1064, 92 S.Ct. 731.
Syllabus
State law and not federal maritime law held to govern suit by respondent longshoreman who was injured by alleged defect in his stevedore employer's pierbased forklift truck which respondent was operating on the dock to transfer cargo to a point alongside a vessel where it was to be hoisted aboard by the ship's own gear. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, and Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297, distinguished. Pp. 204—216, 432 F.2d 376, reversed.
W. Boyd Reeves, Mobile, Ala., for the petitioners.
Ross Diamond, Jr., Mobile, Ala., for the respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
The question presented here is whether state law or federal maritime law governs the suit of a longshoreman injured on a pier while driving a forklift truck which was moving cargo that would ultimately be loaded aboard ship.
2
The facts are undisputed. When the accident happened, respondent Bill Law, a longshoreman employed by Gulf Stevedore Corp. in Mobile, Alabama, was on the pier driving a forklift loaded with cargo destined for the S.S. Sagamore Hill, a vessel owned by petitioner Victory Carriers, Inc., which was tied up at the pier. Law had picked up the load on the dock and was transferring it to a point alongside the vessel where it was to be subsequently hoisted aboard by the ship's own gear. The forklift was owned and under the direction of his stevedore employer. As Law returned toward the pickup point, the overhead protection rack of the forklift came loose and fell on him. He subsequently brought an action in a federal District Court against the ship and Victory Carriers, Inc., claiming that the unseaworthiness of the vessel and the negligence of Victory had caused his injuries. His claim invoked both the diversity jurisdiction of the District Court under 28 U.S.C. § 1332 and its admiralty and maritime jurisdiction under 28 U.S.C. § 1333. Victory filed a third-party complaint against Gulf for indemnity in the event Victory was held liable to Law. The unseaworthiness claim became the critical issue.1 On cross motions for summary judgment, the District Court gave judgment for petitioners on the ground that Law was not engaged in loading the vessel and that the doctrine of unseaworthiness did not extend to him. The Court of Appeals reversed. Relying on Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), and Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963), it held that the fundamental question was whether Law at the time was engaged in loading the Sagamore Hill and that since he was so engaged, he should be entitled to prove his allegations of unseaworthiness at a trial. We granted certiorari and now reverse the judgment of the Court of Appeals.
3
Article III, § 2, cl. 1, of the Constitution of the United States extends the federal judicial power 'to all Cases of admiralty and maritime Jurisdiction.' Congress has implemented that provision by 28 U.S.C. § 1333 which now provides that the district courts shall 'have original jurisdiction, exclusive of the courts of the States, of * * * (a)ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.' Under the saving-to-suitors clause of § 1333, the plaintiff was entitled to assert his claims under the diversity jurisdiction of the District Court, as well as under § 1333 itself, cf. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 410—411, 74 S.Ct. 202, 205—206, 98 L.Ed. 143 (1953), but under either section the claim that a ship or its gear was unseaworthy would be rooted in federal maritime law, not the law of the State of Alabama. Id., at 409, 74 S.Ct., at 204—205. Whether federal maritime law governed this accident in turn depends on whether this is a case within the admiralty and maritime jurisdiction conferred on the district courts by the Constitution and the jurisdictional statutes. More precisely, the threshold issue is whether maritime law governs accidents suffered by a longshoreman who is injured on the dock by allegedly defective equipment owned and operated by his stevedore employer. We hold that under the controlling precedents, federal maritime law does not govern this accident. Nor, in the absence of congressional guidance, are we now inclined to depart from prior law and extend the reach of the federal law to pier-side accidents caused by a stevedore's pier-based equipment.
4
The historic view of this Court has been that the maritime tort jurisdiction of the federal courts is determined by the locality of the accident and that maritime law governs only those torts occurring on the navigable waters of the United States. Maritime contracts are differently viewed, but as Mr. Justice Story remarked long ago:
5
'In regard to torts I have always understood, that the jurisdiction of the admiralty is exclusively dependent upon the locality of the Act. The admiralty has not, and never (I believe) deliberately claimed to have any jurisdiction over torts, except such as are maritime torts, that is, such as are committed on the high seas, or on waters within the ebb and flow of the tide.' Thomas v. Lane, 23 Fed.Cas. pp. 957, 960, No. 13,902 (C.C.Me. 1813).
The view has been constantly reiterated.2
6
'The general doctrine that in contract matters admiralty jurisdiction depends upon the nature of the transaction and in tort matters upon the locality, has been so frequently asserted by this court that it must now be treated as settled.' Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 476, 42 S.Ct. 157, 158, 66 L.Ed. 321 (1922).
7
The maritime law was thought to reach '(e)very species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters * * *.' Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 60, 34 S.Ct. 733, 734, 58 L.Ed. 1208 (1914). But, accidents on land were not within the maritime jurisdiction as historically construed by this Court.3 Piers and docks were consistently deemed extensions of land;4 injuries inflicted to or on them were held not compensable under the maritime law. The Plymouth, 3 Wall. 20, 36, 18 L.Ed. 125 (1866); Ex parte Phenix Insurance Co., 118 U.S. 610, 618—619, 7 S.Ct. 25, 28—29, 30 L.Ed. 274 (1886); Johnson v. Chicago & Pacific Elevator Co., 119 U.S. 388, 397, 7 S.Ct. 254, 258, 30 L.Ed. 447 (1886); Cleveland Terminal & Valley R. Co. v. Cleveland S.S. Co., 208 U.S. 316, 320, 28 S.Ct. 414, 415, 52 L.Ed. 508 (1908). The gangplank has served as a rough dividing line between the state and maritime regimes.
8
In defense of this boundary and the exclusive jurisdiction of the maritime law, the Court twice rejected congressional efforts to apply state workmen's compensation statutes to shipboard injuries suffered by maritime workers and longshoremen.5 Accepting these decisions, Congress passed the Longshoremen's and Harbor Workers' Compensation Act6 in 1927, providing a system of compensation for longshoremen injured on navigable waters but anticipating that dockside accidents would remain under the umbrella of state law and state workmen's compensation systems. Nacirema Operating Co. v. Johnson, 396 U.S. 212, 217—219, 90 S.Ct. 347, 351—352, 24 L.Ed.2d 371 (1969); South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 256—257, 60 S.Ct. 544, 547—548, 84 L.Ed. 732 (1940). The relative roles of state and federal law nevertheless remained somewhat confused on the seaward side of the pier.7 But shoreward, absent legislation, the line held fast. The Court refused to permit recovery in admiralty even where a ship or its gear, through collision or otherwise, caused damage to persons ashore or to bridges, docks, or other shore-based property. The Plymouth, supra; Cleveland Terminal & Valley R. Co. v. Cleveland S.S. Co., supra; The Troy, 208 U.S. 321, 28 S.Ct. 416, 52 L.Ed. 512 (1908); Martin v. West, 222 U.S. 191, 32 S.Ct. 42, 56 L.Ed. 159 (1911).
9
Congress was dissatisfied with these decisions and passed the Admiralty Extension Act of 1948 specifically to overrule or circumvent this line of cases.8 The law as enacted provided that '(t)he admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.' 62 Stat. 496, 46 U.S.C. § 740. The statute survived constitutional attack in the lower federal courts9 and was applied without question by this Court in Gutierrez, supra, to provide compensation for a longshoreman injured on a dock by defective cargo containers being unloaded from a ship located on navigable waters. No case in this Court has sustained the application of maritime law to the kind of accident that occurred in this case. State Industrial Comm'n v. Nordenholt Corp., 259 U.S. 263, 42 S.Ct., 473, 66 L.Ed. 933 (1922), has not been overruled. There, the Court held that compensation for a longshoreman injured when he slipped on a dock while stacking bags of cement that had been unloaded from a ship was governed by local law, not federal maritime law.
10
It is argued, however, that if a longshoreman may recover for unseaworthiness if injured on a ship in the course of the unloading process, Seas Shipping Co. v. Sieracki, supra, and if he has an unseaworthiness claim for injuries sustained on the pier and caused by the ship's unloading gear, Gutierrez, supra, he is also entitled to sue in admiralty when he is injured on the dock by his own employer's equipment at the time he is engaged in the service of a ship located on navigable waters. Sieracki, supra, however, did not call into question the extent of federal admiralty and maritime jurisdiction since the accident there occurred on navigable waters.10 And in Gutierrez, supra, federal admiralty jurisdiction was clearly present since the Admiralty Extension Act on its face reached the injury there involved. The decision in Gutierrez turned, not on the 'function' the stevedore was performing at the time of his injury, but, rather, upon the fact that his injury was caused by an appurtenance of a ship, the defective cargo containers, which the Court held to be an 'injury, to person * * * caused by a vessel on navigable water' which was consummated ashore under 46 U.S.C. § 740. The Court has never approved an unseaworthiness recovery for an injury sustained on land merely because the injured longshoreman was engaged in the process of 'loading' or 'unloading.'11 Nacirema Operating Co. v. Johnson, 396 U.S., at 223, 90 S.Ct., at 354, a case decided serveral years after Gutierrez, makes this quite clear:
11
'There is much to be said for uniform treatment of longshoremen injured while loading or unloading a ship. But even construing the Extension Act to amend the Longshoremen's Act would not effect this result, since longshoremen injured on a pier by pier-based equipment would still remain outside the Act.'
12
See also Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 360, 89 S.Ct. 1835, 1839—1840, 23 L.Ed.2d 360 (1969).
13
We are not inclined at this juncture to disturb the existing precedents and to extend shoreward the reach of the maritime law further than Congress has approved. We are dealing here with the intersection of federal and state law. As the law now stands, state law has traditionally governed accidents like this one. To afford respondent a maritime cause of action would thus intrude on an area that has heretofore been reserved for state law, would raise difficult questions concerning the extent to which state law would be displaced or preempted, and would furnish opportunity for circumventing state workmen's compensation statutes. In these circumstances, we should proceed with caution in construing constitutional and statutory provisions dealing with the jurisdiction of the federal courts. As the Court declared in Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248 (1934), 'The power reserved to the states, under the Constitution, to provide for the determination of controversies in their courts, may be restricted only by the action of Congress in conformity to the judiciary sections of the Constitution * * *. Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which (a federal) statute has defined.' See also Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 379—380, and 408, 79 S.Ct. 468, 483—484, 498—499, 3 L.Ed.2d 368 (Brennan, J., dissenting and concurring) (1959).
14
That longshoremen injured on the pier in the course of loading or unloading a vessel are legally distinguished from longshoremen performing similar services on the ship is neither a recent development nor particularly paradoxical. The maritime law is honeycombed with differing treatment for seamen and longshoremen, on and off the ship,12 and affirmance of the Court of Appeals would not equalize the remedies that both this Court and Congress have recognized are available to longshoremen injured on navigable waters and those injured ashore, whether in service of a ship or not.13 In part, this differential treatment stems from the geographical and historical accident that personal injuries on land are covered, for the most part, by state substantive law while such injuries on navigable water are generally governed by federal maritime law. These two bodies of law do overlap and interpenetrate in some situations, and the amphibious nature of the longshoreman's occupation creates frequent taxonomic problems. In the present case, however, the typical elements of a maritime cause of action are particularly attenuated: respondent Law was not injured by equipment that was part of the ship's usual gear or that was stored on board, the equipment that injured him was in no way attached to the ship, the forklift was not under the control of the ship or its crew, and the accident did not occur aboard ship or on the gangplank. Affirmance of the decision below would raise a host of new problems as to the standards for and limitations on the applicability of maritime law to accidents on land.14 At least in the absence of explicit congressional authorization, we shall not extend the historic boundaries of the maritime law.
15
Without necessarily disagreeing with the proposition that the hazards of the longshoreman's occupation make him especially deserving of a remedy dispensing with proof of fault,15 we are contrained to note that the longshoreman already has a remedy under state workmen's compensation laws that does not depend upon proving derelictions on the part of his employer. Recovery without proving negligence is not the issue here; nor is it the equities of the injured longshoreman's position as against those of the shipowner who has had and exercises no control whatsoever over the use of the stevedore's equipment on the dock. What is at issue is the amount of the recovery, not against a shipowner, but against the stevedore employer. As this case illustrates, the shipowner's liability for unseaworthiness would merely be shifted, with attendant transaction costs, to the stevedore by way of a third-party action for indemnity. Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). The State's own arrangements for compensating industrial accidents would be effectively circumvented.
16
Perhaps such laws provide inadequate benefits, but we are poorly positioned to conclude that they do or for that reason to give special remedies to longshoremen when other employees operating forklifts for other employers in perhaps equally hazardous circumstances are left to the mercies of state law. Claims like these are best presented in the legislative forum, not here.
17
This is particularly true since extending the constitutional boundaries of the maritime law would not require Congress to make an equivalent extension of the jurisdiction of the federal courts sitting in admiralty. Congress might well prefer not to extend the jurisdiction of the federal courts. On the other hand, if denying federal remedies to longshoremen injured on land is intolerable, Congress has ample power under Arts. I and III of the Constitution to enact a suitable solution.16
18
Reversed.
19
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN concurs, dissenting.
20
Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297, involved an injury to a longshoreman while he was on the dock unloading the ship. The injury was not inflicted by a defective appliance of the ship. He merely slipped on loose beans spilled on the dock from defective cargo containers belonging to the ship. Here the longshoreman was engaged in a phase of a loading operation; he was on the dock stacking cargo for loading and the appliance causing the injury belonged to the stevedore company.
21
The Court of Appeals properly concluded that the work was part of the loading process and that therefore the longshoreman was in the service of the ship. That gives pragmatic, realistic meaning to the concept of loading and avoids the narrow, grudging, hypertechnical definition.
22
Loading activity that involves work on the ship and on the dock. Longshoremen are both shipside workers and shoreside workers and move back and forth from deck to dock. At times an individual worker may be using the ship's appliances and a moment later the stevedore's appliances. But the work does not change in character. For example, although prior to his injury Law had nor mally been involved in loading or unloading, his specific assignments varied. On some days he was assigned to drive a forklift on board ship. On others, such as the day of the injury, he shuttled cargo between various points on the dock during the loading process. Respondent was subject to all the risks and hazards of loading the ship; and the humanitarian policy of the admiralty law has been to allow those who so service the ship to receive the protections usually afforded that class.
23
Equipment need not belong to the ship to be an appurtenance of the ship; and it may be such even though it belongs to the stevedore. We so held in Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798,1 over the strenuous dissent of Mr. Justice Burton, joined by Mr. Justice Frankfurter and Mr. Justice Jackson. The critical question is whether the injury occurred during loading or unloading.2 We there allowed recovery for injury to a longshoreman which occurred while he was loading the ship on the deck and which was caused by a defective block used by the stevedore company. And we followed that decision in Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120, the same three Justices dissenting.
24
I would adhere to our decisions in the Petterson and Rogers cases and affirm the judgment of the Court of Appeals.
APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING
25
This Court's decisions have rather consistently reflected the principle that because loading and unloading of vessels are abnormally dangerous such risks ought to be placed initially upon the shipowners and ultimately passed on through higher prices to the customers of the shipping industry.1 See International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157 (1926); Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208 (1914). The most well-known explication of this principle was advanced in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 93—96, 66 S.Ct. 872, 876—878, 90 L.Ed. 1099 (1946), which held that longshoremen, as well as seamen, were entitled to recover under the doctrine of unseaworthiness for injuries sustained aboard ship:
26
'That the liability may not be either so founded or so limited would seem indicated by the stress the cases uniformly place upon its relation, both in character and in scope, to the hazards of marine service which unseaworthiness places on the men who perform it. These, together with their helplessness to ward off such perils and the harshness of forcing them to shoulder alone the resulting personal disability and loss, have been thought to justify and to require putting their burden, in so far as it is measurable in money, upon the owner regardless of his fault. Those risks are avoidable by the owner to the extent that they may result from negligence. And beyond this he is in position, as the worker is not, to distribute the loss in the shipping community which receives the service and should bear its cost.
27
'All the considerations which gave birth to the liability and have shaped its absolute character dictate that the owner should not be free to nullify it by parcelling out his operations to intermediary employers whose sole business is to take over portions of the ship's work or by other devices which would strip the men performing its service of their historic protection. The risks themselves arise from and are incident in fact to the service, not merely to the contract pursuant to which it is done. The brunt of loss cast upon the worker and his dependents is the same, and is as inevitable, whether his pay comes directly from the shipowner or only indirectly through another with whom he arranges to have it done. The latter ordinarily has neither right nor opportunity to discover or remove the cause of the peril and it is doubtful, therefore, that he owes to his employees, with respect to these hazards, the employer's ordinary duty to furnish a safe place to work, unless perhaps in cases where the perils are obvious or his own action creates them. If not, no such obligation exists unless it rests upon the owner of the ship. Moreover, his ability to distribute the loss over the industry is not lessened by the fact that the men who do the work are employed and furnished by another. Historically the work of loading and unloading is the work of the ship's service, performed until recent times by members of the crew. Florez v. The Scotia, D.C., 35 F. 916; The Gilbert Knapp, D.C., 37 F. 209, 210; The Seguranca, D.C., 58 F. 908, 909. That the owner seeks to have it done with the advantages of more modern divisions of labor does not minimize the worker's hazard and should not nullify his protection.'
28
Although subsequent holdings sustaining the applicability of the doctrine of unseaworthiness might alternatively have been grounded in more mechanical rules, the language of the cases has instead been the broader principle explicated in Sieracki. For example, in Reed v. The Yaka, 373 U.S. 410, 414—415, 83 S.Ct. 1349, 1353, 10 L.Ed.2d 448 (1963), holding that a longshoreman was not deprived by the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 U.S.C. § 901 et seq., of his unseaworthiness remedy merely because the shipowner happened also to be his stevedore-employer, the Court relied upon the policy expressed in Sieracki:
29
'(W)e pointed out several times in the Sieracki case, which has been consistently followed since, that a shipowner's obligation of seaworthiness cannot be shifted about, limited, or escaped by contracts or by the absence of contracts and that the shipowner's obligation is rooted, not in contracts, but in the hazards of the work. (Emphasis added.) Similarly, the 'humanitarian policy' rather than the more mechanical, albeit historical, maritime tests was the starting point in Waldron v. Moore-McCormack Lines, 386 U.S. 724, 728, 87 S.Ct. 1410, 1412, 18 L.Ed.2d 482 (1967):
30
'When this Court extended the shipowner's liability for unseaworthiness to longshoremen performing seamen's work, Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099—either on board or on the pier, Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297, either with the ship's gear or the stevedore's gear, Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, either as employees of an independent stevedore or as employees of a shipowner pro hac vice, Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448—we noted that 'the hazards of marine service, the helplessness of the men to ward off the perils of unseaworthiness, the harshness of forcing them to shoulder their losses alone, and the broad range of the 'humanitarian policy' of the doctrine of seaworthiness,' id., at 413, 83 S.Ct., at 1352, should prevent the shipowner from delegating, shifting, or escaping his duty by using the men or gear of others to perform the ship's work.'
31
A straightforward application of the sieracki principle to the instant circumstances would clearly warrant recovery by Law, if his allegations are proved at trial, under the doctrine of unseaworthiness. He was driving a forklift laden with cargo which was to be hosited aboard the S.S. Sagamore Hill. As he drove along the dock, a defective overhead rack became disengaged and crashed upon his head. The Court of Appeals correctly concluded that his activity had been part of the loading process and was protected by the Sieracki principle. And at least two other circuits have made similar conclusions under analogous conditions. See Huff v. Matson Navigation Co., 338 F.2d 205 (CA9 1964); Spann v. Lauritzen, 344 F.2d 204 (CA3 1965); see also Chagois v. Lykes Bros. S.S. Co., 432 F.2d 388 (CA5 1970).
32
By ignoring completely the underlying reasoning of these cases and by focusing instead on the narrow facts involved in each of them, the majority gives short shrift to the policy of distributing loading and unloading risks of personal injury to the users of the shipping industry. The Court places special emphasis on the alignment in this case of three factual elements: (a) an injury to a longshoreman (rather than a seaman), (b) upon a dock (rather than upon a deck), (c) caused by defective equipment supplied by the stevedoring contractor (rather than by the shipowner). Thus the majority finds Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963), inapposite even though it involved both the first and second conditions,2 and presumably would view Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954), inapposite even though it concerned both the first and last conditions.3 But the mere fact that this Court has never decided a controversy composed of these precise elements is not an adequate reason for excepting such a circumstance from the scope of the Sieracki principle.
33
The majority offers three reasons for the exception. First, the Court seems to argue that the Sieracki principle has already been limited by Nacirema Operating Co. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969), holding that Congress did not intend that the Longshoremen's and Harbor Workers' Compensation Act would apply to any injury occurring off a ship. In Johnson, however, the Court clearly acknowledged that Congress' constitutional maritime power does not cease at the shoreline. Id., at 223—224, 90 S.Ct., at 353 354. And, obviously, the reach of 28 U.S.C. § 1333, conferring upon district courts original admiralty and maritime jurisdiction, as extended by the Admiralty Extension Act of 1948, 62 Stat. 496, 46 U.S.C. § 740, is not governed by the reach of the Harbor Workers' Act. In fact, the Court, while denying a compensation remedy under the Harbor Workers' Act, noted that an action for unseaworthiness would lie against the ship. 396 U.S., at 223 n. 19, 90 S.Ct., at 354.
34
The primary reason offered to support the majority's exception to the Sieracki principle is that it is for Congress rather than the judiciary to determine the adequacy of state workmen's compensation laws, which, under the Court's holding, will now be the only remedy available to a longshoreman injured ashore during loading or unloading by pier-based equipment of the stevedoring Contractor. See Nacirema Operating Co. v. Johnson, supra. While Congress, of course, is better equipped for precison analysis than a judicial forum, the courts have not been unaware that state workman's compensation statutes provide puny awards compared to jury evaluations of personal injuries. See W. Prosser, The Law of Torts 555 (3d ed. 1964). Limited recovery was thought to have been necessary by most state legislatures in order to offset the imposition against an employer's liability regardless of fault. In keeping with admiralty courts' traditional solicitude for those injured in the maritime trade,4 the Court did not defer to Congress in other instances approving longshoremen's recoveries even though it might also have been argued in those cases that the Harbor Workers' Act or state schemes might have been adequate.5 No reason is suggested why deference is needed in these circumstances. In any event, referring a litigant to Congress is normally appropriate where the Court is reluctant to accept his invitation to upset an established rule. Inasmuch as the Sieracki-Petterson-Gutierrez principle would appear to be the controlling precedent, the appropriate referral to the legislative process ought to be Victory Carriers, not Law.
35
Finally the majority says that: 'Affirmance of the decision below would raise a host of new problems as to the standards for and limitations on the applicability of maritime law to accidents on land.' Such problems were quickly brushed aside in Gutierrez, supra, 373 U.S., at 210, 83 S.Ct., at 1188, in which '(v)arious far-fetched hypotheticals (were) raised, such as a suit in admiralty for an ordinary automobile accident involving a ship's officer on ship business in port, or for someone's slipping on beans that continue to leak from (defective cargo) bags in * * * Denver.' Said the Court: 'We think it sufficient for the needs of this occasion to hold that the case is within the maritime jurisdiction under 46 U.S.C. § 740 when * * * it is alleged that the shipowner commits a tort while or before the ship is being unloaded, and the impact of which is felt ashore at a time and place not remote from the wrongful act.' As in Gutierrez, the accident here occurred on the dock, and the specter of troubling hypotheticals elsewhere ought not to deter landward extension to loading or unloading injuries on the dock. Moreover, if a brightline test is desirable, then the Sieracki policy would be less offended by a bright line drawn around both the ship and the dock than by a line cast only about the vessel. Statistical evidence suggests that the great bulk of high-risk maritime activity occurs on the ship and the adjoining pier. National Academy of Sciences—National Research Council, Maritime Cargo Transportation Conference, Longshore Safety Survey 75 (1956). See Comment, Risk Distribution and Seaworthiness, 75 Yale L.J. 1174, 1190 (1966).
1
The District Court and the Court of Appeals dealt only with the unseaworthiness claim; the District Court did not pass on the question of whether or not the forklift was in fact defective. 432 F.2d 376, 378 n. 2 (CA5 1970).
2
Waring v. Clarke, 5 How, 441, 463—464, 12 L.Ed. 226 (1847); New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 394, 12 L.Ed. 465 (1848); The Propeller Commerce, 1 Black 574, 579, 17 L.Ed. 107 (1862); The Plymouth, 3 Wall. 20, 33, 18 L.Ed. 125 (1866); The Rock Island Bridge, 6 Wall. 213, 215, 18 L.Ed. 753 (1867); The Belfast, 7 Wall. 624, 637, 19 L.Ed. 266 (1869); Ex parte Easton, 95 U.S. 68, 72, 24 L.Ed. 373 (1877); Leathers v. Blessing, 105 U.S. 626, 630, 26 L.Ed. 1192 (1882); Ex parte Phenix Insurance Co., 118 U.S. 610, 618, 7 S.Ct. 25, 28, 30 L.Ed. 274 (1886); Johnson v. Chicago & Pacific Elevator Co., 119 U.S. 388, 397, 7 S.Ct. 254, 258, 30 L.Ed. 447 (1886); Panama R. Co. v. Napier Shipping Co., 166 U.S. 280, 285, 17 S.Ct. 572, 574, 41 L.Ed. 1004 (1897); The Blackheath, 195 U.S. 361, 367, 25 S.Ct. 46, 48, 49 L.Ed. 236 (1904); Cleveland Terminal & Valley R. Co. v. Cleveland S.S. Co., 208 U.S. 316, 319, 28 S.Ct. 414, 415, 52 L.Ed. 508 (1908); Martin v. West, 222 U.S. 191, 197, 32 S.Ct. 42, 43, 56 L.Ed. 159 (1911); Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 59—60, 34 S.Ct. 733, 734, 58 L.Ed. 1208 (1914); Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 476, 42 S.Ct. 157, 158, 66 L.Ed. 321 (1922); T. Smith & Son v. Taylor, 276 U.S. 179, 181, 48 S.Ct. 228, 229, 72 L.Ed. 520 (1928); O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 41, 63 S.Ct. 488, 491, 87 L.Ed. 596 (1943); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409, 74 S.Ct. 202, 204, 98 L.Ed. 143 (1953); Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S.Ct. 406, 408, 3 L.Ed.2d 550 (1959); Hess v. United States, 361 U.S. 314, 318 n. 7, 80 S.Ct. 341, 345, 4 L.Ed.2d 305 (1960); Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 360—361, 89 S.Ct. 1835, 1839—1840, 23 L.Ed.2d 360 (1969); Nacirema Operating Co. v. Johnson, 396 U.S. 212, 214—215, 90 S.Ct. 347, 349—350, 24 L.Ed.2d 371 (1969); Thomas v. Lane, 23 Fed.Cas. pp. 957, 960, No. 13,902 (CC Me.1813) (Story, J.); De Lovio v. Boit, 7 Fed.Cas. pp. 418, 420, No. 3,776 (CC Mass.1815) (Story, J.); Lake Shore & M.S.R. Co. v. The Neil Cochran, 14 Fed.Cas. pp. 949, 950 No. 7,996 (ND Ohio 1872); The Ottawa 18 Fed.Cas. pp. 906, 907, No. 10,616 (ED Mich.1872); Holmes v. Oregon & C.R. Co., 5 F. 75, 77 (Ore.1880); The Arkansas, 17 F. 383, 384 (SD Iowa 1883); The F. & P.M. No. 2, 33 F. 511, 513 (ED Wis.1888); The H. S. Pickands, 42 F. 239, 240 (ED Mich.1890); Hermann v. Port Blakely Mill Co., 69 F. 646, 647 (ND Cal.1895); The Strabo, 90 F. 110, 113 (EDNY 1898); Chapman v. City of Grosse Pointe Farms, 385 F.2d 962, 963 (CA 6 1967); Scott v. Eastern Air Lines, Inc., 399
3
The Plymouth, supra; The Troy, 208 U.S. 321, 28 S.Ct. 416, 52 L.Ed. 512 (1908); Phoenix Construction Co. v. The Steamer Poughkeepsie, 212 U.S. 558, 29 S.Ct. 687, 53 L.Ed. 651 (1908); T. Smith & Son v. Taylor, supra; Rodrigue v. Aetna Casualty & Surety Co., supra, 395 U.S., at 360, 89 S.Ct., at 1839—1840; Hastings v. Mann, 340 F.2d 910 (CA 4), cert. denied, 380 U.S. 963, 85 S.Ct. 1106, 14 L.Ed.2d 153 (1965). 'When an employee working on board a vessel in navigable waters, sustains personal injuries there, and seeks damages from the employer, the applicable legal principles are very different from those which would control if he had been injured on land while unloading the vessel. In the former situation the liability of employer (sic) must be determined under the maritime law; in the latter, no general maritime rule prescribes the liability, and the local law has always been applied.' State Industrial Comm'n v. Nordenholt Corp., supra, 259 U.S., at 272—273, 42 S.Ct., at 474.
F.2d 14, 31 (CA 3 1967) (concurring opinion); Fireman's Fund American Insurance Co. v. Boston Harbor Marina, Inc., 406 F.2d 917, 919 (CA 1 1969); Penn Tanker Co. v. United States, 409 F.2d 514, 518 (CA 5 1969). 'The jurisdiction of courts of admiralty, in matters of contract, depends upon the nature and character of the contract; but in torts, it depends entirely on locality.' Philadelphia, Wilmington & Baltimore R. Co. v. Philadelphia & Havre de Grace Steam Towboat Co., 23 How. 209, 215, 16 L.Ed. 433 (1860). 'In (maritime) torts * * * jurisdiction (of federal admiralty courts) depends solely upon the place where the tort was committed, which must have been upon the high seas or other navigable waters.' State Industrial Comm'n v. Nordenholt Corp., 259 U.S. 263, 271, 42 S.Ct. 473, 66 L.Ed. 933 (1922).
4
Nacirema Operating Co. v. Johnson, supra, 396 U.S., at 214 215, 90 S.Ct., at 349—350; Swanson v. Marra Bros., Inc., 328 U.S. 1, 6, 66 S.Ct. 869, 871, 90 L.Ed. 1045 (1946); Minnie v. Port Huron Terminal Co., 295 U.S. 647, 648, 55 S.Ct. 884, 885, 79 L.Ed. 1631 (1935); T. Smith & Son v. Taylor, supra, 276 U.S., at 182, 48 S.Ct., at 229; State Industrial Comm'n v. Nordenholt Corp., supra, 259 U.S., at 275, 42 S.Ct., at 475; 1 E. Benedict, The Law of American Admiralty §§ 28, 29 (6th ed. 1940); G. Gilmore & C. Black, The Law of Admiralty §§ 6—46, 7—17 (1957); G. Robinson, Handbook of Admiralty Law in the United States § 11 (1939).
5
Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834 (1920); Washington v. W. C. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646 (1924). These congressional attempts were sparked by an earlier Supreme Court decision, Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), which had held unconstitutional a New York workmen's compensation law as applied to a stevedore injured on the gangplank of a ship.
6
44 Stat. 1424, 33 U.S.C. §§ 901—950. The Act's coverage is limited to those injuries and deaths 'occurring upon the navigable waters of the United States (including any dry dock).' 33 U.S.C. § 903(a).
7
This confusion may be traced to the Court's modifying the doctrine of Southern Pacific Co. v. Jensen, supra, by preserving certain state remedies for accidents and deaths occurring on navigable waters. See Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210 (1921); Grant Smith-Porter Ship Co. v. Rohde, supra; Parker v. Motor Boat Sales, Inc., 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184 (1941); Davis v. Dept. of Labor and Industries, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942); Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962). All of these cases of overlapping statefederal jurisdiction have occurred on the seaward side of the Jensen line, however. The Court early upheld the power of States to provide workmen's compensation to longshoremen injured by accidents occurring on the dock, under the theory that since the pier is part of the land, application of state law here would not conflict with the uniform federal maritime law applied on navigable waters. State Industrial Comm'n v. Nordenholt Corp., supra. In Nacirema Operating Co. v. Johnson, supra, the Court held that by limiting coverage under § 3(a) of the Act, 33 U.S.C. § 903(a), to accidents occurring 'upon * * * navigable waters,' Congress had not intended to cover accidents that occurred on piers permanently affixed to the shore: 'Calbeck made it clear that Congress intended to exercise its full jurisdiction seaward of the Jensen line and to cover all injuries on navigable waters, whether or not state compensation was also available in particular situations. * * * But removing uncertainties as to the Act's coverage of injuries occurring on navigable waters is a far cry from construing the Act to reach injuries on land traditionally within the ambit of state compensation acts.' 396 U.S., at 220—221, 90 S.Ct., at 353.
8
62 Stat. 496, 46 U.S.C. § 740. The House Report on the Admiralty Extension Act stated that the Act was being passed to remedy the 'inequities' of cases such as Cleveland Terminal & Valley R. Co., supra; The Troy, supra; and Martin v. West, supra, which had held there was no admiralty jurisdiction to provide a remedy for damage done by ships on navigable water to land structures. H.R.Rep.No. 1523, 80th Cong., 2d Sess., 2 (1948). Congress had also passed the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, providing a statutory remedy for members of a ship's crew injured in the course of their employment. The Act covered crewmen injured ashore as well as aboard and was considered by this Court an extension of the ancient remedy of maintenance and cure which itself was a traditional and important exception to the usual rule that maritime law does not provide remedies for injuries on land. O'Donnell v. Great Lakes Dredge & Dock Co., supra. Longshoremen, of course, are not covered by the Jones Act.
9
United States v. Matson Nav. Co., 201 F.2d 610, 614—616 (CA 9 1953); American Bridge Co. v. The Gloria O, 98 F.Supp. 71, 73—74 (EDNY 1951); Fematt v. City of Los Angeles, 196 F.Supp. 89, 93 (SD Cal. 1961).
10
In Sieracki, the Court concluded:
'(F)or injuries incurred while working on board the ship in navigable waters the stevedore is entitled to the seaman's traditional and statutory protections, regardless of the fact that he is employed immediately by another than the onwer. For these purposes he is, in short, a seaman because he is doing a seaman's work and incurring a seaman's hazards.' 328 U.S., at 99, 66 S.Ct., at 879 (footnote omitted).
11
In Gutierrez, the Court concluded that 'things about a ship, whether the hull, the decks, the machinery, the tools furnished, the stowage, or the cargo containers, must be reasonably fit for the purpose for which they are to be used.' 373 U.S., at 213, 83 S.Ct., at 1190, 10 L.Ed.2d 297 (emphasis added). In Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954), aff'g 205 F.2d 478 (CA9 1953), and Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120 (1954), rev'g 205 F.2d 57 (CA3 1954), the Court decided without opinion that an unseaworthiness recovery would be possible to a longshoreman injured by equipment brought aboard ship by the stevedore company. In both these cases, the accident occurred on navigable water: both longshoremen were injured while in the hold of a ship by defective apparatus attached to the ship's gear.
12
The Longshoremen's and Harbor Workers' Compensation Act does not cover seamen (who are defined there as 'master(s) or member(s) of a crew of any vessel,' 33 U.S.C. § 903(a)(1)), and the compensation remedy provided by the Longshoremen's Act is a stevedore's exclusive remedy against his employer for shipboard injuries. 33 U.S.C. § 905. Representatives of maritime employees successfully opposed the efforts of Congress to include seamen under the Longshoremen's Act, see Nogueira v. New York, New Haven & Hatford R. Co., 281 U.S. 128, 136, 50 S.Ct. 303, 305, 74 L.Ed. 754 (1930); Warner v. Goltra, 293 U.S. 155, 159—160, 55 S.Ct. 46, 48, 79 L.Ed. 254 (1934), since seamen preferred to remain free to proceed against their employer under the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, and under suits for unseaworthiness and/or maintenance and cure. The latter remedy has traditionally been available to seamen but not to longshoremen, Weiss v. Central Railroad Co., 235 F.2d 309, 311 (CA2 1956), and the Court has stated that the remedies of an employee covered by the Longshoremen's Act and those of a seaman covered under the maritime doctrine of maintenance and cure are mutually exclusive. Norton v. Warner Co., 321 U.S. 565, 570, 64 S.Ct. 747, 750, 88 L.Ed. 931 (1944). The Jones Act gives seamen, at their election, the benefit of the provisions of the Federal Employers' Liability Act, 35 Stat. 65, 45 U.S.C. § 51 et seq. Longshoremen now have no such election. Swanson v. Marra Bros., Inc., 328 U.S., at 7, 66 S.Ct., at 872. Although longshoremen may not obtain maintenance and cure, there are certain circumstances under which they may recover for injuries caused by unseaworthiness whether the accident occurred on board ship, Seas Shipping Co. v. Sieracki, supra, or on the dock, Guiterrez v. Waterman S.S. Corp., supra.
13
See, e.g., Nacirema Operating Co. v. Johnson, 396 U.S., at 217—220, 90 S.Ct., at 351—352.
14
The Fifth Circuit's expansive definition of loading (432 F.2d, at 384) would be difficult to delimit. Already, summary judgment has been denied the shipowner where a warehouseman sued on an unseaworthiness theory after he had been injured by a power shovel he was using to transfer grain from a railroad car to a warehouse where it would be subsequently taken on board a ship. Olvera v. Michalos, 307 F.Supp. 9 (SD Tex.1968). Summary judgment has also been denied when a longshoreman brought an unseaworthiness suit after he had been injured inside a pier shed; the 'squeeze lift' truck he was driving struck an unidentified object on the shed floor causing the steering wheel to spin around and shatter plaintiff's wrist. McNeil v. A/S Havtor, 326 F.Supp. 226 (ED Pa.1971). The attempt to define the process of 'loading' for purposes of determining whether a longshoreman injured on shore can recover on an unseaworthiness claim has produced substantial confusion in the lower courts; the cases are impossible to rationalize. Denying compensation: Forkin v. Furness Withy & Co., 323 F.2d 638 (CA2 1963), McKnight v. N. M. Paterson & Sons, 286 F.2d 250 (CA6 1960), cert. denied, 368 U.S. 913, 82 S.Ct. 189, 7 L.Ed.2d 130 (1961); Henry v. S. S. Mount Evans, 227 F.Supp. 408 (Md.1964); Sydnor v. Villain & Fassio e Compania, 323 F.Supp. 850 (Md.1971). Awarding compensation or denying summary judgment for defendant: Spann v. Lauritzen, 344 F.2d 204 (CA3), cert. denied, 382 U.S. 938, 86 S.Ct. 386, 15 L.Ed.2d 348 (1965); Chagois v. Lykes Bros. S.S. Co., 432 F.2d 388 (CA5 1970); Olvera v. Michalos, supra; McNeil v. A/S Havtor, supra. Reliance upon the gangplank line as the presumptive boundary of admiralty jurisdiction, except for cases in which a ship's appurtenance causes damage ashore, recognizes the traditional limitations of admiralty jurisdiction, see nn. 2 and 3, supra, and decreases the arbitrariness and uncertainties surrounding amorphous definitions of 'loading.' Such uncertainties may prejudice both the longshoreman and the employer.
15
A 1956 survey, based on 1954 data, concluded that the stevedoring occupation had a higher injury frequency rate than any other high-hazard industry studied. National Academy of Sciences-National Research Council, Maritime Cargo Transportation Conference, Longshore Safety Survey Report, Longshore Safety Survey: A Survey of Occupational Hazards in the Stevedore Industry 23 (1956). See also U.S. Dept. of Labor, Bureau of Labor Statistics, Handbook of Labor Statistics 1971, p. 345, for a comparison of the work-injury rate (both by severity and frequency) in the marine cargo handling industry with that in other industries. Cf. Note, Risk Distribution and Seaworthiness, 75 Yale L.J. 1174 (1966).
16
Cf., e.g., The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 457—458, 13 L.Ed. 1058 (1852); Richardson v. Harmon, 222 U.S. 96, 97, 32 S.Ct. 27, 56 L.Ed. 110 (1911); Panama R. Co. v. Johnson, 264 U.S. 375, 385—388, 44 S.Ct. 391, 393—394, 68 L.Ed. 748 (1924); Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 52, 55 S.Ct. 31, 41, 79 L.Ed. 176 (1934); Swanson v. Marra Bros., Inc., supra, 328 U.S., at 5, 66 S.Ct., at 871; O'Donnell v. Great Lakes Dredge & Dock Co., supra, 318 U.S., at 40—41, 63 S.Ct., at 490—491.
1
Accord: Spann v. Lauritzen, 3 Cir., 344 F.2d 204; Chagois v. Lykes Bros. S.S. Co., 5 Cir., 432 F.2d 388; Huff v. Matson Navigation Co., 9 Cir., 338 F.2d 205; Thorson v. Inland Navigation Co., 9 Cir., 270 F.2d 432; Ace Tractor & Equipment Co. v. Olympic S.S. Co., 9 Cir., 227 F.2d 274.
2
See the Appendix to this opinion.
1
Stevedoring is one of the most accident-prone professions in American industry. According to the National Academy of Sciences-National Research Council, Maritime Cargo Transportation Conference, Longshore Safety Survey 22—23 (1956), hazardous industries have the following accident frequency rates:
Stevedoring..........................92.3 per million man hours worked
Logging............................. 74.3
Structural Steel Erection........... 47.5
Saw and Planing Mills............... 42.0
General Building.................... 37.0
See also New York Shipping Assn.; Safety Bureau, Annual Accidents (1965).
2
Accord: Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120 (1954); Spann v. Lauritzen, 344 F.2d 204 (CA3 1965); Huff v. Matson Navigation Co., 338 F.2d 205 (CA9 1964); Chagois v. Lykes Bros. S.S. Co., 432 F.2d 388 (CA5 1970).
3
Accord: Strika v. Netherlands Ministry of Traffic, 185 F.2d 555 (CA2 1950).
4
See Dixon v. The Cyrus, 7 Fed.Cas. page 755, No. 3,930 (Pa.1789). See also Peterson v. The Chandos, 4 F. 645, 650 (Or. 1880).
5
Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963); Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963); Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 198 71 L.Ed. 157 (1926); Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208 (1914).
| 78
|
404 U.S. 254
92 S.Ct. 405
30 L.Ed.2d 424
William M. O'KEEFFE, Deputy Commissioner, Sixth Compensation District, Department of Laborv.AEROJET-GENERAL SHIPYARDS, INC.
No. 71—262.
Dec. 14, 1971.
Rehearing Denied Jan. 17, 1972.
See 404 U.S. 1053, 92 S.Ct. 702.
PER CURIAM.
1
Petitioner, a Labor Department Deputy Commissioner, rejected an employee's claim against respondent under the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33 U.S.C. § 901 et seq., on the ground that the proofs failed to establish that his disability was related to conditions of his employment. Thereafter petitioner reopened the case pursuant to § 22 of the Act, 33 U.S.C. § 922. On the basis of testimony by the employee's personal physician and a commission-appointed doctor, petitioner concluded, contrary to his initial determination, that the disabling condition had in fact been 'materially aggravated and hastened' by the circumstances of employment, and awarded him compensation. The District Court sustained the award but the Court of Appeals for the Fifth Circuit, one judge dissenting, reversed. 442 F.2d 508. The Court of Appeals held that in the absence of changed conditions or new evidence clearly demonstrating mistake in the initial determination, the 'statute simply does not confer authority upon the Deputy Commissioner to receive additional but cumulative evidence and change his mind.' 442 F.2d, at 513.
2
Neither the wording of the statute nor its legislative history supports this 'narrowly technical and impractical construction.' Luckenbach S.S. Co. v. Norton, 106 F.2d 137, 138 (CA3 1939). Section 22 of the Act provides:
3
'Upon his own initiative, or upon the application of any party in interest, on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case in accordance with the procedure prescribed in respect of claims in section 919 of this title, and in accordance with such section issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation. * * *' 33 U.S.C. § 922.
4
Thus, on its face, the section permits a reopening within one year 'because of a mistake in a determination of fact.' There is no limitation to particular factual errors, or to cases involving new evidence or changed circumstances. The Act at one time did authorize reopening only on the 'ground of a change in conditions,' 44 Stat. 1437, but was amended in 1934 expressly to 'broaden the grounds on which a deputy commissioner can modify an award * * * when changed conditions or a mistake in a determination of fact makes such modification desirable in order to render justice under the act.' S.Rep.No. 588, 73d Cong., 2d Sess., 3—4 (1934); H.R.Rep.No.1244, 73d Cong., 2d Sess., 4 (1934). The plain import of this amendment was to vest a deputy commissioner with broad discretion to correct mistakes of fact, whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted.
5
Nor does our construction 'render meaningless the provision (of § 21 of the Act, 33 U.S.C. § 921) that (a compensation) order becomes final unless proceedings for review are brought within thirty days.' Case v. Calbeck, 304 F.2d 198, 201 (CA5 1962). The review authorized by § 21 is limited to the legal validity of the award; a district court may set aside an award only if it is 'not in accordance with law.' Section 21(b), 33 U.S.C. § 921(b). The 30-day limit of § 21 is not 'rendered meaningless' by setting a different time limit for a redetermination of fact. Moreover, the absence of a provision in § 21 for the judicial review of evidence confirms the need for a broad discretion in the deputy commissioner, to review factual errors in an effort 'to render justice under the act.'
6
The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.
7
It is so ordered.
8
Judgment of Court of Appeals reversed and case remanded with directions.
| 78
|
404 U.S. 249
92 S.Ct. 407
30 L.Ed.2d 418
Alan Daniel WILWORDING et al.v.Harold R. SWENSON, Warden.
No. 70—5308.
Dec. 14, 1971.
PER CURIAM.
1
On the ground that they challenged only their living conditions and disciplinary measures while confined in maximum security at Missouri State Penitentiary, and did not seek their release, petitioners' state habeas corpus petitions were dismissed. The Missouri Supreme Court affirmed. Petitioners then sought federal habeas corpus in the District Court for the Western District of Missouri. The District Court dismissed the petitions, 331 F.Supp. 1188, and the Court of Appeals for the Eighth Circuit affirmed, 439 F.2d 1331. Although petitioners had exhausted state habeas relief the Court of Appeals agreed with the District Court that the requirements of 28 U.S.C. § 2254 had not been satisfied because petitioners had not invoked any of a number of possible alternatives to state habeas including 'a suit for injunction, a writ of prohibition, or mandamus or a declaratory judgment in the state courts,' or perhaps other relief under the State Administrative Procedure Act. Id., at 1336.
2
* Section 2254 does not erect insuperable or successive barriers to the invocation of federal habeas corpus. The exhaustion requirement is merely an accommodation of our federal system designed to give the State an initial 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights. Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963). Petitioners are not required to file 'repetitious applications' in the state courts. Brown v. Allen, 344 U.S. 443, 449 n. 3, 73 S.Ct. 397, 403, 97 L.Ed. 469 (1953). Nor does the mere possibility of success in additional proceedings bar federal relief. Roberts v. LaVallee, 389 U.S. 40, 42—43, 88 S.Ct. 194, 196—197, 19 L.Ed.2d 41 (1967); Coleman v. Maxwell, 351 F.2d 285, 286 (CA6 1965). Whether the State would have heard petitioner's claims in any of the suggested alternative proceedings is a matter of conjecture; certainly no available procedure was indicated by the State Supreme Court in earlier cases. See McMichaels v. Hancock, 428 F.2d 1222, 1223 (CA1 1970). Furthermore, we are not referred to a single instance, regardless of the remedy invoked, in which the Missouri courts have granted a hearing to state prisoners on the conditions of their confinement. In these circumstances § 2254 did not require petitioners to pursue the suggested alternatives as a prerequisite to taking their claims to federal court. As Mr. Justice Rutledge stated in his concurrence in Marino v. Ragen, 332 U.S. 561, 568, 68 S.Ct. 240, 244, 92 L.Ed. 170 (1947):
3
'The exhaustion-of-state-remedies rule should not be stretched to the absurdity of requiring the exhaustion of * * * separate remedies when at the outset a petitioner cannot intelligently select the proper way, and in conclusion he may find only that none of the (alternatives) is appropriate or effective.'
II
4
Moreover, although cognizable in federal habeas corpus, see Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), petitioners' pleading may also be read to plead causes of action under the Civil Rights Acts, 42 U.S.C. § 1983, and 28 U.S.C. §§ 1343(3) and 1343(4), for deprivation of constitutional rights by prison officials. As to like actions, in an exhaustive opinion in Jackson v. Bishop, 404 F.2d 571 (CA8 1968), Mr. Justice (then Judge) Blackmun stated:
5
'These actions were instituted in 1966 by handwritten petitions employing varying titles (including 'habeas corpus'). Each plaintiff asked for the appointment of counsel and permission to proceed in forma pauperis. Those requests were granted. Appointed counsel then filed amended complaints which have been treated by all concerned as petitions for injunctive relief under the civil rights statutes, 42 US.C. § 1983 and 28 U.S.C. § 1343(3) and (4). We are satisfied as to jurisdiction. We are also satisfied, as were the district judges, that the cases are appropriately to be regarded as class actions within the scope and reach of Rule 23, Fed.R.Civ.P.' Id., at 572—573.
6
Petitioners were therefore entitled to have their actions treated as claims for relief under the Civil Rights Acts, not subject, on the basis of their allegations, to exhaustion requirements. The remedy provided by these Acts 'is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.' Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967). State prisoners are not held to any stricter standard of exhaustion than other civil rights plaintiffs. Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968). There an inmate's challenge to the confiscation of his legal materials without first seeking administrative redress was sustained. Although the probable futility of such administrative appeals was noted, we held that in 'any event, resort to these remedies is unnecessary.' Id., at 640, 88 S.Ct., at 2120. Accordingly, the motions to proceed in forma pauperis and the petition for certiorari are granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.*
7
It is so ordered.
8
Reversed and remanded with directions.
9
Mr. Justice BLACKMUN concurs in the judgment of the Court and in Part II of the Court's per curiam opinion.
10
Mr. Chief Justice BURGER, dissenting.
11
This case is singularly inappropriate for summary reversal without an adequate record, and without briefs or argument. The Court assumes without citation of authority that further resort to state remedies would be futile; the District Judge, far more familiar than we with the local situation, thought otherwise. The Court does not rest its reversal on this ground, however, for it blandly treats petitioners' habeas corpus petitions as complaints under 42 U.S.C. § 1983, an approach that petitioners' experienced counsel has studiously and appropriately avoided. Petitioners had previously filed complaints expressly under § 1983, which were denied after full hearing. It is conceded in the petition for certiorari that almost all of the claims involved in those actions underlie the instant habeas corpus proceeding; but petitioners' counsel argues that the doctrine of res judicata has no application in habeas corpus. The Court does not explain why this argument is not lost if the habeas corpus petitions are treated as complaints under § 1983.
12
I had previously thought that summary reversal was limited to cases where the error was manifest. Here, however, the Court has challenged the conclusion of the Court of Appeals largely on the basis of surmise and has gone on to reverse on a theory that the Court of Appeals was not asked to consider and presumably could not have considered.
*
It appears that petitioners did seek relief under the civil rights statutes before filing their petitions below, and that these claims were denied after a hearing. The dissent asserts that the petition for certiorari concedes 'that almost all of the claims involved in those actions underlie the instant habeas corpus proceeding.' (Emphasis supplied.) We are unable to find that concession in the petition. At page 11 of the petition the following does appear: 'Almost all of the complaints presented by (the earlier actions) had been raised in the habeas corpus petitions originally filed in the State courts underlying this Petition.' (Emphasis supplied.) Indeed, petitioners' counsel in his reply brief disclaims knowledge of what claims were presented in the cases, stating: 'As this writer did not participate as counsel in the Civil Rights Act cases and in view of the generalized nature of the claims for relief in the petitions herein, it is not known whether all of the issues intended to be presented by those petitions were presented in the Civil Rights Act cases.' Reply Brief 7. Accordingly, we must conclude that it is not clear from the record whether the issues raised in the earlier cases are the same as those presented here. The effect, if any, of those actions upon the instant cases must therefore be determined on remand.
| 01
|
404 U.S. 244
92 S.Ct. 402
30 L.Ed.2d 413
NORTH CAROLINA, Petitioner,v.Wayne Claude RICE.
No. 70—77.
Argued Oct. 12, 1971.
Decided Dec. 14, 1971.
Jacob L. Safron, Raleigh, N.C., for the petitioner.
William W. Van Alstyne, Durham, N.C., for the respondent.
PER CURIAM.
1
On July 2, 1968, respondent Rice was arrested for driving while intoxicated on a North Carolina state highway. He was tried in the General County Court of Buncombe County, convicted, and sentenced to imprisonment for nine months with sentence suspended upon payment of $100 fine and costs. On appeal he was tried de novo in the Superior Court, found guilty, and sentenced to two years' imprisonment. State post-conviction procedures were unavailing. On appeal from denial of federal habeas corpus, the Court of Appeals for the Fourth Circuit held that under North Carolina v Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), 'the more drastic sentence on the second trial (was) a denial of Federal due process, in that by discouragement it impinges upon the State-given appeal.' 434 F.2d 297, 300 (1970). Although '(h)e was completely discharged by North Carolina on January 24, 1970 * * * this did not moot the case on habeas corpus' because injurious consequences from the conviction might still obtain. Ibid. The judgment was that Rice was entitled to have the record of his conviction expunged. The State's petition for writ of certiorari was granted. 401 U.S. 1008, 91 S.Ct. 1256, 28 L.Ed.2d 544 (1971).
2
The State claims that Pearce does not apply to a situation where the more severe sentence is imposed after a trial de novo in its Superior Court. We do not reach that question, however, since the threshold issue of mootness was improperly disposed of by the Court of Appeals. Although neither party has urged that this case is moot, resolution of the question is essential if federal courts are to function within their constitutional sphere of authority. Early in its history, this Court held that it had no power to issue advisory opinions, Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436 (1792), as interpreted in Muskrat v. United States, 219 U.S. 346, 351—353, 31 S.Ct. 250, 251 252, 55 L.Ed. 246 (1911), and it has frequently repeated that federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them. Local No. 8—6, Oil Chemical and Atomic Workers Intern. Union v. Missouri, 361 U.S. 363, 367, 80 S.Ct. 391, 394, 4 L.Ed.2d 373 (1960). To be cognizable in a federal court, a suit 'must be definite and concrete, touching the legal relations of parties having adverse legal interests. * * * It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.' Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240—241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937). However, '(m)oot questions require no answer.' Missouri, Kansas & Texas R. Co. v. Ferris, 179 U.S. 602, 606, 21 S.Ct. 231, 233, 45 L.Ed. 337 (1900). Mootness is a jurisdictional question because the Court 'is not empowered to decide moot questions or abstract propositions,' United States v. Alaska S.S. Co., 253 U.S. 113, 116, 40 S.Ct. 448, 449, 64 L.Ed. 808 (1920), quoting California v. San Pablo & Tulare R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893); our impotence 'to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.' Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S.Ct. 391, 394, 11 L.Ed.2d 347 (1964). See also Powell v. McCormack, 395 U.S. 486, 496 n. 7, 89 S.Ct. 1944, 1950, 23 L.Ed.2d 491 (1969). Even in cases arising in the state courts, the question of mootness is a federal one which a federal court must resolve before it assumes jurisdiction. Henry v. Mississippi, 379 U.S. 443, 447, 85 S.Ct. 564, 567, 13 L.Ed.2d 408 (1965). Liner v. Jafco, Inc., supra, 375 U.S., at 304, 84 S.Ct., at 393.
3
The Court of Appeals held that the case was not moot because it assumed that Pearce mandated expunction of Rice's conviction and because the conviction, unexpunged, would have collateral consequences entitling Rice to challenge it. A number of disabilities may attach to a convicted defendant even after he has left prison,1 and the Court has recognized the standing of such persons to challenge the legality of their convictions even when their sentences have been served.2 It could not be clearer, however, that Pearce does not invalidate the conviction that resulted from Rice's second trial; Pearce went no further than to affirm the judgment of a federal court ordering Pearce's release '(u) pon the failure of the state court to resentence Pearce within 60 days * * *.' 395 U.S., at 714, 89 S.Ct., at 2075. (Emphasis added.) Pearce, in short, requires only resentencing; the conviction is not ipso facto set aside and a new trial required. Even if the higher sentence imposed after Rice's trial de novo was vulnerable under Pearce, Rice was entitled neither to have his conviction erased nor to avoid the collateral consequences flowing from that conviction and a proper sentence.
4
Respondent's sole claim under Pearce thus related to the sentence he had completely served when he came before the Court of Appeals. A different question of mootness is therefore presented than the Court of Appeals considered. Nullification of a conviction may have important benefits for a defendant, as outlined above, but urging in a habeas corpus proceeding the correction of a sentence already served is another matter. Respondent was first sentenced to nine months, suspended upon payment of a $100 fine; after trial de novo he was sentenced to two years. In some jurisdictions, if a defendant is adjudicated guilty, either by conviction or plea, and then is placed on probation, not sentenced, or given a suspended sentence, statutes imposing disabilities for criminal convictions have no application.3 Elsewhere, however, the sentencing that follows adjudication of guilt is irrelevant for purposes of disability statutes.4 Since the present record deals with the mootness question only from the standpoint of conviction vel non and is otherwise unilluminating as to whether there may be benefits to respondent under North Carolina law in having his sentence reduced after he has served that sentence, it would be inappropriate for us to deal with this issue as it has now emerged. Accordingly, we vacate the judgment of the Court of Appeals and remand the case to that court for reconsideration of the question of mootness. So ordered.
5
Judgment of Court of Appeals vacated and case remanded.
6
Mr. Justice DOUGLAS would affirm the judgment below on the opinion of the Court of Appeals in 434 F.2d 297.
1
A convicted criminal may be disenfranchised, cf., e.g., Mont.Const., Art. IX, § 2; Mont.Rev.Codes Ann. § 23—302 (1967); Okla.Const., Art. III, § 1; Okla.Stat.Ann., Tit. 26, § 93.1 (Supp.1971—1972); lose the right to hold federal or state office, cf., e.g., Del.Const., Art. 2, § 21; 18 U.S.C. § 204; be barred from entering certain professions, 7 U.S.C. § 12a(2)(B); D.C.Code Ann. §§ 47—2301 to 47—2350 (1967); be subject to impeachment when testifying as a witness, Ark.Stat.Ann. § 28—605 (1962); Ore.Rev.Stat. § 44.020 (1963); be disqualified from serving as a juror, Idaho Const., Art. 6, § 3, Idaho Code § 2—202 (1948); Nev.Const., Art. 4, § 27, Nev.Rev.Stat. § 6.010 (1967); and may be subject to divorce, W.Va.Code Ann. § 48—2—4 (Supp.1971). See generally Comment, Civil Disabilities of Felons, 53 Va.L.Rev. 403 (1967); Note, The Effect of Expungement on a Criminal Conviction, 40 S.Cal.L.Rev. 127 (1967).
2
Pollard v. United States, 352 U.S. 354, 358, 77 S.Ct. 481, 484, 1 L.Ed.2d 393 (1957); United States v. Morgan, 346 U.S. 502, 512—513, 74 S.Ct. 247, 253—254 (1954); Fiswick v. United States, 329 U.S. 211, 222, 67 S.Ct. 224, 230, 91 L.Ed. 196 (1946); Carafas v. LaVallee, 391 U.S. 234, 237—240, 88 S.Ct. 1556, 1559—1561, 20 L.Ed.2d 554 (1968).
3
See Special Project, The Collateral Consequences of a Criminal Conviction, 23 Vand.L.Rev. 929, 954 n. 97 (1970).
4
Ibid.
| 89
|
404 U.S. 257
92 S.Ct. 495
30 L.Ed.2d 427
Rudolph SANTOBELLO, Petitioner,v.NEW YORK.
No. 70—98.
Argued Nov. 15, 1971.
Decided Dec. 20, 1971.
Syllabus
After negotiations with the prosecutor, petitioner withdrew his previous not-guilty plea to two felony counts and pleaded guilty to a lesser-included offense, the prosecutor having agreed to make no recommendation as to sentence. At petitioner's appearance for sentencing many months later a new prosecutor recommended the maximum sentence, which the judge (who stated that he was uninfluenced by that recommendation) imposed. Petitioner attempted unsuccessfully to withdraw his guilty plea, and his conviction was affirmed on appeal. Held: The interests of justice and proper recognition of the prosecution's duties in relation to promises made in connection with 'any agreement on a plea of guilty' require that the judgment be vacated and that the case be remanded to the state courts for further consideration as to whether the circumstances require only that there be specific performance of the agreement on the plea (in which case petitioner should be resentenced by a different judge), or petitioner should be afforded the relief he seeks of withdrawing his guilty plea. Pp. 260—263.
35 A.D.2d 1084, 316 N.Y.S.2d 194, vacated and remanded.
Irving Anolik, New York City, for petitioner.
Daniel J. Sullivan, New York City, for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari in this case to determine whether the State's failure to keep a commitment concerning the sentence recommendation on a guilty plea required a new trial.
2
The facts are not in dispute. The State of New York indicted petitioner in 1969 on two felony counts, Promoting Gambling in the First Degree, and Possession of Gambling Records in the First Degree, N.Y. Penal Law, McKinney's Consol. Laws, c. 40, §§ 225.10, 225.20. Petitioner first entered a plea of not guilty to both counts. After negotiations, the Assistant District Attorney in charge of the case agreed to permit petitioner to plead guilty to a lesser-included offense, Possession of Gambling Records in the Second Degree, N.Y. Penal Law § 225.15, conviction of which would carry a maximum prison sentence of one year. The prosecutor agreed to make no recommendation as to the sentence.
3
On June 16, 1969, petitioner accordingly withdrew his plea of not guilty and entered a plea of guilty to the lesser charge. Petitioner represented to the sentencing judge that the plea was voluntary and that the facts of the case, as described by the Assistant District Attorney, were true. The court accepted the plea and set a date for sentencing. A series of delays followed, owing primarily to the absence of a pre-sentence report, so that by September 23, 1969, petitioner had still not been sentenced. By that date petitioner acquired new defense counsel.
4
Petitioner's new counsel moved immediately to withdraw the guilty plea. In an accompanying affidavit, petitioner alleged that he did not know at the time of his plea that crucial evidence against him had been obtained as a result of an illegal search. The accuracy of this affidavit is subject to challenge since petitioner had filed and withdrawn a motion to suppress, before pleading guilty. In addition to his motion to withdraw his guilty plea, petitioner renewed the motion to suppress and filed a motion to inspect the grand jury minutes.
5
These three motions in turn caused further delay until November 26, 1969, when the court denied all three and set January 9, 1970, as the date for sentencing. On January 9 petitioner appeared before a different judge, the judge who had presided over the case to this juncture having retired. Petitioner renewed his motions, and the court again rejected them. The court then turned to consideration of the sentence.
6
At this appearance, another prosecutor had replaced the prosecutor who had negotiated the plea. The new prosecutor recommended the maximum one-year sentence. In making this recommendation, he cited petitioner's criminal record and alleged links with organized crime. Defense counsel immediately objected on the ground that the State had promised petitioner before the plea was entered that there would be no sentence recommendation by the prosecution. He sought to adjourn the sentence hearing in order to have time to prepare proof of the first prosecutor's promise. The second prosecutor, apparently ignorant of his colleague's commitment, argued that there was nothing in the record to support petitioner's claim of a promise, but the State, in subsequent proceedings, has not contested that such a promise was made.
7
The sentencing judge ended discussion, with the following statement, quoting extensively from the pre-sentence report:
8
'Mr. Aronstein (Defense Counsel), I am not at all influenced by what the District Attorney says, so that there is no need to adjourn the sentence, and there is no need to have any testimony. It doesn't make a particle of difference what the District Attorney says he will do, or what he doesn't do.
9
'I have here, Mr. Aronstein, a probation report. I have here a history of a long, long serious criminal record. I have here a picture of the life history of this man. . . .
10
"He is unamenable to supervision in the community. He is a professional criminal.' This is in quotes. 'And a recidivist. Institutionalization—'; that means, in plain language, just putting him away, 'is the only means of halting his anti-social activities,' and protecting you, your family, me, my family, protecting society. 'Institutionalization.' Plain language, put him behind bars.
11
'Under the plea, I can only send him to the New York City Correctional Institution for men for one year, which I am hereby doing.'
12
The judge then imposed the maximum sentence of one year.
13
Petitioner sought and obtained a certificate of reasonable doubt and was admitted to bail pending an appeal. The Supreme Court of the State of New York, Appellate Division, First Department, unanimously affirmed petitioner's conviction, 35 A.D.2d 1084, 316 N.Y.S.2d 194 (1970), and petitioner was denied leave to appeal to the New York Court of Appeals. Petitioner then sought certiorari in this Court. Mr. Justice Harlan granted bail pending our disposition of the case.
14
This record represents another example of an unfortunate lapse in orderly prosecutorial procedures, in part, no doubt, because of the enormous increase in the workload of the often understaffed prosecutor's offices. The heavy workload may well explain these episodes, but it does not excuse them. The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called 'plea bargaining,' is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.
15
Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pre-trial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See Brady v. United States, 397 U.S. 742, 751—752, 90 S.Ct. 1463, 1470 1471, 25 L.Ed.2d 747 (1970).
16
However, all of these considerations presuppose fairness in securing agreement between an accused and a prosecutor. It is now clear, for example, that the accused pleading guilty must be counseled, absent a waiver. Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957). Fed.Rule Crim.Proc. 11, governing pleas in federal courts, now makes clear that the sentencing judge must develop, on the record, the factual basis for the plea, as, for example, by having the accused describe the conduct that gave rise to the charge.1 The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known. There is, of course, no absolute right to have a guilty plea accepted. Lynch v. Overholser, 369 U.S. 705, 719, 82 S.Ct. 1063, 1072, 8 L.Ed.2d 211 (1962); Fed.Rule Crim.Proc. 11. A court may reject a plea in exercise of sound judicial discretion.
17
This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.
18
On this record, petitioner 'bargained' and negotiated for a particular plea in order to secure dismissal of more serious charges, but also on condition that no sentence recommendation would be made by the prosecutor. It is now conceded that the promise to abstain from a recommendation was made, and at this stage the prosecution is not in a good position to argue that its inadvertent breach of agreement is immaterial. The staff lawyers in a prosecutor's office have the burden of 'letting the left hand know what the right hand is doing' or has done. That the breach of agreement was inadvertent does not lessen its impact.
19
We need not reach the question whether the sentencing judge would or would not have been influenced had he known all the details of the negotiations for the plea. He stated that the prosecutor's recommendation did not influence him and we have no reason to doubt that. Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration. The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty.2 We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.
20
The judgment is vacated and the case is remanded for reconsideration not inconsistent with this opinion.
21
Mr. Justice DOUGLAS, concurring.
22
I join the opinion of the Court and add only a word. I agree both with THE CHIEF JUSTICE and with Mr. Justice MARSHALL that New York did not keep its 'plea bargain' with petitioner and that it is no excuse for the default merely because a member of the prosecutor's staff who was not a party to the 'plea bargain' was in charge of the case when it came before the New York court. The staff of the prosecution is a unit and each member must be presumed to know the commitments made by any other member. If responsibility could be evaded that way, the prosecution would have designed another deceptive 'contrivance,' akin to those we condemned in Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341, 79 L.Ed. 791, and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217.
23
These 'plea bargains' are important in the administration of justice both at the state1 and at the federal2 levels and, as THE CHIEF JUSTICE says, they serve an important role in the disposition of today's heavy calendars.
24
However important plea bargaining may be in the administration of criminal justice, our opinions have established that a guilty plea is a serious and sobering occasion inasmuch as it constitutes a waiver of the fundamental rights to a jury trial, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, to confront one's accusers, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, to present witnesses in one's defense, Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019, to remain silent, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, and to be convicted by proof beyond all reasonable doubt, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. Since Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009, this Court has recognized that 'unfairly obtained' guilty pleas in the federal courts ought to be vacated. In the course of holding that withdrawn guilty pleas were not admissible in subsequent federal prosecutions, the Court opined:
25
'(O)n timely application, the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertence. Such an application does not involve any question of guilt or innocence.' Id., at 224, 47 S.Ct., at 583.
26
Although Kercheval's dictum concerning grounds for withdrawal of guilty pleas did not expressly rest on constitutional grounds (cf. Frame v. Hudspeth, 309 U.S. 632, 60 S.Ct. 712, 84 L.Ed. 989), Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830, clearly held that a federal prisoner who had pled guilty despite his ignorance of and his being uninformed of his right to a lawyer was deprived of that Sixth Amendment right, or if he had been tricked by the prosecutor through misrepresentations into pleading guilty then his due process rights were offended. In Walker, the petitioner was granted an evidentiary hearing to prove his factual claims in anticipation of vacating the plea. Accord: Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309. In Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473, the defendant alleged that when he threatened to tell his lawyer of private promises made by an Assistant United States Attorney in exchange for a proposed guilty plea, the prosecutor threatened additional prosecutions. Although the Government denied them, the Court held that if the allegations were true, then the defendant would be entitled to have his sentence vacated and the matter was remanded for an evidentiary hearing.
27
State convictions founded upon coerced or unfairly induced guilty pleas have also received increased scrutiny as more fundamental rights have been applied to the States. After Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, the Court held that a state defendant was entitled to a lawyer's assistance in choosing whether to plead guilty. Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398. In Com. of Pa. ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126, federal habeas corpus was held to lie where a lawyerless and uneducated state prisoner had pleaded guilty to numerous and complex robbery charges. And, a guilty plea obtained without the advice of counsel may not be admitted at a subsequent state prosecution. White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193. Thus, while plea bargaining is not per se unconstitutional, North Carolina v. Alford, 400 U.S. 25, 37—38, 91 S.Ct. 160, 167—168, 27 L.Ed.2d 162; Shelton v. United States, 242 F.2d 101, aff'd en banc, 246 F.2d 571 (CA5 1957), a guilty plea is rendered voidable by threatening physical harm, Waley v. Johnston, supra, threatening to use false testimony, ibid., threatening to bring additional prosecutions, Machibroda v. United States, supra, or by failing to inform a defendant of his right of counsel, Walker v. Johnston, supra. Under these circumstances it is clear that a guilty plea must be vacated.
28
But it is also clear that a prosecutor's promise may deprive a guilty plea of the 'character of a voluntary act.' Machibroda v. United States, supra, 368 U.S., at 493, 82 S.Ct., at 513. Cf. Bram v. United States, 168 U.S. 532, 542—543, 18 S.Ct. 183, 186—187, 42 L.Ed. 568. The decisions of this Court have not spelled out what sorts of promises by prosecutors tend to be coercive, but in order to assist appellate review in weighing promises in light of all the circumstances, all trial courts are now required to interrogate the defendants who enter guilty pleas so that the waiver of these fundamental rights will affirmatively appear in the record. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418; Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. The lower courts, however, have uniformly held that a prisoner is entitled to some form of relief when he shows that the prosecutor reneged on his sentencing agreement made in connection with a plea bargain, most jurisdictions preferring vacation of the plea on the ground of 'involuntariness,' while a few permit only specific enforcement. Note: Guilty Plea Bargaining: Compromises By Prosecutors To Secure Guilty Pleas, 112 U.Pa.L.Rev. 865, 876 (1964). As one author has stated, the basis for outright vacation is 'an outraged sense of fairness' when a prosecutor breaches his promise in connection with sentencing. D. Newman, Conviction: The Determination of Guilt or Innocence Without Trial 36 (1966).
29
This is a state case over which we have no 'supervisory' jurisdiction; and Rule 11 of the Federal Rules of Criminal Procedure obviously has no relevancy to the problem.
30
I join the opinion of the Court and favor a constitutional rule for this as well as for other pending or oncoming cases. Where the 'plea bargain' is not kept by the prosecutor, the sentence must be vacated and the state court will decide in light of the circumstances of each case whether due process requires (a) that there be specific performance of the plea bargain or (b) that the defendant be given the option to go to trial on the original charges. One alternative may do justice in one case, and the other in a different case. In choosing a remedy, however, a court ought to accord a defendant's preference considerable, if not controlling, weight inasmuch as the fundamental rights flouted by a prosecutor's breach of a plea bargain are those of the defendant, not of the State.
31
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice STEWART join, concurring in part and dissenting in part.
32
I agree with much of the majority's opinion, but conclude that petitioner must be permitted to withdraw his guilty plea. This is the relief petitioner requested and, on the facts set out by the majority, it is a form of relief to which he is entitled.
33
There is no need to belabor the fact that the Constitution guarantees to all criminal defendants the right to a trial by judge or jury, or, put another way, the 'right not to plead guilty,' United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138 (1968). This and other federal rights may be waived through a guilty plea, but such waivers are not lightly presumed and, in fact, are viewed with the 'utmost solicitude.' Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). Given this, I believe that where the defendant presents a reason for vacating his plea and the government has not relied on the plea to its disadvantage, the plea may be vacated and the right to trial regained at least where the motion to vacate is made prior to sentence and judgment. In other words, in such circumstances I would not deem the earlier plea to have irrevocably waived the defendant's federal constitutional right to a trial.
34
Here, petitioner never claimed any automatic right to withdraw a guilty plea before sentencing. Rather, he tendered a specific reason why, in his case, the plea should be vacated. His reason was that the prosecutor had broken a promise made in return for the agreement to plead guilty. When a prosecutor breaks the bargain, he undercuts the basis for the waiver of constitutional rights implicit in the plea. This, it seems to me, provides the defendant ample justification for rescinding the plea. Where a promise is 'unfulfilled,' Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970), specifically denies that the plea 'must stand.' Of course, where the prosecutor has broken the plea agreement, it may be appropriate to permit the defendant to enforce the plea bargain. But that is not the remedy sought here.* Rather, it seems to me that a breach of the plea bargain provides ample reason to permit the plea to be vacated.
35
It is worth noting that in the ordinary case where a motion to vacate is made prior to sentencing, the government has taken no action in reliance on the previously entered guilty plea and would suffer no harm from the plea's withdrawal. More pointedly, here the State claims no such harm beyond disappointed expectations about the plea itself. At least where the government itself has broken the plea bargain, this disappointment cannot bar petitioner from withdrawing his guilty plea and reclaiming his right to a trial.
36
I would remand the case with instructions that the plea be vacated and petitioner given an opportunity to replead to the original charges in the indictment.
1
Fed.Rule Crim.Proc. 11 provides:
'A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.'
2
If the state court decides to allow withdrawal of the plea, the petitioner will, of course, plead anew to the original charge on two felony counts.
1
In 1964, guilty pleas accounted for 95.5% of all criminal convictions in trial courts of general jurisdiction in New York. In 1965, the figure for California was 74.0%. President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 9 (1967).
2
In 1964, guilty pleas accounted for 90.2% of all criminal convictions in United States district courts. Ibid. In fiscal 1970, of 28,178 convictions in the 89 United States district courts, 24,111 were by pleas of guilty or nolo contendere. Report of Director of Administrative Office of U.S. Courts, for Period July 1 through Dec. 31, 1970, Table D—4, p. A—26.
*
Mr. Justice DOUGLAS, although joining the Court's opinion (apparently because he thinks the remedy should be chosen by the state court), concludes that the state court 'ought to accord a defendant's preference considerable, if not controlling, weight.' Thus, a majority of the Court appears to believe that in cases like these, when the defendant seeks to vacate the plea, that relief should generally be granted.
| 01
|
404 U.S. 282
92 S.Ct. 502
30 L.Ed.2d 448
Georgia TOWNSEND, et al., Appellant,v.Harold O. SWANK, Director, Department of Public Aid of Illinois, et al. Loverta ALEXANDER et al., Appellants, v. Harold O. SWANK, Director, Department of Public Aid of Illinois, et al.
Nos. 70—5021, 70—5032.
Argued Nov. 8, 1971.
Decided Dec. 20, 1971.
Syllabus
This class action challenges on equal protection and supremacy grounds an Illinois statute and regulation under which needy dependent children 18 through 20 years old attending high school or vocational training school qualify for benefits under the federally assisted Aid to Families With Dependent Children (AFDC) program, but such children attending a college or university do not qualify. A three-judge District Court upheld the Illinois scheme. Held: Under § 402(a)(10) of the Social Security Act, a state participating plan under the AFDC program must provide that aid to families with dependent children shall be furnished with reasonable promptness to 'all eligible' individuals. Since § 406(a)(2)(B) of the Act makes dependent 18 20-year-olds eligible for benefits whether attending a college or university or a vocational or technical training course, and Congress has authorized no limitation of eligibility standards within the age group, the Illinois program conflicts with that federal statutory provision and violates the Supremacy Clause. Pp. 285—292.
314 F.Supp. 1082, reversed.
Michael F. Lefkow, Chicago, Ill., for Georgia Townsend.
M. James Spitzer, Jr., New York City, for Loverta Alexander and others pro hac vice, by special leave of Court.
Donald J. Veverka, Chicago, Ill., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Appellants, two college students and their mothers, brought this class action in the District Court for the Northern District of Illinois alleging that § 4—1.1 of the Illinois Public Aid Code, Ill.Rev.Stat., c. 23, § 4—1.1 (1967) and the implementing Illinois Public Aid Regulation 150 violate the Equal Protection Clause of the Fourteenth Amendment, and, because inconsistent with § 406(a)(2)(B) of the Social Security Act, 42 U.S.C. § 606(a)(2)(B), also violate the Supremacy Clause of the Constitution.1 Under the Illinois statute and regulation needy dependent children 18 through 20 years of age who attend high school or vocational training school are eligible for benefits under the federally assisted Aid to Families With Dependent Children (AFDC) program, 42 U.S.C. § 601 et seq., but such children who attend a college or university are not eligible.2 Section 406(a)(2) of the Social Security Act, on the other hand, defines 'dependent child' to include a child '. . . (B) under the age of twenty-one and (as determined by the State in accordance with standards prescribed by the Secretary) a student regularly attending a school, college, or university, or regularly attending a course of vocational or technical training designed to fit him for gainful employment.' A three-judge district court held that neither constitutional contention had merit and sustained the validity of the Illinois statute and regulation. 314 F.Supp. 1082 (1970). We noted probable jurisdiction, 401 U.S. 906, 91 S.Ct. 889, 27 L.Ed.2d 804 (1971). We hold that the Illinois statute and regulation conflict with § 406(a)(2)(B) and for that reason are invalid under the Supremacy Clause. We therefore reverse on that ground without reaching the equal protection issue.
2
* Section 402(a)(10) of the Social Security Act provides that state participatory plans submitted under the AFDC program for the approval of the Secretary of the Department of Health, Education, and Welfare (HEW) must provide 'that aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.' (Emphasis supplied.) In King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), we considered whether a State participating in an AFDC program may, consistently with the Supremacy Clause, adopt eligibility standards that exclude from benefits needy dependent children eligible for benefits under applicable federal statutory standards. There was before us in that case a regulation of the Alabama Department of Pensions and Security that treated a man who cohabited with the mother of needy dependent children in or outside the home as a nonabsent 'parent' within the federal statute. Since aid can be granted under § 406(a) of the Federal Act only if a 'parent' of the needy child is continually absent from the home, Alabama's regulation resulted in the ineligibility of the children for benefits. We held that the Alabama regulation defined 'parent' in a manner inconsistent with § 406(a) of the Social Security Act and therefore that in 'denying AFDC assistance to (children) on the basis of this invalid regulation, Alabama has breached its federally imposed obligation to furnish 'aid to families with dependent children . . . with reasonable promptness to all eligible individuals . . .." 392 U.S., at 333, 88 S.Ct., at 2141.
3
Thus, King v. Smith 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. We recognize that HEW regulations seem to imply that States may to some extent vary eligibility requirements from federal standards.3 However, the principle that accords substantial weight to interpretation of a statute by the department entrusted with its administration is inapplicable insofar as those regulations are inconsistent with the requirement of § 402(a)(10) that aid be furnished 'to all eligible individuals.' (Emphasis supplied.) King v. Smith, 392 U.S., at 333 n. 34, 88 S.Ct., at 2141, 20 L.Ed.2d 1118.
II
4
It is next argued that in the case of 18—20-year-old needy dependent children, Congress authorized the States to vary eligibility requirements from federal standards. In other words, it is contended that Congress authorized the States to discriminate between these needy dependent children solely upon the basis of the type of school attended. Our examination of the legislative history has uncovered no evidence that Congress granted the asserted authority. On the contrary, we are persuaded that the history supports the conclusion that Congress meant to continue financial assistance for AFDC programs for the age group only in States that conformed their eligibility requirements to the federal eligibility standards.
5
Section 406(a)(2)(B) makes dependent 18—20-year-olds eligible for benefits whether attending a college or university, or attending a course of vocational or technical training. The only discretion written into the statute permits a State to determine, 'in accordance with standards prescribed by the Secretary,' whether a particular student, without regard to whether his attendance is at a college or vocational school, is a student 'regularly attending' a bona fide school.4 This particularization of the area of state authority is itself cogent evidence that Congress did not also authorize the States to limit eligibility to students attending vocational school.
6
Nor is there anything in the legislative history of the evolution of § 406(a) (2)(B) to support appellees' argument.5 That history does show that whenever Congress extended AFDC eligibility to older children—from those under 16 to those 16—17, and finally to those 18—20—Congress left to the individual States the decision whether to participate in the program for the new age group. There is no legislative history, however, to support the proposition that Congress also gave to the individual States an option to tailor eligibility standards within the age group, and thus exclude children eligible under the federal standards.
7
The original Social Security Act provided aid only to dependent children under the age of 16. 49 Stat. 629. A 1939 amendment extended aid to children age 16—17 'regularly attending school,' 53 Stat. 1380. The States were not, however, required to extend their AFDC programs to the 16—17-year age group. See H.R.Rep. No. 728, 76th Cong., 1st Sess., 28—29 (1939). But if a State chose to do so, not a word in the legislative history suggests that it might limit its choice to students attending schools selected by the State, and exclude children of the age group attending other schools.
8
In 1956 Congress deleted the school attendance requirement and provided for benefits for all dependent children of the 16—17 age group. 70 Stat. 850. The Senate Report on this bill stated that the bill would 'permit Federal sharing in assistance to such children' and also that the bill would 'make some additional needy children eligible for aid.' S.Rep. No. 2133, 84th Cong., 2d Sess., 30 (1956), U.S.Code Cong. Admin.News 1956, pp. 3906, 3907. (Emphasis supplied.) The Conference Report stated that the bill would 'eliminate the requirement that a needy child between 16 and 18 years of age must be regularly attending school in order to be eligible for aid to dependent children.' H.R.Conf.Rep. No. 2936, 84th Cong., 2d Sess., 42 (1956). Significantly, nothing in the legislative history of that change indicates that the States were at liberty to continue to limit eligibility to 16—17-year-olds attending school.6
9
The first provision for the age group 18—20 came in 1964 when benefits were authorized but limited to children attending high school or vocational school. 78 Stat. 1042. As in the case of the 1939 amendments extending aid to children 16—17 regularly attending school, the States had the choice whether to participate in this new program; S.Rep. No. 1517, 88th Cong., 2d Sess., 2 (1964), expressly stated that 'extension of the program in this manner would be optional with the States.' When in 1965 Congress amended § 406(a)(2)(B) in the form now before us nothing was said to indicate that States that had adopted the 1964 program limited to children attending vocational schools were free to continue that limited program and not extend it to children 18—20 attending a college or university. The relevant Senate Report, S.Rep. No. 404, pt. 1, 89th Cong., 1st Sess., 147 (1965), implies the contrary, stating:
10
'Under existing law States, at their option, may continue payments to needy children up to age 21 in the aid to families with dependent children program, providing they are 'regularly attending a high school in pursuance of a course of study leading to a high school diploma or its equivalent or regularly attending a course of vocational or technical training designed to fit him for gainful employment.' The committee added an amendment extending this provision so as to include needy children under 21 who are regularly 'attending a school, college, or university." U.S.Code Cong. & Admin. News 1965, p. 2087.
11
Moreover, the Report notes that one of the purposes of the extension was to bring AFDC in line with the Old Age Survivors and Disability Insurance provisions of the Social Security Act, 42 U.S.C. § 401 et seq. Under that program an insured's child is eligible for insurance benefits if he is a full-time student under 22 years of age, and under § 402(d)(7) this includes a student attending a college or university. S.Rep. No. 404 attributed to the provision under both programs a purpose to 'assure, as far as possible, that children will not be prevented from going to school or college because they are deprived of parental support.' S.Rep. No. 404, supra, at 147. This theme carried through the Conference Committee Report: 'This amendment would broaden the type of schools that children over the age of 18 and under the age of 21 may attend and receive aid to families with dependent children payments in which the Federal Government will participate.' H.R.Conf.Rep. No. 682, 89th Cong., 1st Sess., 69 (1965), U.S.Code Cong. & Admin. News 1965, p. 2264.7
12
In sum, when application of AFDC was extended to a new age group—in 1939 to 16—17-year-olds and in 1964 to 18—20-year-olds Congress took care to make explicit that the decision whether to participate was left to the individual States. However, when application of AFDC within the age group was enlarged—in 1956 to all 16—17-year-olds and in 1965 to 18—20-year-olds attending college or a university—the evidence, if not as clear, is that financial support of AFDC programs for the age group was to continue only in States that conformed their eligibility requirements to the new federal standards. Any doubt must be resolved in favor of this construction to avoid the necessity of passing upon the equal protection issue. 'Congress is without power to enlist state cooperation in a joint federal-state program by legislation which authorizes the States to violate the Equal Protection Clause.' Shapiro v. Thompson, 394 U.S. 618, 641, 89 S.Ct. 1322, 1335, 22 L.Ed.2d 600 (1969). Notwithstanding the view of the majority of the District Court, 314 F.Supp., at 1088 1089, we think there is a serious question whether the Illinois classification can withstand the strictures of the Equal Protection Clause. The majority justified the classification as designed to attain the twin goals of aiding needy children to become employable and self-sufficient, and of insuring fiscal integrity of the State's welfare program. We doubt the rationality of the classification as a means of furthering the goal of aiding needy children to become employable and self-sufficient; we are not told what basis in practical experience supports the proposition that children with a vocational training are more readily employable than children with a college education. And a State's interest in preserving the fiscal integrity of its welfare program by economically allocating limited AFDC resources may not be protected by the device of adopting eligibility requirements restricting the class of children made eligible by federal standards. That interest may be protected by the State's 'undisputed power to set the level of benefits . . ..' King v. Smith, 392 U.S., at 334, 88 S.Ct., at 2142. See Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).8
13
Reversed.
14
Mr. Chief Justice BURGER, concurring in the result.
15
I concur in the result reached by the Court, but add this brief comment. In dealing with these cases—and the other AFDC cases on the Court's docket—it seems appropriate to keep clearly in mind that Title IV of the Social Security Act governs the dispensation of federal funds and that it does no more than that. True, Congress has used the 'power of the purse' to force the States to adhere to its wishes to a certain extent; but adherence to the provisions of Title IV is in no way mandatory upon the States under the Supremacy Clause. The appropriate inquiry in any case should be simply whether the State has indeed adhered to the provisions and is accordingly entitled to utilize federal funds in support of its program. Cf. Rosado v. Wyman, 397 U.S. 397, 420, 90 S.Ct. 1207, 1221—1222, 25 L.Ed.2d 442 (1970). I agree that the answer to that inquiry here must be in the negative; I therefore concur in the result reached by the Court.
1
Section 4—1.1 of the Illinois Public Aid Code, Ill.Rev.Stat., c. 23, § 4—1.1 (1967), provides:
'Child Age Eligibility. The child or children must be under age 18, or age 18 or over but under age 21 if in regular attendance in high school or in a vocational or technical training school. 'Regular Attendance,' as used in this Section, means attendance full time during the regular terms of such schools, or attendance part time during such regular terms as may be authorized by rule of the Illinois Department for the purpose of permitting the child to engage in employment which supplements his classroom instruction or which otherwise enhances his development toward a self-supporting status.'
Illinois Department of Public Aid Regulation 150 provides:
'Age Requirements:
'A.D.C. Dependent children under 18 years of age, unless 18 through 20 years of age and in regular attendance in high school or vocational or technical training school. (This does not include 18 through 20 year old children in college.)'
2
Appellant Loverta Alexander lives with her son Jerome in Chicago. Jerome reached his 18th birthday in August 1968 and enrolled in junior college about a month later. In early October a Cook County welfare officer notified Mrs. Alexander that the AFDC benefits received by her since 1963 would be terminated as of November 1, 1968. Though Mrs. Alexander was able to obtain general assistance benefits from the State, the termination of AFDC payments resulted in a loss of $23.52 per month in the family's income. The only reason given by the State for the termination was that Jerome had reached his 18th birthday and was not attending high school or vocational school.
Appellant Georgia Townsend is the sole support of Omega Minor, her only child. Mrs. Townsend, who is disabled, received AFDC benefits for herself and her daughter from 1953 through 1960. Thereafter she received an AFDC grant for Omega, and benefits for herself under the Aid to Disabled provisions of the Social Security Act, 42 U.S.C. § 1351 et seq. In September 1966, Omega enrolled in junior college. Two months later a Cook County welfare officer notified Mrs. Townsend that Omega's monthly AFDC payment would be canceled as of January 1967. While Mrs. Townsend's disability payments were increased to meet her own needs, the loss of AFDC benefits resulted in a reduction of $47.94 per month in family income. Again the only reason given was the failure to comply with the Illinois statute and regulation.
This action was brought by Mrs. Alexander under the Federal Civil Rights Act, 42 U.S.C. § 1983, seeking declaratory and injunctive relief against the termination of her AFDC benefits. Mrs. Townsend intervened as a plaintiff on behalf of herself and her daughter Omega, and as a member of the class described in Mrs. Alexander's complaint. The three-judge court, convened pursuant to 28 U.S.C. §§ 2281, 2284, held that appellants' complaint stated a cause of action under the Civil Rights Act, and was a proper class action under Fed.Rule Civ.Proc. 23. Those holdings are not challenged in this Court.
3
See, e.g., HEW's so-called 'Condition X' embodied in a regulation found in 45 CFR § 233.10(a)(1)(ii), 36 Fed.Reg. 3866:
'The groups selected for inclusion in the plan and the eligibility conditions imposed must not exclude individuals or groups on an arbitrary or unreasonable basis, and must not result in inequitable treatment of individuals or groups in the light of the provisions and purposes of the public assistance titles of the Social Security Act.' See also HEW, Handbook of Public Assistance Administration, pt. IV, 4210 (1962); Note, Welfare's 'Condition X,' 76 Yale L.J. 1222 (1967).
4
See HEW Handbook, supra, n. 3, pt. IV, 'Green Sheets,' G 3220 (1965); cf. H.R. cf. Conf.Rep.No.682, 89th Cong., 1st Sess., 69—70 (1965).
5
The United States, as amicus curiae, cites sections of the Social Security Act as supporting Illinois' contention that its college-vocational school distinction is authorized. For example, the United States refers to § 406(a) which originally defined 'dependent child' to include a child living with his 'father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, or aunt.' 49 Stat. 629. A statement by Senator Harrison during debate on this provision, 79 Cong.Rec. 9269, is said to establish that the States were not required to extend assistance for every relative listed in the section. Section 407(b) is also cited as explicitly reserving to the States a choice whether to participate in certain parts of the AFDC program. But these are express authorizations to depart from federal eligibility standards; there is no express authorization in this case.
6
It appears that some States and the District of Columbia continued to limit payments to 16—17-year-olds attending school and to handicapped children prevented from doing so. HEW Public Assistance Report No. 50, Characteristics of State Public Assistance Plans under the Social Security Act (1964 ed.).
7
HEW itself states: 'Within the age limit set by the State, there should be a choice of attending a school, college, or university or taking a course of vocational or technical training for gainful employment.' HEW, Handbook of Public Assistance Administration, supra, n. 3, pt. IV, 'Green Sheets,' G—3220 (1965).
8
The concurring opinion below acknowledged that the reasonable basis for the classification would not be apparent if incentives to learn white- and blue-collar trades and the supply and demand for professional and labor positions were the same. The opinion concluded, however, that the classification could be reasonable in the context of a labor market in which 'the skills of manual laborers are in short supply,' because in such a market, 'as a means of utilizing limited state funds in an effort to channel persons into those employment positions for which the society has great need, the statutory discrimination between college students and post-high school vocational trainees is not purely arbitrary or invidious, but rather, a rational approach designed to correct a perceived problem.' 314 F.Supp., at 1091. Apart from the fact that nothing appears about the nature of the market, a classification that channels one class of people, poor people, into a particular class of low-paying, low-status jobs would plainly raise substantial questions under the Equal Protection Clause.
| 12
|
404 U.S. 307
92 S.Ct. 455
30 L.Ed.2d 468
UNITED STATES, Appellant,v.William R. MARION and Samuel C. Cratch.
No. 70—19
Argued Nov. 8, 1971.
Decided Dec. 20, 1971.
Syllabus
Appellees, claiming that the Government had known of the crimes with which they were charged, the circumstances of the crimes, and appellees' identities for over three years before they were indicted, moved to dismiss on the ground that the indictment was returned 'an unreasonably oppressive and unjustifiable time after the alleged offenses,' and that the delay deprived them of rights to due process of law and a speedy trial as secured by the Fifth and Sixth Amendments. While asserting no specific prejudice, appellees contended that the indictment required memory of many specific acts and conversations occurring several years before and that the delay was due to the prosecutor's negligence or indifference in investigating the case and presenting it to the grand jury. The District Court, after a hearing, granted appellees' motion and dismissed the indictment for 'lack of speedy prosecution,' having found that the defense was 'bound to have been seriously prejudiced' by the three-year delay. The Government took a direct appeal to this Court, which postponed consideration of the question of jurisdiction until the hearing on the merits. Held:
1. The motion to dismiss the indictment for lack of a speedy trial was in the nature of a confession and avoidance and constituted a motion in bar by appellees who had not been placed in jeopardy when the District Court entered its order of dismissal. That order was therefore directly appealable to this Court under former 18 U.S.C. § 3731. P. 311—312.
2. The Sixth Amendment's guarantee of a speedy trial is applicable only after a person has been 'accused' of a crime, which in this case did not occur until appellees (who had not previously been arrested or otherwise charged) were indicted. Pp. 313—320.
3. The relevant statute of limitations provides a safeguard against possible prejudice resulting from pre-accusation delay, and here appellees were indicted within the applicable limitations period. Pp. 320—323.
4. Though the Due Process Clause may provide a basis for dismissing an indictment if the defense can show at trial that prosecutorial delay has prejudiced the right to a fair trial, appellees have not claimed or proved actual prejudice resulting from the delay and their due process claims are therefore speculative and premature. P. 325—326.
Reversed.
R. Kent Greenawalt, New York City, for appellant.
Thomas Penfield Jackson, Washington, D.C., for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
This appeal requires us to decide whether dismissal of a federal indictment was constitutionally required by reason of a period of three years between the occurrence of the alleged criminal acts and the filing of the indictment.
2
On April 21, 1970, the two appellees were indicted and charged in 19 counts with operating a business known as Allied Enterprises, Inc., which was engaged in the business of selling and installing home improvements such as intercom sets, fire control devices, and burglary detection systems. Allegedly, the business was fraudulently conducted and involved misrepresentations, alterations of documents, and deliberate nonperformance of contracts. The period covered by the indictment was March 15, 1965, to February 6, 1967; the earliest specific act alleged occurred on September 3, 1965, the latest on January 19, 1966.
3
On May 5, 1970, appellees filed a motion to dismiss the indictment 'for failure to commence prosecution of the alleged offenses charged therein within such time as to afford (them their) rights to due process of law and to a speedy trial under the Fifth and Sixth Amendments to the Constitution of the United States.' No evidence was submitted, but from the motion itself and the arguments of counsel at the hearing on the motion, it appears that Allied Enterprises had been subject to a Federal Trade Commission cease and desist order on February 6, 1967, and that a series of articles appeared in the Washington Post in October 1967, reporting the results of that newspaper's investigation of practices employed by home improvement firms such as Allied. The articles also contained purported statements of the then United States Attorney for the District of Columbia describing his office's investigation of these firms and predicting that indictments would soon be forthcoming. Although the statements attributed to the United States Attorney did not mention Allied specifically, that company was mentioned in the course of the newspaper stories. In the summer of 1968, at the request of the United States Attorney's office, Allied delivered certain of its records to that office, and in an interview there appellee Marion discussed his conduct as an officer of Allied Enterprises. The grand jury that indicted appellees was not impaneled until September 1969, appellees were not informed of the grand jury's concern with them until March 1970, and the indictment was finally handed down in April.
4
Appellees moved to dismiss because the indictment was returned 'an unreasonably oppressive and unjustifiable time after the alleged offenses.' They argued that the indictment required memory of many specific acts and conversations occurring several years before, and they contended that the delay was due to the negligence or indifference of the United States Attorney in investigating the case and presenting it to a grand jury. No specific prejudice was claimed or demonstrated. The District Court judge dismissed the indictment for 'lack of speedy prosecution' at the conclusion of the hearing and remarked that since the Government must have become aware of the relevant facts in 1967, the defense of the case 'is bound to have been seriously prejudiced by the delay of at least some three years in bringing the prosecution that should have been brought in 1967, or at the very latest early 1968.'1
5
The United States appealed directly to this Court pursuant to 18 U.S.C. § 3731 (1964 ed., Supp. V).2 We postponed consideration of the question of jurisdiction until the hearing on the merits of the case.3 We now hold that the Court has jurisdiction, and on the merits we reverse the judgment of the District Court.
6
* prior to its recent amendment, 18 U.S.C. § 3731 [1964 ed., Supp. V] authorized an appeal to this Court by the United States when in any criminal case a district court sustained 'a motion in bar, when the defendant has not been put in jeopardy.' It is plain to us that the appeal of the United States is within the purview of this section. Appellees had not been placed in jeopardy when the District Court rendered its judgment. The trial judge based his ruling on undue delay prior to indictment, a matter that was beyond the power of the Government to cure since re-indictment would not have been permissible under such a ruling. The motion to dismiss rested on grounds that had nothing to do with guilt or innocence or the truth of the allegations in the indictment but was, rather, a plea in the nature of confession and avoidance, that is, where the defendant does not deny that he has committed the acts alleged and that the acts were a crime but instead pleads that he cannot be prosecuted because of some extraneous factor, such as the running of the statute of limitations or the denial of a speedy trial. See United States v. Weller, 401 U.S. 254, 260, 91 S.Ct. 602, 606, 28 L.Ed.2d 26 (1971). The motion rested on constitutional grounds exclusively, and neither the motion, the arguments of counsel, the Court's oral opinion, nor its judgment mentioned Federal Rule of Criminal Procedure 48(b), as a ground for dismissal.4 Our jurisdiction to hear this appeal has been satisfactorily established.
II
7
Appellees do not claim that the Sixth Amendment was violated by the two-month delay between the return of the indictment and its dismissal. Instead, they claim that their rights to a speedy trial were violated by the period of approximately three years between the end of the criminal scheme charged and the return of the indictment; it is argued that this delay is so substantial and inherently prejudicial that the Sixth Amendment required the dismissal of the indictment. In our view, however, the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an 'accused,' an event that occurred in this case only when the appellees were indicted on April 21, 1970.
8
The Sixth Amendment provides that '[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . ..' On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been 'accused' in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him. '(T)he essential ingredient is orderly expedition and not mere speed.' Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041 (1959).
9
Our attention is called to nothing in the circumstances surrounding the adoption of the Amendment indicating that it does not mean what it appears to say,5 nor is there more than marginal support for the proposition that, at the time of the adoption of the Amendment, the prevailing rule was that prosecutions would not be permitted if there had been long delay in presenting a charge.6 The framers could hardly have selected less appropriate language if they had intended the speedy trial provision to protect against pre-accusation delay. No opinions of this Court intimate support for appellees' thesis,7 and the courts of appeals that have considered the question in constitutional terms have never reversed a conviction or dismissed an indictment solely on the basis of the Sixth Amendment's speedy trial provision where only pre-indictment delay was involved.8
10
Legislative efforts to implement federal and state speedy trial provisions also plainly reveal the view that these guarantees are applicable only after a person has been accused of a crime. The Court has pointed out that '(a)t the common law, and in the absence of special statutes of limitations, the mere failure to find an indictment will not operate to discharge the accused from the offense nor will a nolle prosequi entered by the government, or the failure of the grand jury to indict.' United States v. Cadarr, 197 U.S. 475, 478, 25 S.Ct. 487, 488, 49 L.Ed. 842 (1905). Since it is 'doubtless true that in some cases the power of the government has been abused and charges have been kept hanging over the heads of citizens, and they have been committed for unreasonable periods, resulting in hardship,' the Court noted that many States '(w)ith a view to preventing such wrong to the citizen . . . (and) in aid of the constitutional provisions, national and state, intended to secure to the accused a speedy trial' had passed statutes limiting the time within which such trial must occur after charge or indictment.9 Characteristically, these statutes to which the Court referred are triggered only when a citizen is charged or accused.10 The statutes vary greatly in substance, structure and interpretation, but a common denominator is that '(i)n no event . . . (does) the right to speedy trial arise before there is some charge or arrest, even though the prosecuting authorities had knowledge of the offense long before this.' Note, The Right to a Speedy Trial, 57 Col.L.Rev. 846, 848 (1957).
11
No federal statute of general applicability has been enacted by Congress to enforce the speedy trial provision of the Sixth Amendment, but Federal Rule of Criminal Procedure 48(b), which has the force of law, authorizes dismissal of an indictment, information, or complaint '(i)f there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial . . ..' The rule clearly is limited to post-arrest situations.11
12
Appellees' position is, therefore, at odds with longstanding legislative and judicial constructions of the speedy trial provisions in both national and state constitutions.
III
13
It is apparent also that very little support for appellees' position emerges from a consideration of the purposes of the Sixth Amendment's speedy trial provision, a guarantee that this Court has termed 'an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.' United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966); see also Klopfer v. North Carolina, 386 U.S. 213, 221—226, 87 S.Ct. 988, 992—995, 18 L.Ed.2d 1 (1967); Dickey v. Florida, 398 U.S. 30, 37—38, 90 S.Ct. 1564, 1568—1569, 26 L.Ed.2d 26 (1970). Inordinate delay between arrest, indictment, and trial may impair a defendant's ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends. These considerations were substantial underpinnings for the decision in Klopfer v. North Carolina, supra; see also Smith v. Hooey, 393 U.S. 374, 377—378, 89 S.Ct. 575, 576—577, 21 L.Ed.2d 607 (1969). So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.
14
Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge.12 But we decline to extend that reach of the amendment to the period prior to arrest. Until this event occurs, a citizen suffers no restraints on his liberty and is not the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer. Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself.13 But this possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context. Possible prejudice is inherent in any delay, however short; it may also weaken the Government's case.
15
The law has provided other mechanisms to guard against possible as distinguished from actual prejudice resulting from the passage of time between crime and arrest or charge. As we said in United States v. Ewell, supra, 386 U.S., at 122, 86 S.Ct., at 777, 'the applicable statute of limitations . . . is . . . the primary guarantee against bringing overly stale criminal charges.' Such statutes represent legislative assessments of relative interests of the State and the defendant in administering and receiving justice; they 'are made for the repose of society and the protection of those who may (during the limitation) . . . have lost their means of defence.' Public Schools v. Walker, 9 Wall. 282, 288, 19 L.Ed. 576 (1870). These statutes provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant's right to a fair trial would be prejudiced.14 As this Court observed in Toussie v. United States, 397 U.S. 112, 114—115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970):
16
'The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.'
17
There is thus no need to press the Sixth Amendment into service to guard against the mere possibility that pre-accusation delays will prejudice the defense in a criminal case since statutes of limitation already perform that function.
18
Since appellees rely only on potential prejudice and the passage of time between the alleged crime and the indictment, see Part IV, infra, we perhaps need go no further to dispose of this case, for the indictment was the first official act designating appellees as accused individuals and that event occurred within the statute of limitations.15 Nevertheless, since a criminal trial is the likely consequence of our judgment and since appellees may claim actual prejudice to their defense, it is appropriate to note here that the statute of limitations does not fully define the appellees' rights with respect to the events occurring prior to indictment. Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.16 Cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution.17 Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant's case should abort a criminal prosecution.18 To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case. It would be unwise at this juncture to attempt to forecast our decision in such cases.
IV
19
In the case before us, neither appellee was arrested, charged, or otherwise subjected to formal restraint prior to indictment. It was this event, therefore, that transformed the appellees into 'accused' defendants who are subject to the speedy trial protections of the Sixth Amendment.
20
The 38-month delay between the end of the scheme charged in the indictment and the date the defendants were indicted did not extend beyond the period of the applicable statute of limitations here. Appellees have not, of course, been able to claim undue delay pending trial, since the indictment was brought on April 21, 1970, and dismissed on June 8, 1970. Nor have appellees adequately demonstrated that the pre-indictment delay by the Government violated the Due Process Clause. No actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them. Appellees rely solely on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment. Events of the trial may demonstrate actual prejudice, but at the present time appellees' due process claims are speculative and premature.
21
Reversed.
22
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, concurring in the result.
23
I assume that if the three-year delay in this case had occurred after the indictment had been returned, the right to a speedy trial would have been impaired and the indictment would have to be dismissed. I disagree with the Court that the guarantee does not apply if the delay was at the pre-indictment stage of a case.
24
From March 15, 1965, to February 6, 1967, appellees acting through Allied Enterprises, Inc., sold and installed home intercom, fire control, and burglar detection devices in the District of Columbia metropolitan area. Their business endeavors were soon met with a spate of lawsuits seeking recovery for consumer fraud and, on February 6, 1967, their brief career was ended by a cease-and-desist order entered by the Federal Trade Commission. Public notoriety continued to surround appellees' activities and, in a series of articles appearing in the Washington Post in September and October of 1967, their business was mentioned as being under investigation by the United States Attorney. The special grand jury that was impaneled on October 9, 1967, to investigate consumer fraud did not, however, return an indictment against appellees. Sometime between the summer of 1968 and January 1969, appellees delivered their business records to the United States Attorney, but an indictment was not returned against them until April 21, 1970. The indictment charged some 19 counts of mail fraud, wire fraud, and transportation of falsely made securities in interstate commerce all between September 3, 1965, and January 19, 1966.
25
Appellees moved 'to dismiss the indictment for failure to commence prosecution . . . within such time as to (satisfy the) . . . rights to due process of law and to a speedy trial . . ..' The United States Attorney sought to excuse the delay, alleging that his office had been understaffed at the time and that it had given priority to other types of crimes. The District Court granted appellees' motion1 and the United States appealed. 18 U.S.C. § 3731 (1964 ed., Supp. V).
26
The majority says 'that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision . . ..' Ante, at 320.
27
The Sixth Amendment, to be sure, states that 'the accused shall enjoy the right to a speedy and public trial.' But the words 'the accused,' as I understand them in their Sixth Amendment setting, mean only the person who has standing to complain of prosecutorial delay in seeking an indictment or filing an information. The right to a speedy trial is the right to be brought to trial speedily which would seem to be as relevant to pre-indictment delays as it is to post-indictment delays. Much is made of the history of the Sixth Amendment as indicating that the speedy trial guarantee had no application to pre-prosecution delays.
28
There are two answers to that proposition. First, British courts historically did consider delay as a condition to issuance of an information.
29
Lord Mansfield held in Rex v. Robinson, 1 Black.W. 541, 542, 96 Eng.Rep. 313 (K.B.1765), that the issuance of an information was subject to time limitations: '(I)f delayed, the delay must be reasonably accounted for.' In Regina v. Hext, 4 Jurist 339 (Q.B.1840), an information was refused where a whole term of court had passed since the alleged assault took place. Accord: Rex v. Marshall, 13 East, 322, 104 Eng.Rep. 394 (K.B.1811).
30
Baron Alderson said in Regina v. Robins, 1 Cox's C.C. 114 (Somerset Winter Assizes 1844), where there was a two-year delay in making a charge of bestiality:
31
'It is monstrous to put a man on his trial after such a lapse of time. How can he account for his conduct so far back? If you accuse a man of a crime the next day, he may be enabled to bring forward his servants and family to say where he was and what he was about at the time; but if the charge be not preferred for a year or more, how can he clear himself? No man's life would be safe if such a prosecution were permitted. It would be very unjust to put him on his trial.'
32
Second, and more basically, the 18th century criminal prosecution at the common law was in general commenced in a completely different way from that with which we are familiar today. By the common law of England which was brought to the American colonies, the ordinary criminal prosecution was conducted by a private prosecutor, in the name of the King. In case the victim of the crime or someone interested came forward to prosecute, he retained his own counsel and had charge of the case as in the usual civil proceeding. See G. Dession, Criminal Law, Administration and Public Order 356 (1948). Procedurally, the criminal prosecution was commenced by the filing of a lawsuit, and thereafter the filing of an application for criminal prosecution or rule nisi or similar procedure calling for the defendant to show cause why he should not be imprisoned. The English common law, with which the Framers were familiar, conceived of a criminal prosecution as being commenced prior to indictment. Thus in that setting the individual charged as the defendant in a criminal proceeding could and would be an 'accused' prior to formal indictment.2
33
The right to a speedy trial, which we have characterized 'as fundamental as any of the rights secured by the Sixth Amendment,' Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1, protects several demands of criminal justice: the prevention of undue delay and oppressive incarceration prior to trial; the reduction of anxiety and concern accompanying public accusation; and limiting the possibilities that long delay will impair the ability of an accused to defend himself. Smith v. Hooey, 393 U.S. 374, 377—378, 89 S.Ct. 575, 576—577, 21 L.Ed.2d 607 (1969). See also People v. Prosser, 309 N.Y. 353, 356, 130 N.E.2d 891, 894 (1955). The right also serves broader interests:
34
'The Speedy Trial Clause protects societal interests, as well as those of the accused. The public is concerned with the effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Just as delay may impair the ability of the accused to defend himself, so it may reduce the capacity of the government to prove its case. See Ponzi v. Fessenden, 258 U.S. 254, 264, 42 S.Ct. 309, 312, 66 L.Ed. 607 (1922). Moreover, while awaiting trial, an accused who is at large may become a fugitive from justice or commit other criminal acts. And the greater the lapse of time between commission of an offense and the conviction of the offender, the less the deterrent value of his conviction.' Dickey v. Florida, 398 U.S. 30, 42, 90 S.Ct. 1564, 1571, 26 L.Ed.2d 26 (1970) (Brennan, J., concurring).
35
At least some of these values served by the right to a speedy trial are not unique to any particular stage of the criminal proceeding. See Note, 43 N.Y.U.L.Rev. 722, 725—726 (1968); Note, 77 Yale L.J. 767, 780—783 (1968); Comment, 11 Ariz.L.Rev. 770, 774 776 (1969). Undue delay may be as offensive to the right to a speedy trial before as after an indictment or information. The anxiety and concern attendant on public accusation may weigh more heavily upon an individual who has not yet been formally indicted or arrested for, to him, exoneration by a jury of his peers may be only a vague possibility lurking in the distant future. Indeed, the protection underlying the right to a speedy trial may be denied when a citizen is damned by clandestine innuendo and never given the chance promptly to defend himself in a court of law. Those who are accused of crime but never tried may lose their jobs or their positions of responsibility, or become outcasts in their communities.
36
The impairment of the ability to defend oneself may become acute because of delays in the pre-indictment stage. Those delays may result in the loss of alibi witnesses, the destruction of material evidence, and the blurring of memories. At least when a person has been accused of a specific crime, he can devote his powers of recall to the events surrounding the alleged occurrences. When there is no formal accusation, however, the State may proceed methodically to build its case while the prospective defendant proceeds to lose his.3
37
The duty which the Sixth Amendment places on Government officials to proceed expeditiously with criminal prosecutions would have little meaning if those officials could determine when that duty was to commence. To be sure, '(t)he right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances.' Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950 (1905). But it is precisely because this right is relative that we should draw the line so as not to condone illegitimate delays whether at the pre- or the post-indictment stage.4
38
Our decisions do not support the limitations of the right to a speedy trial adopted in the majority's conclusion that 'the (Sixth) amendment (does not extend) to the period prior to arrest.' Ante, at 321. In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), we held that it was necessary for the police to advise of the right to counsel in the preindictment situation where 'a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' That case, like the present one, dealt with one of the rights enumerated in the Sixth Amendment to which an 'accused' was entitled. We were not then concerned with whether an 'arrest' or an 'indictment' was necessary for a person to be an 'accused' and thus entitled to Sixth Amendment protections. We looked instead to the nature of the event and its effect on the rights involved. We applied the Miranda rule even though there was no 'arrest,' but only an examination of the suspect while he was in his bed at his boarding house, the presence of the officers making him 'in custody.' Orozco v. Texas, 394 U.S. 324, 327, 89 S.Ct. 1095, 1097, 22 L.Ed.2d 311. We should follow the same approach here and hold that the right to a speedy trial is denied if there were years of unexplained and inexcusable preindictment delay.
39
Dickey v. Florida, supra, similarly demonstrates the wisdom of avoiding today's mechanical approach to the application of basic constitutional guarantees. While he was in custody on an unrelated federal charge, the petitioner was identified by a witness to the robbery. Petitioner remained in federal custody, but the State did not seek to prosecute him until September 1, 1967, when he moved to dismiss the detainer warrant which had been lodged against him. An information was then filed on December 15, 1967, and petitioner was tried on February 13, 1968. Although the trial took place less than two months after the filing of the information, we held that there had been a denial of the right to a speedy trial because of the delay of more than seven years between the crime and the information.
40
In a concurring opinion, Mr. Justice Brennan discussed the broader questions raised by that case:
41
'When is governmental delay reasonable? Clearly, a deliberate attempt by the government to use delay to harm the accused, or governmental delay that is 'purposeful or oppressive,' is unjustifiable. . . . The same may be true of any governmental delay that is unnecessary, whether intentional or negligent in origin. A negligent failure by the government to ensure speedy trial is virtually as damaging to the interests protected by the right as an intentional failure; when negligence is the cause, the only interest necessarily unaffected is our common concern to prevent deliberate misuse of the criminal process by public officials. Thus the crucial question in determining the legitimacy of governmental delay may be whether it might reasonably have been avoided—whether it was unnecessary. To determine the necessity for governmental delay, it would seem important to consider, on the one hand, the intrinsic importance of the reason for the delay, and, on the other, the length of the delay and its potential for prejudice to interests protected by the speedy-trial safeguard. For a trivial objective, almost any delay could be reasonably avoided. Similarly, lengthy delay, even in the interest of realizing an important objective, would be suspect.' 398 U.S., at 51—52, 90 S.Ct., at 1575.
42
In the present case, two to three years elapsed between the time the District Court found that the charges could and should have been brought and the actual return of the indictment. The justifications offered were that the United States Attorney's office was 'not sufficiently staffed to proceed as expeditiously' as desirable5 and that priority had been given to other cases. Appellees say that the present indictment embraces counts such as an allegedly fraudulent telephone conversation made on December 16, 1965. They argue that there is a great likelihood that the recollection of such events will be blurred or erased by the frailties of the human memory. If this were a simpler crime, I think the British precedent which I have cited would warrant dismissal of the indictment because of the speedy trial guarantee of the Sixth Amendment. But we know from experience that the nature of the crime charged here often has vast interstate aspects, the victims are often widely scattered and hard to locate, and the reconstruction of the total scheme of the fraudulent plan takes time. If we applied the simpler rule that was applied in simpler days, we would be giving extraordinary advantages to organized crime as well as others who use a farflung complicated network to perform their illegal activities. I think a three-year delay even in that kind of case goes to the edge of a permissible delay. But on the bare bones of this record I hesitate to say that the guarantee of a speedy trial has been violated. Unless appellees on remand demonstrate actual prejudice, I would agree that the prosecution might go forward. Hence I concur in the result.
1
App. 39. The court's oral decision consisted of the following statement: 'It appears to the Court that the matters complained of occurred between March 1965 and January 1966. It further appears that these matters were known from early 1967 or a matter of common knowledge in late 1967. There appears no reason why a three-year delay from 1967 was justified by the necessity of research and examination delving into the various transactions, they could have been discovered and handled much, much sooner, certainly probably during the year 1967 or at the latest early 1968.
'The defendants have been indicted on 19 counts, each of which I believe carries a ten-year sentence, each of which is a separate, distinct transaction which would justify consecutive sentences, and by the very nature of this outrageous scheme if the allegations could be believed, the ability to remember, to build up in one's recollection, to produce the necessary defense, is bound to have been seriously prejudiced by the delay of at least some three years in bringing the prosecution that should have been brought in 1967, or at the very latest early 1968.
'The Court, therefore, views that there has been a lack of speedy prosecution in this case, and will grant the motion to dismiss.' Ibid.
2
The Criminal Appeals Act, 18 U.S.C. § 3731 (1964 ed., Supp. V), at the time of this appeal, provided in relevant part:
'An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances:
'From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.'
The Omnibus Crime Control Act of 1970, § 14(a), 84 Stat. 1890, amended the Criminal Appeals Act to read in pertinent part as follows:
'In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.'
This amendment thus terminated the Court's appellate jurisdiction of Government appeals from district court judgments in federal criminal cases. Pending cases were not affected by the amendment, however, since subsection (b) of § 14 provides:
'The amendments made by this section shall not apply with respect to any criminal case begun in any district court before the effective date of this section.'
The Omnibus Crime Control Act of 1970 took effect on January 2, 1971; the appellees in this case were indicted on April 21, 1970.
3
401 U.S. 934, 91 S.Ct. 921, 28 L.Ed.2d 214 (1971).
4
Rule 48(b) provides that: 'If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.' In any event, it is doubtful that Rule 48(b) applies in the circumstances of this case, where the indictment was the first formal act in the criminal prosecution of these appellees. See cases cited in n. 11, infra.
5
The history of the speedy trial provision is sparse and unilluminating with respect to the issue before us. See F. Heller, The Sixth Amendment to the Constitution of the United States 31 32, 34 (1951); R. Rutland, The Birth of the Bill of Rights, 1776 1791, p. 202 (1955); I. Brant, The Bill of Rights 223 (1965); Dumbauld, State Precedents for the Bill of Rights, 7 J.Pub.L. 323, 335 n. 91 (1958); Note, The Right to a Speedy Trial, 20 Stan.L.Rev. 476, 484 (1968).
6
A single case that antedates the Bill of Rights, Rex v. Robinson, 1 Black.W. 541, 96 Eng.Rep. 313 (K.B. 1765), and three 19th century British cases, Rex v. Marshall, 13 East 322, 104 Eng.Rep. 394 (K.B.1811); Regina v. Hext, 4 Jurist 339 (Q.B.1840); Regina v. Robins, 1 Cox's C.C. 114 (Somerset Winter Assizes 1844) are cited for the proposition that the framers intended to protect against pre-indictment delay by enacting the Sixth Amendment. These cases fail to establish a definite rule that the Founders sought to constitutionalize, however, and the Government's argument concerning the history of the Sixth Amendment, while not dispositive, is more persuasive. Brief for the United States 15 18. The Government points out that the Habeas Corpus Act of 1679, 31 Car. 2, provided for 'more speedy Relief of all Persons imprisoned for any such criminal or supposed criminal Matters' and required that persons jailed for felonies or treason be brought to trial upon their own motion within two terms of court or be discharged on bail. The Act does not allude to delay before arrest. Most of the States that ratified the Bill of Rights had either adopted the British Act or passed a similar law, Petition of Provoo, 17 F.R.D. 183, 197 n. 6 (D.C.Md.), aff'd sub nom. United States v. Provoo, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955), and many of them had speedy trial provisions in their own constitutions which were modeled on the British Act. Article 8 of the Virginia Declaration of Rights, which may have been the model Madison used for the Sixth Amendment, Rutland, supra, n. 5, at 202, secured the right to a speedy trial in 'criminal prosecutions' where 'a man hath a
right to demand the cause and nature of his accusation.' See generally Heller, supra, n. 5, at 23. Insofar as this meager evidence is probative at all, it seems to imply that the Sixth Amendment was designed to assure that those accused of crimes would have their trial without undue delay.
7
This Court has interpreted the Sixth Amendment's speedy trial guarantee in only a small number of cases. See, e.g., Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); United States v. Provoo, supra, n. 6; Beavers v. Haubert, 198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950 (1905). See also Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041 (1959).
8
Most courts of appeals have recognized the Sixth Amendment right to a speedy trial only after a prosecution has been formally initiated or have held that the sole safeguard against pre-indictment delay is the relevant statute of limitations: United States v. Feinberg, 383 F.2d 60, 65 (CA2 1967); Carlo v. United States, 283 F.2d 841, 846 (CA2), cert. denied, 366 U.S. 944, 81 S.Ct. 1672, 6 L.Ed.2d 855 (1961); Pitts v. North Carolina, 395 F.2d 182, 185 n. 3 (CA4 1968); United States v. Durham, 413 F.2d 1003, 1004 (CA5 1969); Kroll v. United States, 433 F.2d 1282, 1286 (CA5 1970), cert. denied, 402 U.S. 944, 91 S.Ct. 1618, 29 L.Ed.2d 112 (1971); United States v. Grayson, 416 F.2d 1073, 1076 1077 (CA5 1969); United States v. Wilson, 342 F.2d 782, 783 (CA5), cert. denied, 382 U.S. 860, 86 S.Ct. 119, 15 L.Ed.2d 98 (1965); Donnell v. United States, 229 F.2d 560, 567 (CA5 1956); Harlow v. United States, 301 F.2d 361, 366 (CA5), cert. denied, 371 U.S. 814, 83 S.Ct. 25, 9 L.Ed.2d 56 (1962); Bruce v. United States, 351 F.2d 318, 320 (CA5 1965), cert. denied, 384 U.S. 921, 86 S.Ct. 1370, 16 L.Ed.2d 441 (1966); Hoopengarner v. United States, 270 F.2d 465, 469 (CA6 1959); United States v. Harris, 412 F.2d 471, 473 (CA6 1969); Lothridge v. United States, 441 F.2d 919, 922 (CA6 1971); Parker v. United States, 252 F.2d 680, 681
(CA6), cert, denied, 356 U.S. 964, 78 S.Ct. 1003, 2 L.Ed.2d 1071 (1958); Edmaiston v. Neil, 452 F.2d 494 (CA6 1971); United States v. Panczko, 367 F.2d 737, 738—739 (CA7 1966); Terlikowski v. United States, 379 F.2d 501, 504 (CA8), cert. denied, 389 U.S. 1008, 88 S.Ct. 569, 19 L.Ed.2d 604 (1967); Foley v. United States, 290 F.2d 562, 565 (CA8 1961); Benson v. United States, 402 F.2d 576, 579 (CA9 1968); Venus v. United States, 287 F.2d 304, 307 (CA9 1960), rev'd per curiam on other grounds, 368 U.S. 345, 82 S.Ct. 384, 7 L.Ed.2d 341 (1961); D'Aquino v. United States, 192 F.2d 338, 350 (CA9 1951), cert. denied, 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343 (1952); United States v. Reed, 413 F.2d 338, 340 (CA10 1969), cert. denied sub nom. Sartain v. United States, 397 U.S. 954, 90 S.Ct. 982, 25 L.Ed.2d 137 (1970); Nickens v. United States, 116 U.S.App.D.C. 338, 340, 323 F.2d 808, 810 (1963), cert. denied, 379 U.S. 905, 85 S.Ct. 198, 13 L.Ed.2d 178 (1964). Some courts of appeals have stated that pre-indictment delay may be cause for dismissal, but they have seemed to treat the question primarily as one of due process (although the Sixth Amendment is occasionally mentioned) and have required a showing of actual prejudice: Schlinsky v. United States, 379 F.2d 735, 737 (CA1 1967); Fleming v. United States, 378 F.2d 502, 504 (CA1 1967); United States v. Capaldo, 402 F.2d 821, 823 (CA2 1968), cert. denied, 394 U.S. 989, 89 S.Ct. 1476, 22 L.Ed.2d 764 (1969); United States v. Simmons, 338 F.2d 804, 806 (CA2 1964), cert. denied, 380 U.S. 983, 85 S.Ct. 1352, 14 L.Ed.2d 276 (1965); United States v. Holiday, 319 F.2d 775, 776 (CA2 1963); United States v. Hammond, 360 F.2d 688, 689 (CA2 1966); United States v. Dickerson, 347 F.2d 783, 784 (CA2 1965); United States v. Rivera, 346 F.2d 942, 943 (CA2 1965); United States v. Sanchez, 361 F.2d 824, 825 (CA2 1966); United States v. Harbin, 377 F.2d 78, 79, 80 n. 1 (CA4 1967); United States v. Lee, 413 F.2d 910, 912—913 (CA7 1969), cert. denied, 396 U.S. 1022, 90 S.Ct. 595, 24 L.Ed.2d 515 (1970); United States v. Napue, 401 F.2d 107, 114—115 (CA7 1968), cert. denied, 393 U.S. 1024, 89 S.Ct. 634, 21 L.Ed.2d 568 (1969); Lucas v. United States, 363 F.2d 500, 502 (CA9 1966); Sanchez v. United States, 341 F.2d 225, 228 n. 3 (CA9), cert. denied, 382 U.S. 856, 86 S.Ct. 109, 15 L.Ed.2d 94 (1965); Acree v. United States, 418 F.2d 427, 430 (CA10 1969). Although Petition of Provoo, 17 F.R.D. 183 (Md.), aff'd sub nom. United States v. Provoo, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955), is sometimes cited for the proposition that pre-indictment delay will justify dismissal, the District Court explicitly stated that it considered this delay to be relevant only on the issue of whether the
defendant had been denied a fair trial. 17 F.R.D., at 202. In Taylor v. United States, 99 U.S.App.D.C. 183, 238 F.2d 259 (1956), a conviction was vacated where there had been a six-year delay between the crime (housebreaking) and trial, 3 1/2 years of which was a delay between crime and indictment; the defendant had been in prison on another charge during this time, and the defendant was substantially prejudiced in his ability to defend against the housebreaking charge. The Court of Appeals stated: 'We do not rely on the mere lapse of time between the commission of the offenses and the date of indictment, considered by itself, for that is governed by the statute of limitations. It is the combination of the factors set forth above (post-indictment delay, prejudice) which motivates our decision.' id., at 186, 238 F.2d, at 262. In these instances district courts have held, however, that 'delay' for Sixth Amendment purposes must be computed from the time of the crime or from the time when the Government considers the defendants' actions criminal, and have dismissed indictments for excessive delay. United States v. Parrott, 248 F.Supp. 196 (DC 1965); United States v. Wahrer, 319 F.Supp. 585 (Alaska 1970); United States v. Burke, 224 F.Supp. 41 (DC 1963). There is a unique line of cases in the District of Columbia Circuit concerning pre-indictment delay in narcotics cases where the Government relies on secret informers and (frequently) on single transactions. These cases take a more rigid stance against such delays, but they are based on the Court of Appeals' purported supervisory jurisdiction and not on the Sixth Amendment. See, e.g., Ross v. United States, 121 U.S.App.D.C. 233, 238, 349 F.2d 210, 215 (1965); Bey v. United States, 121 U.S.App.D.C. 337, 350 F.2d 467 (1965); Powell v. United States, 122 U.S.App.D.C. 229, 231, 352 F.2d 705, 707 (1965); Tynan v. United States, 126 U.S.App.D.C. 206, 208, 376 F.2d 761, 763 (1967) (explicitly limiting Ross).
9
The provision the Court dealt with in Cadarr was § 939 of the then District of Columbia Code adopted by Congress, 31 Stat. 1342. That section provided that if any person 'charged with a criminal offense shall have been committed or held to bail,' the grand jury must act within a specified time or the accused would be set free. The provision remains in the present code as § 23 102, 84 Stat. 605, and then, as now, does not purport to reach behind the time of charge, commitment, or holding for bail.
10
See, e.g., Ill.Rev.Stat., c. 38, § 103—5(a) (1969); Pa.Stat.Ann., Tit. 19, § 781 (1964); Cal.Pen.Code § 1382 (1970); Va.Code Ann. § 19.1—191 (1960); Nev.Rev.Stat. § 178.556 (1967). A more comprehensive list of such state statutes appears in American Bar Association Project on Standards for Criminal Justice, Speedy Trial 14—15 (Approved Draft 1968). The Administrative Board of the Judicial Conference of the State of New York recently promulgated rules on trial delay and detention which cover defendants who are 'held in custody' and which begin computation of delay periods from the date of arrest. Rule 29.1, New York Law Journal, April 30, 1971, p. 1, col. 6. See generally Note, The Right to a Speedy Trial, 20 Stan.L.Rev. 476 (1968); Note, Pre-Arrest Delay: Evolving Due Process Standards, 43 N.Y.U.L.Rev. 722 (1968); Note, Constitutional Limits on Pre-Arrest Delay, 51 Iowa L.Rev. 670 (1966); Note, The Lagging Right to a Speedy Trial, 51 Va.L.Rev. 1587 (1965); Note, Justice Overdue—Speedy Trial for the Potential Defendant, 5 Stan.L.Rev. 95 (1952).
The rules that the Second Circuit en banc recently adopted in United States ex rel. Frizer v. McMann, 437 F.2d 1312 (CA2 1971), which appear in Appendix, 28 U.S.C.A. (May 1971 Supp.), require trial within a specified period but apply to 'all persons held in jail
prior to trial' and 'defendants' in 'all other criminal cases.' Rule 2. Rule 4 provides that: 'In all cases the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest.' See generally Comment, Speedy Trials and the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases, 71 ColL.Rev. 1059 (1971).
Cf. also S. 895, 92d Cong., 1st Sess., a bill intended '(t)o give effect to the sixth amendment right to a speedy trial for persons charged with offenses against the United States.' The protections of the bill are engaged 'within sixty days from the date the defendant is arrested or a summons is issued, except that if an information or indictment is filed, then within sixty days from the date of such filing.' § 3161(b)(1).
11
Nickens v. United States, supra, 116 U.S.App.D.C., at 339, 323 F.2d, at 809; Harlow v. United States, supra; Hoopengarner v. United States, supra; United States v. Hoffa, 205 F.Supp. 710, 720—721 (SD Fla. 1962).
12
In its Standards Relating to Speedy Trial, n. 10, supra, at 6, the ABA defined the time at which the beginning of the delay period should be computed as
'the date the charge is filed, except that if the defendant has been continuously held in custody or on bail or recognizance until that date to answer for the same crime or a crime based on the same conduct or arising from the same criminal episode, then the time for trial should commence running from the date he was held to answer.' Rule 2.2(a).
Under the ABA Standards, after a defendant is charged, it is contemplated that his right to a speedy trial would be measured by a statutory time period excluding necessary and other justifiable delays; there is no necessity to allege or show prejudice to the defense. Rule 2.1, ibid.
13
Extending a Sixth Amendment right to a period prior to indictment or holding to answer would also create procedural problems: '(W)hile other rights may be violated by delay in arrest or charge, it does not follow that the time for trial should be counted from any date of inaction preceding filing of the charge or holding the defendant to answer. To recognize a general speedy trial right commencing as of the time arrest or charging was possible would have unfortunate consequences for the operation of the criminal justice system. Allowing inquiry into when the police could have arrested or when the prosecutor could have charged would raise difficult problems of proof. As one court said, 'the Court would be engaged in lengthy hearings in every case to determine whether or not the prosecuting authorities had proceeded diligently or otherwise.' (United States v. Port, Crim. No. 33162, (ND Cal., June 2, 1952). Quoted in Note, Justice Overdue—Speedy Trial for the Potential Defendant, 5 Stan.L.Rev. 95, 101—102, n. 34.)' Commentary to Rule 2.2(a), Speedy Trial, n. 10, supra, at 23.
14
The Court has indicated that criminal statutes of limitation are to be liberally interpreted in favor of repose. United States v. Habig, 390 U.S. 222, 227, 88 S.Ct. 926, 929, 19 L.Ed.2d 1055 (1968). The policies behind civil statutes of limitation are in many ways similar. They 'represent a public policy about the privilege to litigate,' Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628 (1945), and their underlying rationale is 'to encourage promptness in the bringing of actions, that the parties shall not suffer by loss of evidence from death or disappearance of witnesses, destruction of documents, or failure of memory.' Missouri, Kansas & Texas R. Co. v. Harriman, 227 U.S. 657, 672, 33 S.Ct. 397, 401, 57 L.Ed. 690 (1913). Such statutes 'are founded upon the general experience of mankind that claims, which are valid, are not usually allowed to remain neglected,' Riddlesbarger v. Hartford Insurance Co., 7 Wall. 386, 390, 19 L.Ed. 257 (1869), they 'promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared,' Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 348—349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944), and they 'are primarily designed to assure fairness to defendants . . .. (C)ourts ought to be relieved of the burden of trying stale claims when a plaintiff has slept on his rights.' Burnett v. New York Central R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965). As in the criminal law area, such statutes represent a legislative judgment about the balance of equities in a situation involving the tardy assertion of otherwise valid rights: 'The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.' Order of Railroad Telegraphers v. Railway Express Agency, supra, 321 U.S., at 349, 64 S.Ct., at 586.
15
'except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.' 18 U.S.C. § 3282.
16
Brief for the United States 26—27.
17
A number of courts of appeals have considered the question. See, e.g., Benson v. United States, 402 F.2d, at 580; Schlinsky v. United States, supra; United States v. Capaldo, supra; United States v. Lee, 413 F.2d, at 913; United States v. Wilson, supra; United States v. Harbin, 377 F.2d, at 80; Acree v. United States, supra; Nickens v. United States, supra, 116 U.S.App.D.C., at 340 n. 2, 323 F.2d, at 810 n. 2.
18
Cf. Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374 (1966):
'There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.'
1
In dismissing the indictment, the District Court said:
'It appears to the Court that the matters complained of occurred between March 1965 and January 1966. It further appears that these matters were known from early 1967 or a matter of common knowledge in late 1967. There appears no reason why a three-year delay from 1967 was justified by the necessity of research and examination delving into the various transactions, they could have been discovered and handled much, much sooner, certainly probably during the year 1967 or at the latest early 1968.
'The defendants have been indicted on 19 counts, each of which I believe carries a ten-year sentence, each of which is a separate, distinct transaction which would justify consecutive sentences, and by the very nature of this outrageous scheme if the allegations could be believed, the ability to remember, to build up in one's recollection, to produce the necessary defense, is bound to have been seriously prejudiced by the delay of at least some three years in bringing the prosecution that should have been brought in 1967, or at the very latest early 1968.
'The Court, therefore, views that there has been a lack of speedy prosecution in this case, and will grant the motion to dismiss.'
2
See 1 J. Stephen, History of the Criminal Law of England 493—496 (1883):
'In England, and, so far as I know, in England and some English colonies alone, the prosecution of offences is left entirely to private persons, or to public officers who act in their capacity of private persons and who have hardly any legal powers beyond those which belong to private persons.' Id., at 493.
For an annotated version of the inception and evolution of the British system, see M. Schwartz, Cases and Materials on Professional Responsibility and the Administration of Criminal Justice 2—3 (Nat. Council on Legal Clinics 1961).
3
Judge Wright recognized this in his concurring opinion in Nickens v. United States, 116 U.S.App.D.C. 338, 343, 323 F.2d 808, 813 (1963):
'Indeed, a suspect may be at a special disadvantage when complaint or indictment, or arrest, is purposefully delayed. With no knowledge that criminal charges are to be brought against him, an innocent man has no reason to fix in his memory the happenings on the day of the alleged crime. Memory grows dim with the passage of time. Witnesses disappear. With each day, the accused becomes less able to make out his defense. If, during the delay, the Government's case is already in its hands, the balance of advantage shifts more in favor of the Government the more the Government lags. Under our constitutional system such a tactic is not available to police and prosecutors.'
4
'(A) preprosecution delay can result in the loss of physical evidence, the unavailability of potential witnesses, and the impairment of the ability of the prospective defendant and his witnesses to remember the events in question. Indeed, the possibility of such prejudice may be greater in preprosecution-delay cases than in post-indictment-delay cases. The typical prospective defendant is probably unaware of the fact that criminal charges will eventually be brought against him. Thus, he will have no reason to take measures to preserve his memory or the memories of his witnesses. 'The importance of these considerations becomes clear when measured against the state's ability to collect and document evidence as it carries out its criminal investigation, thereby preserving its probative firepower until the time of eventual arrest.'
'The causal factor also can be present in a preprosecution delay. Many preprosecution delays are caused by the reluctance of the government to terminate an undercover investigation. If the knowledge obtained by an undercover agent is used as the basis for an arrest or for the issuance of a complaint, the identity of the agent may be exposed and his effectiveness destroyed. Consequently, the government will often delay arresting an individual against whom its case is complete if the agent is still obtaining evidence against other individuals. In such a situation, the government has made a deliberate choice for a supposed advantage. While this advantage is arguably not sought vis-a -vis the defendant asserting the speedy-trial claim, the fact remains that the advantage arises out of a deliberate and avoidable choice on the part of law-enforcement authorities.' Note, 20 Stan.L.Rev. 476, 489.
5
The District Judge pointed out that the then Assistant Attorney General had indicated 'that he didn't need any more help' and that the United States Attorney retreated from this actual assertion.
| 01
|
404 U.S. 293
92 S.Ct. 471
30 L.Ed.2d 457
UNITED STATES, Petitioner,v.Dimas CAMPOS-SERRANO.
No. 70—46.
Argued Oct. 14, 1971.
Decided Dec. 20, 1971.
Syllabus
Possession of counterfeit alien registration receipt card held not an act punishable under 18 U.S.C. § 1546, which prohibits, inter alia, the counterfeiting or alternation of, or the possession, use, or receipt of an already counterfeited or altered 'immigrant or nonimmigrant visa, permit, or other document required for entry into the United States.' The primary purpose of an alien registration receipt card is for identification within the United States, and its merely permissible re-entry function under an Immigration and Naturalization Service regulation does not suffice to bring the card within the coverage of the statute. There is a separate statutory provision specifically protecting the integrity of alien registration receipt cards, indicating that the Congress did not intend them to be covered by the more general language of § 1546. Pp. 295—301.
430 F.2d 173, affirmed.
William Bradford Reynolds, Dept. of Justice, Washington, D.C., for petitioner, pro hac vice, by special leave of Court.
John J. Cleary, San Diego, Cal., for repsondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The respondent was convicted in a federal district court of possession of a counterfeit alien registration receipt card in violation of 18 U.S.C. § 1546,1 and sentenced to a three-year prison term.2 The Court of Appeals reversed the conviction, 430 F.2d 173, holding that because of the circumstances under which Government agents had acquired the card from the respondent, it had been unconstitutionally admitted against him at the trial under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. We granted certiorari. 401 U.S. 936, 91 S.Ct. 926, 28 L.Ed.2d 215. We do not reach the constitutional issue, however, for we have concluded that the judgment of the Court of Appeals must be affirmed upon a discrete statutory ground. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (Brandeis, J., concurring).3 We hold that possession of a counterfeit alien registration receipt card is not an act punishable under 18 U.S.C. § 1546.4
2
The statutory provision in question prohibits, inter alia, the counterfeiting or alternation of, or the possession, use, or receipt of an already counterfeited or altered 'immigrant or nonimmigrant visa, permit, or other document required for entry into the United States.' This offense originated in Section 22(a) of the Immigration Act of 1924,5 which covered only an 'immigration visa or permit.' The words 'other document required for entry into the United States,' were added in 1952 as part of the Immigrant and Nationality Act. § 402(a), 66 Stat. 275. The legislative history of the 1952 Act, however, does not make clear which 'other' entry documents the Congress had in mind.6
3
Alien registration receipt cards were first issued in 1941. They are small, simple cards containing the alien's picture and basic identification information.7 They have no function whatsoever in facilitating the initial entry into the United States. Rather, they are issued after an alien has entered the country and taken up residence. Their essential purpose is to effectuate the registration requirement for all resident aliens established in the Alien Registration Act of 1940.8
4
Until 1952, alien registration receipt cards could not even be used to facilitate re-entry into the United States by a resident alien who had left temporarily. Such an alien was required to obtain special documents authorizing his re-entry into the country, such as a visa or a re-entry permit.9 However, in 1952—less than a month before final enactment of the Immigration and Nationality Act—the Immigration and Naturalization Service promulgated a regulation that allowed resident aliens to use their registration receipt cards for re-entry purposes as a permissible substitute for the specialized documents.10 The apparent reason for this regulation was to minimize paper work and streamline administrative procedures by giving resident aliens the option of using for re-entry a document already issued and serving other purposes. Thus, the registration receipt cards may now be used in lieu of a visa or a re-entry permit on condition that the holder is returning to the United States after a temporary absence of not more than one year.11
5
The Court of Appeals held that the limited, merely permissible, re-entry function of the alien registration receipt card is sufficient to make it a 'document required for entry into the United States' under § 1546. 430 F.2d, at 175. We cannot agree. It has long been settled that 'penal statutes are to be construed strictly,' Federal Communications Comm'n v. American Broadcasting Co., 347 U.S. 284, 296, 74 S.Ct. 593, 601, 98 L.Ed. 699, and that one 'is not to be subjected to a penalty unless the words of the statute plainly impose it,' Keppel v. Tiffin Savings Bank, 197 U.S. 356, 362, 25 S.Ct. 443, 445, 49 L.Ed. 790. '(W)hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.' United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221—222, 73 S.Ct. 227, 229, 97 L.Ed. 260. In § 1546, Congress did speak in 'clear and definite' language. But, taken literally and given its plain and ordinary meaning, that language does not impose a criminal penalty for possession of a counterfeited alien registration receipt card. Alien registration receipt cards may be used for re-entry by certain persons into the United States. They are not required for entry.
6
The canon of strict construction of criminal statutes, of course, 'does not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature.' United States v. Bramblett, 348 U.S. 503, 510, 75 S.Ct. 504, 508, 99 L.Ed. 594. If an absolutely literal reading of a statutory provision is irreconcilably at war with the clear congressional purpose, a less literal construction must be considered. In this spirit, we read § 1546 in conjunction with 8 U.S.C. § 1101(a)(13)—another part of the 1952 Immigration and Nationality Act—which provides that, under most circumstances, an 'entry' into the United States is defined to include a 're-entry.' We have held in the past that Congress did not intend these terms to be taken entirely synonymously. Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000. But Congress clearly did intend a significant overlap, and we cannot say that a document usable for 'entry' into the United States under § 1546 does not include some documents usable for 're-entry.' Nor do we hold that § 1546 applies only to those documents absolutely 'required' in order to enter or re-entry the country. To do so would undermine the congressional purpose behind § 1546, since the Immigration and Naturalization Service has not required that presentation of any one particular document be the exclusive condition of crossing our borders.
7
While the apparent congressional purpose underlying § 1546 would thus seem to bar an uncompromisingly literal construction, the precise language of the provision must not be deprived of all force. The principle of strict construction of criminal statutes demands that some determinate limits be established based upon the actual words of the statute. Accordingly, a 'document required for entry into the United States' cannot be construed to include any document whatsoever that the Immigration and Naturalization Service, from time to time, decides may be presented for re-entry at the border. The language of § 1546 denotes a very special class of 'entry' documents—documents whose primary raison d'e tre is the facilitation of entry into the country. The phrase, 'required for entry into the United States,' is descriptive of the nature of the documents; it is not simply a open-ended reference to future administrative regulations.
8
If, for example, the Immigration and Naturalization Service were to allow the presentation of identification such as a driver's license at the border, the nature of such a license would not suddenly change so that it would fall into the category of a 'document required for entry into the United States' under § 1546. To be sure, if a counterfeit driver's license were presented to secure entry or re-entry into the country, the bearer could be prosecuted under 8 U.S.C. § 1325, which provides for the punishment of '(a)ny alien who . . . obtains entry to the United States by a willfully false or misleading representation . . ..' But mere possession of a counterfeit driver's license, far from the border, could not be prosecuted under § 1546. The reason is that a driver's license is not essentially an 'entry' document. Rather, its primary purpose is to allow its bearer lawfully to drive a car, and the bearer's possession of a counterfeit license, far from the border, could not be assumed to be related to the policies underlying the 1952 Immigration and Nationality Act.
9
The same analysis applies to the alien registration receipt card. Its essential purpose is not to secure entry into the United States, but to identify the bearer as a lawfully registered alien residing in the United States. It is issued to an alien after he has taken up residence in this country. It is intended to govern his activities and presence within this country. The card has been given a convenient, additional function as a permissible substitute for a visa or re-entry permit in facilitating reentry into the United States by a resident alien. But, unlike a visa or a re-entry permit,12 an alien registration receipt card serves this function in only a secondary way. Unlike a visa or a re-entry permit, it is not, by its nature, a 'document required for entry into the United States' under § 1546.
10
This construction of the language of § 1546 is conclusively supported by that section's statutory context. In the 1952 Immigration and Nationality Act, Congress clearly regarded alien registration receipt cards as serving policies separate and distinct from those served by pure 'entry' documents. Although, in 1952, those cards could be used as substitutes for visas or re-entry permits, the Congress chose to deal with them separately. In 8 U.S.C. § 1306(c) and § 1306(d), it specifically provided for the punishment of one 'who procures or attempts to procure registration of himself or another person through fraud' and of one who counterfeits an alien registration receipt card. The fact that the Congress did not rely on § 1546 to ensure the integrity of alien registration receipt cards indicates that it did not believe that they were covered by that section. Moreover, there is a very specific overlap between § 1546 and § 1306. Both sections explicitly prohibit counterfeiting, and both explicitly prohibit fraud in the acquisition of documents.13 Unless we assume that § 1306 is mere surplusage, we must conclude that § 1546 covers only specialized 'entry' documents, and not alien registration receipt cards specifically covered in § 1306.14
11
For these reasons the judgment is affirmed.
12
Affirmed.
13
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE and Mr. Justice WHITE join, dissenting.
14
The Court today affirms the judgment of the Court of Appeals 'upon a discrete statutory ground' and does not reach the questions with respect to which certiorari was granted.1 This statutory ground was rejected by the District Court when it denied a defense motion to dismiss the indictment. It was also rejected by the Court of Appeals. 430 F.2d 173, at 175—176. I would reject it here.
15
The statutory issue to which the Court retreats is whether an alien registration card is a 'document required for entry into the United States,' within the meaning of 18 U.S.C. § 1546. The Court holds, somewhat to the surprise of the litigants I am sure, that the card is not such a document, and that Campos-Serrano's indictment, therefore, charged no offense under the statute. I feel that this conclusion has no support either in the statutory language and meaning or in the legislative history, and is certainly not supported by the practice, long in effect, at our Nation's borders.
16
* The parent of § 1546 is § 22(a) of the Immigration Act of 1924. 43 Stat. 165. That statute did not refer to 'any immigrant or nonimmigrant visa, permit, or other document required for entry into the United States,' as § 1546 does today. Instead, it spoke only of 'any immigrant visa or permit.' Nevertheless, even under the definition of 'permit' in this order and narrower statute, Congress specifically included a temporary re-entry paper issued to and used by a resident alien who wished to leave the country for a period of less than one year.2 Clearly, therefore, the statutory scheme, as far back as 1924, contemplated that knowing possession of an altered document useful only for reentering the United States was punishable as a felony.
17
The registration card came into being with Title III of the Alien Registration Act of 1940, 54 Stat. 673. At first it served only for identification of the alien who had complied with the registration requirements. Section 30 of the 1940 Act, however, authorized the use of a separate 'border-crossing identification card' by a resident alien in order to enable him to return to the United States after temporary travel to a contiguous country.
18
An INS regulation filed May 29, 1952, provided that a registration card, issued on or after September 10, 1946, 'shall constitute a resident alien's border crossing card' and could be used by the alien in effecting re-entry into the United States provided he had not visited any foreign territory other than Canada or Mexico. 17 Fed.Reg. 4921—4922. This was the first time a registration card, as such, was recognized as a re-entry document. But it was so recognized. Five years later its use was expanded with respect to re-entry from nations that were not contiguous. 22 Fed.Reg. 6377 (1957). Its use for this purpose has continued to the present time. 8 CFR § 211.1(b) (1971).
19
In addition to this administrative practice, the statutory language itself was expanded. Section 22(a) of the 1924 Act was repealed in 1948 and simultaneously re-enacted without significant change as 18 U.S.C. § 1546 and as part of that year's general recodification of the federal criminal laws. 62 Stat. 771, 865. Finally, § 1546 was amended to its present form by § 402(a) of the Immigration and Nationality Act of 1952. 66 Stat. 275.
20
There is no room for dispute that the 1952 change served to broaden, not to contract, the number of documents within the prohibition of § 1546. The 1924 reference to 'any immigration visa or permit' is obviously but a lesser part of the later and still current phrase, 'any immigrant or nonimmigrant visa, permit, or other document required for entry.' See United States v. Rodriguez, 182 F.Supp. 479, 484 n. 3 (SD Cal.1960), rev'd in part on other grounds, sub nom. Rocha v. United States, 288 F.2d 545 (CA9), cert. denied, 366 U.S. 948, 81 S.Ct. 1902, 6 L.Ed.2d 1241 (1961). From 1924 until the 1952 legislation, narrower statutory language nevertheless had covered a document used solely for re-entry. Surely nothing in the expanded language of 1952 suggests congressional intent thenceforth to confine the statute to initial-entry documents. Indeed, congressional intent to the contrary, that is, to enlarge the coverage of § 1546, is evident not only from the statute's words but, as well, from the definition of 'entry' in the 1952 Act, § 101(a)(13), 66 Stat. 167, 8 U.S.C. § 1101(a)(13):
21
'The term 'entry' means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except . . ..' (Emphasis supplied.)
22
From this it inevitably follows that the phrase 'document required for entry' embraces a document used for re-entry into the United States. One document of that kind is the alien registration card.3
23
This brief but clear administrative and legislative history, it seems to me, reveals and proves the intent of Congress and the meaning and reach of the statute. The alien registration card, Form I—151, became one of a number of documents specified and accepted and required for re-entry.
24
The Court's opinion, as I read it, seems to accept most of all this, that is, that there is no § 1546 distinction between 'entry' and 're-entry,' and that an alien registration card is a document 'required' for entry into the United States. Ante, at 298.
25
Having made this broad and, to me, sensible reading of § 1546, the Court, however, then reverses direction and conveniently restricts § 1546 to 'a very special class of 'entry' documents documents whose primary raison d'e tre is the facilitation of entry into the country,' and it accuses the INS of standing to gain 'an open-ended reference to future administrative regulations' if the Government were to prevail here. The reasons for this change of direction are not apparent to me. The Court's comparison of the registration card to a driver's license in this context is wide of the mark. A driver's license has nothing to do with immigration. A registration card has everything to do with immigration. It is authorized under the immigration statutes. It is required of a resident alien. 8 U.S.C. §§ 1301—1306. And for almost two decades it has been a re-entry document.
II
26
The fact that there may be some overlapping between § 1546 and 8 U.S.C. § 1306(d) does not prevent the application of § 1546 to the alien registration card.4 Section 1306(d) came into being as § 266(d) of the 1952 Act, 66 Stat. 226. It does refer specifically to 'an alien registration receipt card,' whereas § 1546 has no such specific reference. The two sections, however, have different purposes and relate to different aspects of immigration. Section 266(d) was a part of the Act's chapter that concerned 'Registration of Aliens.' It has to do with the implementation and protection of the alien registration scheme. It reached counterfeiting alone. Section 1546, on the other hand, is concerned with entry into the country and with the integrity of documents used in effecting entry. It is not restricted to counterfeiting. It also reaches knowing possession and alternation.
27
The Court's exclusion of the alien registration card from the reach of § 1546 leaves entirely free from punishment the alteration of a card and the possession of a card with knowledge of its altered or counterfeit character. Surely Congress did not intend to leave that loophole.5
28
I therefore dissent from the Court's affirmance of the judgment of the Court of Appeals upon the 'discrete statutory ground.' I would decide that issue as the Court of Appeals decided it and I would go on to reach the questions we anticipated when we granted the petition for certiorari.
1
The applicable portion of § 1546 reads as follows:
'Whoever . . . knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, or document, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawful obtained . . ..
'Shall be fined not more than $2,000 or imprisoned not more than five years, or both.'
2
The sentence was suspended, and the respondent was placed on probation for three years 'on condition that he return to Mexico and not return to the United States illegally.' Pursuant to this sentence, he was remanded to the custody of the Immigration and Naturalization Service for deportation udner a previous order. It appears that he is now in Mexico. Clearly, the fact that the respondent is now out of the country does not render this case moot. He is still under the sentence of the District Court and on probation subject to conditions imposed by the District Court. Should he violate those conditions, he will be subject to imprisonment under his continuing criminal sentence.
Eisler v. United States, 338 U.S. 189, 69 S.Ct. 1453, 93 L.Ed. 1897, is irrelevant to this case. There, the petitioner fled voluntarily from the United States and successfully resisted extradition. We, therefore, declined to consider the merits of his case, just as we have declined over the years to consider the merits of criminal cases in which the party seeking review has escaped 'from the restraints placed upon him pursuant to the conviction.' Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586; Bonahan v. Nebraska, 125 U.S. 692, 8 S.Ct. 1390, 31 L.Ed. 854; Smith v. United States, 94 U.S. 97, 24 L.Ed. 32. 'While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles (the party) to call upon the resources of the Court for determination of his claims.' Molinaro v. New Jersey, supra, 396 U.S., at 366, 90 S.Ct., at 498. In the present case, by contrast, the respondent has not fled from the restraints imposed by the District Court pursuant to this conviction. Rather, he is living under those restraints today.
3
'The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.'
4
Accord, United States v. Fernandez-Gonzalez (64 CR 101, ND Ill.) (unpublished opinion). Contrary to the suggestion in the dissenting opinion, our decision on this issue of statutory construction will hardly come as a 'surprise' to the parties. The issue was presented to and decided by the Court of Appeals. It was argued and fully briefed before this Court by both parties.
5
43 Stat. 165.
6
See H.R.Rep.No.1365, 82d Cong., 2d Sess.; S.Rep.No.1137, 82d Cong., 2d Sess.; H.R.Conf.Rep.No.2096, 82d Cong., 2d Sess. The only one of these reports to make any mention whatsoever of the changes in § 1546 was H.R.Rep.No.1365. It simply stated that 'necessary amendments (are made) to other laws . . .. Most of those amendments are in the nature of conforming changes.' Id., at 88. It seems most likely that the purpose of the new language in § 1546 was to reach the specialized border-crossing identification cards, authorized as a substitute for a visa or a permit in the Alien Registration Act of 1940. See n. 9 and n. 12, infra. At the time H.R.Rep.No.1365 was published, the alien registration receipt card had no 'entry' or 're-entry' function.
7
The Appendix filed by the Government in this case contains a reproduction of an alien registration receipt card, Form I—151 of the Immigration and Naturalization Service.
8
See 54 Stat. 673. The statutory provisions for the registration of aliens are now contained in 8 U.S.C. §§ 1301—1306.
9
Provision for the use of re-entry permits was made in the Immigration Act of 1924, § 10, 43 Stat. 158. The Alien Registration Act of 1940 required that an alien present one of three special documents—a visa, a re-entry permit, or a border-crossing identification card—in order to come into the United States. 54 Stat. 673.
10
The 1952 INS regulation provided that the alien registration receipt card could be used as a permissible substitute for a visa of a re-entry permit in effecting a re-entry into this country from a contiguous country. 17 Fed.Reg. 4921. In 1957, this permissible use of the alien registration receipt card was expanded to include reentry from noncontiguous nations. 22 Fed.Reg. 6377. The present INS regulation appears in 8 CFR § 211.1(b).
11
8 C.F.R. § 211.1(b).
12
Visas and re-entry permits are the specialized 'entry' documents for which the alien registration receipt card is a permissible substitute under present INS regulations. See n. 10, supra.
Border-crossing identification cards are like visas and re-entry permits, and unlike alien registration receipt cards, in that they are specialized documents whose sole purpose and function is to regulate the crossing of our national borders. Hence, the likelihood that Congress in 1952 wished to expand the coverage of § 1546 to reach border-crossing identification cards, see n. 6, supra, supports our holding. The expansion mandated by Congress was simply within the class of specialized 'entry' documents.
13
The prohibition of counterfeiting in § 1546 is contained in the first paragraph of that section. See n. 1, supra. The prohibition of fraud in the acquisition of documents is contained in the third paragraph of § 1546, which reads as follows:
'Whoever, when applying for an immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or for admission to the United States personates another, or falsely appears in the name of a deceased individual, or evades or attempts to evade the immigration laws by appearing under an assumed or fictitious name without disclosing his true identity . . ..
'Shall be fined not more than $2,000 or imprisoned not more than five years, or both.'
14
"(A) statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." Market Co. v. Hoffman, 101 U.S. 112, 115—116, 25 L.Ed. 782. See Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307—308, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859. To be sure, the overlap between § 1546 and § 1306 is only partial, since § 1546 goes farther than § 1306—prohibiting the possession of counterfeit documents as well as the counterfeiting of documents. But the Congress would hardly have thought it necessary to create any overlap at all, if it had believed alien registration receipt cards were covered by § 1546.
1
'1. Whether the court below unduly extended Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, by holding, on the facts of this case, that agents of the Immigration and Naturalization Service were required to give respondent warnings before asking him to produce him alien registration card.
'2. Whether an alien registration card is a 'required record' which an alien must produce upon request irrespective of whether he is 'in custody." Pet. for Cert. 2.
2
Sections 28(k) and 10 of the 1924 Act, 43 Stat. 169 and 158.
3
The face of the card, Form I—151, bears the recital, 'This card will be honored in lieu of a visa and passport on condition that the rightful holder is returning to the United States after a temporary absence of not more than one year and is not subject to exclusion under any provision of the immigration laws.'
4
Overlapping in federal criminal statutes is not unknown. See, for example, Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Achilli v. United States, 353 U.S. 373, 77 S.Ct. 995, 1 L.Ed.2d 918 (1957); Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957); Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943).
5
The loophole is not closed by 8 U.S.C. § 1325, as the respondent would assert. Section 1325 concerns a very different offense, namely, the actual misuse of the entry document in obtaining entry to the United States. Section 1546, on the other hand, relates to potential misuse of the entry document after gaining entry to the country.
| 01
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404 U.S. 336
92 S.Ct. 515
30 L.Ed.2d 488
UNITED STATES, Petitioner,v.Denneth BASS.
No. 70—71.
Argued Oct. 18, 1971.
Decided Dec. 20, 1971.
Syllabus
Respondent was convicted of possessing firearms in violation of § 1202(a)(1) of the Omnibus Crime Control and Safe Streets Act, which provides that a person convicted of a felony 'who receives, possesses, or transports in commerce or affecting commerce . . . any firearm . . .' shall be punished as prescribed therein. The indictment did not allege and no attempt was made to show that the firearms involved had been possessed 'in commerce or affecting commerce,' the Government contending that the statute does not require proof of a connection with interstate commerce in individual cases involving possession or receipt. Doubting its constitutionality if the statute were thus construed, the Court of Appeals reversed. Held: It is not clear from the language and legislative history of § 1202(a)(1) whether or not receipt or possession of a firearm by a convicted felon has to be shown in an individual prosecution to have been connected with interstate commerce. The ambiguity of this provision (which is not only a criminal statute but one whose broad construction would define as a federal offense conduct readily proscribed by the States), must therefore be resolved in favor of the narrower reading that a nexus with interstate commerce must be shown with respect to all three offenses embraced by the provision. Pp. 339—351.
434 F.2d 1296, affirmed.
Roger A. Pauley, Washington, D.C., for petitioner.
William E. Hellerstein, New York City, for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Respondent was convicted in the Southern District of New York of possessing firearms in violation of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.App. § 1202(a). In pertinent part, that statute reads:
2
'Any person who—
3
(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony . . . and who receives, possesses, or transports in commerce or affecting commerce . . . any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.'1
4
The evidence showed that respondent, who had previously been convicted of a felony in New York State, possessed on separate occasions a pistol and then a shotgun. There was no allegation in the indictment and no attempt by the prosecution to show that either firearm had been possessed 'in commerce or affecting commerce.' The Government proceeded on the assumption that § 1202(a) (1) banned all possessions and receipts of firearms by convicted felons, and that no connection with interstate commerce had to be demonstrated in individual cases.
5
After his conviction,2 respondent unsuccessfully moved for arrest of judgment on two primary grounds: that the statute did not reach possession of a firearm not shown to have been 'in commerce or affecting commerce,' and that, if it did, Congress had overstepped its constitutional powers under the Commerce Clause. 308 F.Supp. 1385. The Court of Appeals reversed the conviction, being of the view that if the Government's construction of the statute were accepted, there would be substantial doubt about the statute's constitutionality. 434 F.2d 1296 (CA 2). We granted certiorari, 401 U.S. 993, 91 S.Ct. 1234, 28 L.Ed.2d 530 to resolve a conflict among lower courts over the proper reach of the statute.3 We affirm the judgment of the court below, but for substantially different reasons.4 We conclude that § 1202 is ambiguous in the critical respect. Because its sanctions are criminal and because, under the Government's broader reading, the statute would mark a major inroad into a domain traditionally left to the States, we refuse to adopt the broad reading in the absence of a clearer direction from Congress.
6
* Not wishing 'to give point to the quip that only when legislative history is doubtful do you go to the statute,'5 we begin by looking to the text itself. The critical textual question is whether the statutory phrase 'in commerce or affecting commerce' applies to 'possesses' and 'receives' as well as to 'transports.' If it does, then the Government must prove as an essential element of the offense that a possession, receipt, or transportation was 'in commerce or affecting commerce'—a burden not undertaken in this prosecution for possession.
7
While the statute does not read well under either view, 'the natural construction of the language' suggests that the clause 'in commerce or affecting commerce' qualifies all three antecedents in the list. Porto Rico Railway Light & Power Co. v. Mor, 253 U.S. 345, 348, 40 S.Ct. 516, 518, 64 L.Ed. 944 (1920). Since 'in commerce or affecting commerce' undeniably applies to at least one antecedent, and since it makes sense with all three, the more plausible construction here is that it in fact applies to all three. But although this is a beginning, the argument is certainly neither overwhelming nor decisive.6
8
In a more significant respect, however, the language of the statute does provide support for respondent's reading. Undeniably, the phrase 'in commerce or affecting commerce' is part of the 'transports' offense. But if that phrase applies only to 'transports,' the statute would have a curious reach. While permitting transportation of a firearm unless it is transported 'in commerce or affecting commerce,' the statute would prohibit all possessions of firearms, and both interstate and intrastate receipts. Since virtually all transportations, whether interstate or intrastate, involve an accompanying possession or receipt, it is odd indeed to argue that on the one hand the statute reaches all possessions and receipts, and on the other hand outlaws only interstate transportations. Even assuming that a person can 'transport' a firearm under the statute without possessing or receiving it, there is no reason consistent with any discernible purpose of the statute to apply an interstate commerce requirement to the 'transports' offense alone.7 In short, the Government has no convincing explanation for the inclusion of the clause 'in commerce or affecting commerce' if that phrase only applies to the word 'transports.' It is far more likely that the phrase was meant to apply to 'possesses' and 'receives' as well as 'transports.' As the court below noted, the inclusion of such a purase 'mirror(s) the approach to federal criminal jurisdiction reflected in many other federal statutes.'8
9
Nevertheless, the Government argues that its reading is to be preferred because the defendant's narrower interpretation would make Title VII redundant with Title IV of the same Act. Title IV, inter alia, makes it a crime for four categories of people—including those convicted of a crime punishable for a term exceeding one year—'to ship or transport any firearm or ammunition in interstate or foreign commerce . . . (or) to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.' 18 U.S.C. § 922(g) and (h). As Senator Long, the sponsor of Title VII, represented to Senator Dodd, the sponsor of Title IV, Title VII indeed does complement Title IV. 114 Cong.Rec. 14774; see also 114 Cong.Rec. 16286. Respondent's reading of Title VII is fully consistent with this view. First, although subsections of the two Titles do address their prohibitions to some of the same people, each statute also reaches substantial groups of people not reached by the other.9 Secondly, Title VII complements Title IV by punishing a broader class of behavior. Even under respondent's view, a Title VII offense is made out if the firearm was possessed or received 'in commerce or affecting commerce'; however, Title IV apparently does not reach possessions or intrastate transactions at all, even those with an interstate commerce nexus, but is limited to the sending or receiving of firearms as part of an interstate transportation.10
10
In addition, whatever reading is adopted, Title VII and Title IV are, in part, redundant. The interstate commerce requirement in Title VII minimally applies to transportation. Since Title IV also prohibits convicted criminals from transporting firearms in interstate commerce, the two Titles overlap under both readings. The Government's broader reading of Title VII does not eliminate the redundancy, but simply creates a larger area in which there is no overlap. While the Government would be on stronger ground if its reading were necessary to give Title VII some unique and independent thrust, this is not the case here. In any event, circumstances surrounding the passage of Title VII make plain that Title VII was not carefully molded to complement Title IV. Title VII was a last-minute Senate amendment to the Omnibus Crime Control and Safe Streets Act. The Amendment was hastily passed, with little discussion, no hearings and no report.11 The notion that it was enacted to dovetail neatly with Title IV rests perhaps on a conception of the model legislative process; but we cannot pretend that all statutes are model statutes. While courts should interpret a statute with an eye to the surrounding statutory landscape and an ear for harmonizing potentially discordant provisions, these guiding principles are not substitutes for congressional lawmaking. In our view, no conclusion can be drawn from Title IV concerning the correct interpretation of Title VII.
11
Other aspects of the meager legislative history, however, do provide some significant support for the Government's interpretation. On the Senate floor, Senator Long, who introduced § 1202, described various evils that prompted his statute. These evils included assassinations of public figures and threats to the operation of businesses significant enough in the aggregate to affect commerce.12 Such evils, we note, would be most thoroughly mitigated by forbidding every possession of any firearm by specified classes of especially risky people, regardless of whether the gun was possessed, received, or transported 'in commerce or affecting commerce.' In addition, specific remarks of the Senator can be read to state that the amendment reaches the mere possession of guns without any showing of an interstate commerce nexus.13 But Senator Long never specifically says that no connection with commerce need be shown in the individual case. And nothing in his statements explains why, if an interstate commerce nexus is irrelevant in individual cases, the phrase 'in commerce or affecting commerce' is in the statute at all.14 But even if Senator Long's remarks were crystal clear to us, they were apparently not crystal clear to his congressional colleagues. Meager as the discussion of Title VII was, one of the few Congressmen who discussed the amendment summarized Title VII as 'mak(ing) it a Federal crime to take, possess, or receive a firearm across State lines . . ..' 114 Cong.Rec. 16298 (statement of Rep. Pollock).
12
In short, 'the legislative history of (the) Act hardly speaks with that clarity of purpose which Congress supposedly furnishes courts in order to enable them to enforce its true will.' Universal Camera Corp. v. NLRB, 340 U.S. 474, 483, 71 S.Ct. 456, 462, 95 L.Ed. 456 (1951). Here, as in other cases, the various remarks by legislators 'are sufficiently ambiguous, insofar as this narrow issue is concerned . . . to invite mutually destructive dialectic,' and not much more. FCC v. Columbia Broadcasting System, 311 U.S. 132, 136, 61 S.Ct. 152, 154, 85 L.Ed. 87 (1940). Taken together, the statutory materials are inconclusive on the central issue of whether or not the statutory phrase 'in commerce or affecting commerce' applies to 'possesses' and 'receives' as well as 'transports.' While standing alone, the legislative history might tip in the Government's favor, the respondent explains far better the presence of critical language in the statute. The Government concedes that 'the statute is not a model of logic or clarity.' Pet. for Cert. 5. After 'seiz(ing) every thing from which aid can be derived,' United States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304 (1805) (Marshall, C.J.), we are left with an ambiguous statute.
II
13
Given this ambiguity, we adopt the narrower reading: the phrase 'in commerce or affecting commerce' is part of all three offenses, and the present conviction must be set aside because the Government has failed to show the requisite nexus with interstate commerce. This result is dictated by two wise principles this Court has long followed.
14
First, as we have recently reaffirmed, 'ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.' Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971). See also Ladner v. United States, 358 U.S. 169, 177, 79 S.Ct. 209, 213, 3 L.Ed.2d 199 (1958); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); United States v. Five Gambling Devices, etc., 346 U.S. 441, 74 S.Ct. 190, 98 L.Ed. 179 (1953) (plurality opinion for affirmance). In various ways over the years, we have stated that 'when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.' United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221—222, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952). This principle is founded on two policies that have long been part of our tradition. First, 'a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so fair as possible the line should be clear.' McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931) (Holmes, J.).15 See also United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200 (1952). Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies 'the instinctive distastes against men languishing in prison unless the lawmaker has clearly said they should.' H. Friendly Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967). Thus, where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant. Here, we conclude that Congress has not 'plainly and unmistakably,' United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 411, 61 L.Ed. 857 (1917), made it a federal crime for a convicted felon simply to possess a gun absent some demonstrated nexus with interstate commerce.
15
There is a second principle supporting today's result: unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance.16 Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States.17 This congressional policy is rooted in the same concepts of American federalism that have provided the basis for judge-made doctrines. See, e.g., Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). As this Court emphasized only last Term in Rewis v. United States, supra, we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction. In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision. In Rewis, we declined to accept an expansive interpretation of the Travel Act. To do so, we said then, 'would alter sensitive federalstate relationships (and) could overextend limited federal police resources.' While we noted there that '(i)t is not for us to weigh the merits of these factors,' we went on to conclude that 'the fact that they are not even discussed in the legislative history . . . strongly suggests that Congress did not intend that (the statute have the broad reach).' 401 U.S., at 812, 91 S.Ct., at 1059. In the instant case, the broad construction urged by the Government renders traditionally local criminal conduct a matter for federal enforcement and would also involve a substantial extension of federal police resources. Absent proof of some interstate commerce nexus in each case, § 1202(a) dramatically intrudes upon traditional state criminal jurisdiction. As in Rewis, the legislative history provides scanty basis for concluding that Congress faced these serious questions and meant to affect the federal-state balance in the way now claimed by the Government. Absent a clearer statement of intention from Congress than is present here, we do not interpret § 1202(a) to reach the 'mere possession' of firearms.
III
16
Having concluded that the commerce requirement in § 1202(a) must be read as part of the 'possesses' and 'receives' offenses, we add a final word about the nexus with interstate commerce that must be shown in individual cases. The Government can obviously meet its burden in a variety of ways. We note only some of these. For example, a person 'possesses . . . in commerce or affecting commerce' if at the time of the offense the gun was moving interstate or on an interstate facility, or if the possession affects commerce. Significantly broader in reach, however, is the offense of 'receiv(ing) . . . in commerce or affecting commerce,' for we conclude that the Government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce.18 This is not the narrowest possible reading of the statute, but canons of clear statement and strict construction do 'not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature.' United States v. Bramblett, 348 U.S. 503, 510, 75 S.Ct. 504, 508, 99 L.Ed. 594 (1955). We have resolved the basic uncertainty about the statute in favor of the narrow reading, concluding that 'in commerce or affecting commerce' is part of the offense of possessing or receiving a firearm. But, given the evils that prompted the statute and the basic legislative purpose of restricting the firearm-related activity of convicted felons, the readings we give to the commerce requirement, although not all narrow, are appropriate. And consistent with our regard for the sensitive relation between federal and state criminal jurisdiction, our reading preserves as an element of all the offenses a requirement suited to federal criminal jurisdiction alone.
17
The judgment is affirmed.
18
Affirmed.
19
Mr. Justice BRENNAN joins the judgment of the Court and the opinion except for Part III. No question of the quantum of evidence necessary to establish the Government's prima facie case is before the Court and he would await a case properly presenting that question before deciding it.
20
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE, joins, dissenting.
21
I cannot join the Court's opinion and judgment. Five of the six United States courts of appeals that have passed upon the issue presented by this case have decided it adversely to the position urged by the respondent here. United States v. Cabbler, 429 F.2d 577 (CA4 1970), cert. denied, 400 U.S. 901, 91 S.Ct. 138, 27 L.Ed.2d 138; United States, v. Mullins, 432 F.2d 1003 (CA4 1970); United States v. Donofrio, 450 F.2d 1054 (CA5 1971); Stevens v. United States, 440 F.2d 144 (CA6 1971) (one judge dissenting); United States v. Synnes, 438 F.2d 764 (CA8 1971); United States v. Wiley, 438 F.2d 773 (CA8 1971); United States v. Taylor, 438 F.2d 774 (CA8 1971); United States v. Daniels, 431 F.2d 697 (CA9 1970); United States v. Crow, 439 F.2d 1193 (CA9 1971). Only the Second Circuit stands opposed.1
22
1. The statute, 18 U.S.C.App. § 1202 (a), when it speaks of one 'who receives, possesses, or transports in commerce or affecting commerce,' although arguably ambiguous and, as the Government concedes, 'not a model of logic or clarity,'2 is clear enough. The structure of the vital language and its punctuation make it refer to one who receives, to one who possesses, and to one who transports in commerce. If one wished to say that he would welcome a cat, would welcome a dog, or would welcome a cow that jumps over the moon, he would likely say 'I would like to have a cat, a dog, or a cow that jumps over the moon.' So it is here.
23
2. The meaning the Court implants on the statute is justified only by the addition and interposition of a comma after the word 'transports.' I perceive no warrant for this judicial transfiguration.
24
3. In the very same statute the phrase 'after the date of enactment of this Act' is separated by commas and undeniably modifies each of the preceding words, 'receives,' 'possesses,' and 'transports.' Obviously, then, the draftsman—and the Congress—knew the use of commas for phrase modification. We should give effect to the only meaning attendant upon that use.
25
4. The specific finding in 18 U.S.C.App. § 12013 clearly demonstrates that Congress was attempting to reach and prohibit every possession of a firearm by a felon; that Congress found that such possession, whether interstate or intrastate, affected interstate commerce; and that Congress did not conclude that intrastate possession was a matter of less concern to it than interstate possession. That finding was unnecessary if Congress also required proof that each receipt or possession of a firearm was in or affected interstate or foreign commerce.
26
5. Senator Long's explanatory comments reveal clearly the purpose, the intent, and the extent of the legislation:
27
'I have prepared an amendment which I will offer at an appropriate time, simply setting forth the fact that anybody who has been convicted of a felony . . . is not permitted to possess a firearm . . ..
28
'It might be well to analyze, for a moment, the logic involved. When a man has been convicted of a felony, unless as this bill sets forth—he has been expressly pardoned by the President and the pardon states that the person is to be permitted to possess firearms in the future, that man would have no right to possess firearms. He would be punished criminally if he is found in possession of them.' 114 Cong.Rec. 13868 (emphasis supplied).
29
'So Congress simply finds that the possession of these weapons by the wrong kind of people is either a burden on commerce or a threat that affects the free flow of commerce.
30
'You cannot do business in an area, and you certainly cannot do as much of it and do it as well as you would like, if in order to do business you have to go through a street where there are burglars, murderers, and arsonists armed to the teeth against innocent citizens. So the threat certainly affects the free flow of commerce.' 114 Cong.Rec. 13869 (emphasis supplied).
31
'What the amendment seeks to do is to make it unlawful for a firearm—be it a handgun, a machinegun, a longrange rifle, or any kind of firearm—to be in the possession of a convicted felon who has not been pardoned and who has therefore lost his right to possess firearms. . . . It also relates to the transportation of firearms.
32
'Clauses 1—5 describe persons who, by their actions, have demonstrated that they are dangerous, or that they may become dangerous. Stated simply, they may not be trusted to possess a firearm without becoming a threat to society. This title would apply both to hand guns and to long guns.
33
'All of these murderers had shown violent tendencies before they committed the crime for which they are most infamous. They should not have been permitted to possess a gun. Yet, there is no Federal law which would deny possession to these undesirables.
34
'The killer of Medgar Evers, the murderer of the three civil rights workers in Mississippi, the defendants who shot Captain Lemuel Penn (on a highway while he was driving back to Washington after completion of reserve Military duty) would all be free under present Federal law to acquire another gun and repeat those same sorts of crimes in the future.
35
'So under Title VII, every citizen could possess a gun until the commission of his first felony. Upon his conviction, however, Title VII would deny every assassin, murderer, thief and burglar of the right to possess a firearm in the future except where he has been pardoned by the President or a State Governor and has been expressly authorized by his pardon to possess a firearm.
36
'It has been said that Congress lacks the power to outlaw mere possession of weapons. . . .
37
'. . . The important point is that this legislation demonstrates that possession of a deadly weapon by the wrong people can be controlled by Congress, without regard to where the police power resides under the Constitution.
38
'Without question, the Federal Government does have power to control possession of weapons where such possession could become a threat to interstate commerce . . ..
39
'State gun control laws where they exist have proven inadequate to bar possession of firearms from those most likely to use them for unlawful purposes . . ..
40
'Nor would Title VII impinge upon the rights of citizens generally to possess firearms for legitimate and lawful purposes. It deals solely with those who have demonstrated that they cannot be trusted to possess a firearm—those whose prior acts—mostly voluntary—have placed them outside of our society. . . .
41
'. . . I am convinced that we have enough constitutional power to prohibit these categories of people from possessing, receiving, or transporting a firearm. . . .
42
'This amendment would provide that a convicted felon who participates in one of these marches and is carrying a firearm would be violating the law. . . .' 114 Cong.Rec. 14773—14774 (emphasis supplied).
43
One cannot detect in these remarks any purpose to restrict or limit the type of possession that was being considered for proscription.
44
6. The Court's construction of § 1202(a), limiting its application to interstate possession and receipt, shrinks the statute into something little more than a duplication of 18 U.S.C. §§ 922(g) and (h). I cannot ascribe to Congress such a gesture of nonaccomplishment.
45
I thus conclude that § 1202(a) was intended to and does reach all possessions and receipts of firearms by convicted felons, and that the Court should move on and decide the constitutional issue present in this case.
1
Section 1202(a) reads in full:
'Any person who—
'(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or
'(2) has been discharged from the Armed Forces under dishonorable conditions, or
'(3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or
'(4) having been a citizen of the United States has renounced his citizenship, or
'(5) being an alien is illegally or unlawfully in the United States, and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.'
2
Respondent was acquitted on another count charging him with carrying a firearm during the commission of a felony (the sale of a narcotic drug), a federal offense under 18 U.S.C. § 924(c)(2).
3
At this date, six circuits and numerous district courts have decided the issue. The Government's view was adopted in United States v. Cabbler, 429 F.2d 577 (CA 4 1970), cert. denied, 400 U.S. 901, 91 S.Ct. 138, 27 L.Ed.2d 138; United States v. Donofrio, 450 F.2d 1054 (CA 5 1971); Stevens v. United States, 440 F.2d 144 (CA 6 1971) (one judge dissenting); United States v. Synnes, 438 F.2d 764 (CA 8 1971); United States v. Daniels, 431 F.2d 697 (CA9 1970). The result reached by the Second Circuit in this case has also been reached in United States v. Harbin, 313 F.Supp. 50 (N.D.Ind.1970); United States v. Steed, No. CR 70—57 (WD Tenn., May 11, 1970); United States v. Phelps, No. CR—14,465 (MD Tenn., Feb. 10, 1970); United CR—14465 (MD Tenn.1970); United States v. Francis, No. CR 12,684 (ED Tenn., Dec. 12, 1969).
4
In light of our disposition of the case, we do not reach the question whether, upon appropriate findings, Congress can constitutionally punish the 'mere possession' of firearms; thus, we need not consider the relevance, in that connection, of our recent decision in Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). The question whether the definition of 'felony' in § 1202(c)(2) creates a classification violating the Fifth Amendment was not raised in the Government's Petition for Certiorari, and is also not considered here.
5
Frankfurter, Some Reflections on the Reading of Statutes, 47 Col.L.Rev. 527, 543 (1947).
6
Compare United States v. Standard Brewery, Inc., 251 U.S. 210, 218, 40 S.Ct. 139, 140, 64 L.Ed. 229 (1920), with FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389—390, 79 S.Ct. 818, 822, 823, 3 L.Ed.2d 893 (1959); see also 2 J. Sutherland Statutory Construction § 4921 (3d ed. 1943); K. Llewellyn, The Common Law Tradition 527 (1960).
The Government, noting that there is no comma after 'transports,' argues that the punctuation indicates a congressional intent to limit the qualifying phrase to the last antecedent. But many leading grammarians, while sometimes noting that commas at the end of series can avoid ambiguity, concede that use of such commas is discretionary. See, e.g., B. Evans & C. Evans, A Dictionary of Contemporary American Usage 103 (1957); M. Nicholson, A Dictionary of American-English Usage 94 (1957); R. Copperud, A Dictionary of Usage and Style 94—95 (1964); cf. W. Strunk & E. White, The Elements of Style 1—2 (1959). When grammarians are divided, and surely where they are cheerfully tolerant, we will not attach significance to an omitted comma. It is enough to say that the statute's punctuation is fully consistent with the respondent's interpretation, and that in this case grammatical expertise will not help to clarify the statute's meaning.
7
The Government urges that 'transports' includes the act of 'causing a firearm to be transported,' and therefore would connote an offense separate in some cases from 'receives' or 'possesses.' From this, the Government argues that 'Congress might have felt that the broader scope of the term 'transports,' as compared to the terms 'receives' or 'possesses,' justified its qualification by the interstate commerce requirement.' Brief for the United States 14—15. The Government's view about the comparative breadth of the various offenses certainly does not follow from its definition of 'transports.' But beyond that, its argument about what Congress 'might have felt' is purely speculative, and finds no support in any arguable purpose of the statute. There is certainly no basis for concluding that Congress was less concerned about the transporting and supplying of guns than their acquisition.
8
434 F.2d, at 1298. See, e.g., 18 U.S.C. § 2421 (prostitution); 18 U.S.C. § 1952 (Travel Act); 18 U.S.C. § 1951 (robbery and extortion); 18 U.S.C. § 1231 (strikebreaking); 18 U.S.C. § 1201 (kidnaping); 18 U.S.C. § 1084 (gambling); 18 U.S.C. § 842(i) (explosives); 15 U.S.C. § 1 et seq. (antitrust); 15 U.S.C. § 77e (securities fraud).
9
Title VII limits the firearm-related activity of convicted felons, dishonorable discharges from the Armed Services, persons adjudged 'mentally incompetent,' aliens illegally in the country, and former citizens who have renounced their citizenship. See n. 1, supra. A felony is defined as 'any offense punishable by imprisonment for a term exceeding one year, but does not include any offense (other than one involving a firearm or explosive) classified as a misdemeanor under the laws of a State and punishable by a term of imprisonment of two years or less . . ..' 18 U.S.C.App. § 1202(c)(2).
Title IV reaches persons 'under indictment for, or . . . convicted in any court of, a crime punishable by imprisonment for a term exceeding one year'; fugitives from justice; users or addicts of various drugs; persons adjudicated as 'mental defective(s) or . . . committed' to a mental institution. 18 U.S.C. § 922(g) and (h).
10
Title IV, 18 U.S.C. § 922(g) and (h), is a modified and recodified version of 15 U.S.C. § 902(e) and (f) (1964 ed.), 75 Stat. 757, which in turn amended the original statute passed in 1938, 52 Stat. 1250, 1251. Each amendment enlarged the group of people coming within the Act's substantive prohibitions against transportation or receipt of firearms in interstate commerce. The wording of the substantive offense has remained identical, although the original Act had a provision that possession of a firearm 'shall be presumptive evidence that such firearm or ammunition was shipped or transported or received (in interstate or foreign commerce).' That presumption was struck down in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), and the Court there noted:
'(T)he Act is confined to the receipt of firearms or ammunition as a part of interstate transportation and does not extend to the receipt, in an intrastate transaction, of such articles which, at some prior time, have been transported interstate.' Id., at 466, 63 S.Ct., at 1244. While the reach of Title IV itself is a question to be decided finally some other day, the Government has presented here no learning or other evidence indicating that the 1968 Act changed the prior approach to the 'receipt' offense. See, e.g., S.Rep.No.1097, 90th Cong., 2d Sess., 115 (1968); U.S.Code Cong. & Admin.News, p. 2112.
11
The Omnibus Crime Control and Safe Streets Act of 1968 started its life as a measure designed to aid state and local governments in law enforcement by means of financial and administrative assistance. See H.R.Rep.No.488, 90th Cong., 1st Sess. (1967). The bill passed the House on August 8, 1967, and went to the Senate. A similar bill was introduced in the Senate (S. 917) and went to the Committee on the Judiciary, which rewrote it completely. See S.Rep.No.1097, 90th Cong., 2d Sess., supra. The amendments included the much-debated provisions regarding the admissibility of confessions, wiretapping, and state firearms control.
On May 17, 1968, Senator Long introduced on the floor his amendment to S. 917, which he designated Title VII. His introductory remarks set forth the purpose of the amendment. 114 Cong.Rec. 13867—13869. About a week later he explained his amendment once again. There was a brief debate; the reaction was favorable but cautious, with 'further thought' and 'study' being suggested by several favorably inclined Senators who observed some problems with the bill as drafted. Unexpectedly, however, there was a call for a vote and Title VII passed without modification. See 114 Cong.Rec. 14772—14775. The amendment received only passing mention in the House discussion of the bill, 114 Cong.Rec. 16286, 16298, and never received committee consideration or study in the House either.
12
See 114 Cong.Rec. 13868—13871, 14772—14775.
13
For example, Senator Long began his floor statement by announcing:
'I have prepared an amendment which I will offer at an appropriate time, simply setting forth the fact that anybody who has been convicted of a felony (or comes within certain other categories) . . . is not permitted to possess a firearm . . ..' 114 Cong.Rec. 13868.
14
For the same, and additional, reasons, § 1201, which contains the congressional 'findings' applicable to § 1202(a), is not decisive support for the Government. That section reports that:
'The Congress hereby finds and declares that the receipt, possession, or transportation of a firearm by felons, veterans who are discharged under dishonorable conditions, mental incompetents, aliens who are illegally in the country, and former citizens who have renounced their citizenship, constitutes—
'(1) a burden on commerce or threat affecting the free flow of commerce,
'(2) a threat to the safety of the President of the United States and Vice President of the United States,
'(3) an impediment or a threat to the exercise of free speech and the free exercise of a religion guaranteed by the first amendment to the Constitution of the United States, and
'(4) a threat to the continued and effective operation of the Government of the United States and of the government of each State guaranteed by article IV of the Constitution.'
The Government argues that these findings would have been 'wholly unnecessary' unless Congress intended to prohibit all receipts and possessions of firearms by felons. But these findings of 'burdens' and 'threats' simply state Congress' view of the constitutional basis for its power to act; the findings do not tell us how much of Congress' perceived power was in fact invoked. That the findings in fact support a statute broader than the one actually passed is suggested by the fact that 'in commerce or affecting commerce' does not appear at all in the introductory clause to the 'findings,' even though § 1202(a) contains the phrase and concededly reaches only transportation 'in commerce or affecting commerce.'
15
Holmes prefaced his much-quoted statement with the observation that 'it is not likely that a criminal will carefully consider the text of the law before he murders or steals . . ..' But in the case of gun acquisition and possession it is not unreasonable to imagine a citizen attempting to '(steer) a careful course between violation of the statute (and lawful conduct),' United States v. Hood, 343 U.S. 148, 151, 72 S.Ct. 568, 570, 96 L.Ed. 846 (1952). Of course, where there is a state law prohibiting felons from possessing firearms, as in New York State, N.Y. Penal Law § 265.05 (McKinney's Consol.Laws, c. 40, Supp.1971 1972), it may be unreal to argue that there are notice problems under the federal law. There are many States, however, that do not have their own laws prohibiting felons from possessing firearms. See Geisel, Roll, & Wettick, The Effectiveness of State and Local Regulation of Handguns: A Statistical Analysis, 1969 Duke L.J. 647, 652—653. Since ex-offenders in these States are limited only by the federal gun control laws, the notice problem of that law may be quite real.
16
Apex Hosiery Co. v. Leader, 310 U.S. 469, 513, 60 S.Ct. 982, 1002, 84 L.Ed. 1311 (1940); United States v. Five Gambling Devices, etc., 346 U.S. 441, 449—450, 74 S.Ct. 190, 194—195, 98 L.Ed. 179 (1953) (plurality opinion); FTC v. Bunte Bros., Inc., 312 U.S. 349, 351, 354—355, 61 S.Ct. 580, 581, 583—584, 85 L.Ed. 881 (1941); Frankfurter, Some Reflections on the Reading of Statutes, 47 Col.L.Rev. 527, 539—540 (1947). Cf. United Auto, Aircraft and Agr. Implement Workers v. Wisconsin Employment Relations Board, 351 U.S. 266, 274—275, 76 S.Ct. 794, 799—800, 100 L.Ed. 1162 (1956); Palmer v. Massachusetts, 308 U.S. 79, 83—84, 60 S.Ct. 34, 36—37, 84 L.Ed. 93 (1939); Leiter Minerals, Inc. v. United States, 352 U.S. 220, 225—226, 77 S.Ct. 287, 290—291, 1 L.Ed.2d 267 (1957).
17
H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1241 (tent. ed. 1958).
18
This reading preserves a significant difference between the 'receipt' offenses under Title IV and Title VII. See supra, 342—343.
1
Unappealed district court decisions are in conflict. Those upholding the Government's position include United States v. Davis, 314 F.Supp. 1161 (ND Miss. 1970); United States v. Vicary, No. CR 44,205 (ED Mich., June 29, 1970) (en banc); United States v. Childress, No. 8039—R (ED Va., Jan. 6, 1969); United States v. Boggs, No. 8138 (Wyo., June 17, 1970). Those opposed include United States v. Harbin, 313 F.Supp. 50 (ND Ind.1970); United States v. Steed, No. CR 70—57 (WD Tenn., May 11, 1970); United States v. Phelps, No. CR 14,465 (MD Tenn., Feb. 10, 1970); United States v. Francis, No. CR 12,684 (ED Tenn., Dec. 12, 1969).
2
Pet. for Cert. 5.
3
'§ 1201. Congressional findings and declaration.
'The Congress hereby finds and declares that the receipt, possession, or transportation of a firearm by felons . . . constitutes—
'(1) a burden on commerce or threat affecting the free flow of commerce . . ..'
| 01
|
404 U.S. 357
92 S.Ct. 479
30 L.Ed.2d 502
John SCHILB et al., Appellants,v.Vincent P. KUEBEL et al.
No. 70—90.
Argued Oct. 12, 1971.
Decided Dec. 20, 1971.
Rehearing Denied Feb. 22, 1972.
See 405 U.S. 948, 92 S.Ct. 930.
Syllabus
Illinois law provides three ways in which an accused can secure his pretrial release: (1) personal recognizance; (2) execution of a bail bond, with a deposit of 10% of the bail, all but 10% of which (amounting to 1% of the bail) is returned on performance of the bond conditions, and (3) execution of a bail bond, secured by a full-amount deposit in cash, authorized securities, or certain real estate, all of which is returned on performance of the bond conditions. Appellant Schilb, charged with two traffic offenses, secured pretrial release after depositing 10% of the bail fixed. He was convicted of one offense and acquitted of the other. After he paid his fine, all but 1% of the bail (amounting to $7.50) was refunded. In this class action he thereafter challenged the Illinois system on due process and equal protection grounds, claiming that the 1% retention charge is imposed on only one segment of the class gaining pretrial release, and on the poor but not on the rich; and that its imposition on an accused found innocent constitutes a court cost against the nonguilty. The trial court dismissed Schilb's complaint, and the State Supreme Court affirmed. Held:
1. The Illinois bail system does not violate equal protection requirements. Pp. 484—487.
(a) The facts that the State has no safekeeping costs where release is on personal recognizance and has never imposed a charge with respect to a recognizance provide a rational basis for distinguishing that situation from the situations where deposits are made. Though the administrative costs of the deposit systems are substantially the same, other factors afford a rational basis for making no charge under the full-amount-deposit system. Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 149, 16 L.Ed.2d 577, distinguished. Pp. 367—369.
(b) There is no indication that the personal recognizance system is not used without regard to the economic status of the accused, or that the full-deposit system actually favors the affluent. Pp. 369—370.
2. No due process denial results from retention of the 1% charge, which is an administrative fee (and not a cost of prosecution), imposed on all—guilty and innocent alike—who seek its benefit. Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447, distinguished Pp. 370—371.
46 Ill.2d 538, 264 N.E.2d 377, affirmed.
John J. O'Toole, Chicago, Ill., for appellants.
James A. Rooney, Chicago, Ill., for appellees, pro hac vice, by special leave of Court.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
John Schilb, of Belleville, Illinois, was arrested on January 16, 1969, and charged (a) with leaving the scene of an automobile accident and (b) with obstructing traffic. In order to gain his liberty pending trial, and in accord with the Illinois bail statutes hereinafter described, Schilb deposited $75 in cash with the clerk of the court. This amount was 10% of the aggregate bail fixed on the two charges ($500 on the first and $250 on the second). At his ensuing trial Schilb was acquitted of the charge of leaving the scene, but was convicted of traffic obstruction. When he paid his fine, the amount Schilb had deposited was returned to him decreased, however, by $7.50 retained as 'bail bond costs' by the court clerk pursuant to the statute. The amount so retained was 1% of the specified bail and 10% of the amount actually deposited.
2
Schilb, by this purported state class action against the court clerk, the county, and the county treasurer, attacks the statutory 1% charge on Fourteenth Amendment due process and equal protection grounds.1 The Circuit Court of St. Clair County upheld the statute and dismissed the complaint. The Supreme Court of Illinois affirmed, with two justices dissenting. 46 Ill.2d 538, 264 N.E.2d 377 (1970). We noted probable jurisdiction. 402 U.S. 928, 91 S.Ct. 1524, 28 L.Ed.2d 862 (1971).
3
* The Illinois bail statutes compose Article 110 of the State's Code of Criminal Procedure of 1963, made effective January 1, 1964. This Code complemented Illinois' then new and revised Criminal Code of 1961, made effective January 1, 1962. The work of revision of the theretofore existing statutes was that of a Joint Committee of the Illinois State and Chicago Bar Associations. See 1 Ill.Rev.Stat. 1963, p. 1629.
4
Prior to 1964 the professional bail bondsman system with all its abuses2 was in full and odorous bloom in Illinois. Under that system the bail bondsman customarily collected the maximum fee (10% of the amount of the bond) permitted by statute, House Bill No. 734, approved July 17, 1959, Ill.Laws, 1959, pp. 1372, 1376, and retained that entire amount even though the accused fully satisfied the conditions of the bond. See People ex rel. Gendron v. Ingram, 34 Ill.2d 623, 626, 217 N.E.2d 803, 805 (1966). Payment of this substantial 'premium' was required of the good risk as well as of the bad. The results were that a heavy and irretrievable burden fell upon the accused, to the excellent profit of the bondsman, and that professional bondsmen, and not the courts, exercised significant control over the actual workings of the bail system.
5
One of the stated purposes of the new bail provisions in the 1963 Code was to rectify this offensive situation. The purpose appears to have been accomplished. It is said that the bail bondsman abruptly disappeared in Illinois 'due primarily to the success of the ten percent bail deposit provision.' Boyle, Bail Under the Judicial Article, 17 De Paul L.Rev. 267, 272 (1968). See Kamin, Bail Administration in Illinois, 53 Ill.B.J. 674, 680 (1965).
II
6
Article 110 of the 1963 Code, as it read at the time Schilb was arrested and charged, provided that an eligible accused could obtain pretrial release in one of three ways:
7
(1) Under § 110—2 he may be released on his personal recognizance.3
8
(2) Under § 110—7 he may execute a bail bond and deposit with the clerk cash equal to only 10% of the bail or $25, whichever is the greater.4 When bail is made in this way and the conditions of the bond have been performed, the clerk returns to the accused 90% of the sum deposited. The remaining 10% (1% of the bail) is retained by the clerk 'as bail bond costs.'
9
(3) Under § 110—8 he may execute a bail bond and secure it by a deposit with the clerk of the full amount of the bail in cash, or in stocks and bonds authorized for trust funds in Illinois, or by unencumbered nonexempt Illinois real estate worth double the amount of the bail.5 When bail is made in this way and the conditions of the bond have been performed, the clerk returns the deposit of cash or stocks or bonds, or releases the real estate, as the case may be, without charge or retention of any amount.
10
In each case bail is fixed by a judicial officer. Section 110 5 prescribes factors to be considered in fixing the amount of bail.6 Under § 110—6 either the State or the defendant may apply to the court for an increase or for a reduction in the amount of bail or for alternation of the bond's conditions.7
11
The choice between § 110—7 and § 110—8 is reserved to the accused.
12
The thinking and intentions of the Joint Committee revisers are apparent from the Committee's comments, as revised by its Chairman, Professor Charles H. Bowman, and reproduced in Ill.Ann.Stat., c. 38 (Smith-Hurd ed. 1970).8
13
The parties have stipulated that when bail in a particular case is fixed, the judge's 'discretion in such respect is not guided by state, rule of court or any definite, fixed standard; various and divers judges in fact fix the amount of bail for the same types of offenses at various and divers amounts, without relationship as to guilt or innocence of the particular defendant in a criminal charge, and without relationship of the particular offense charged and the bail fixed.' They have also stipulated, 'The actual cost of administering the provisions of said Sections 110—7 and 110—8 are substantially the same but there may probably be a slightly greater cost in the administration of Section 110—8.'
III
14
The Court more than once has said that state legislative reform by way of classification is not to be invalidated merely because the legislature moves one step at a time. 'The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.' Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955). 'Legislatures are presumed to have acted constitutionally . . . and their statutory classifications will be set aside only if no grounds can be conceived to justify them. . . . With this much discretion, a legislature traditionally has been allowed to take reform 'one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind." McDonald v. Board of Election Commissioners, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969). The measure of equal protection has been described variously as whether 'the distinctions drawn have some basis in practical experience,' South Carolina v. Katzenbach, 383 U.S. 301, 331, 86 S.Ct., 803, 820, 15 L.Ed.2d 769 (1966), or whether the legislature's action falls short of 'the invidious discrimination,' Williamson v. Lee Optical Co., 348 U.S., at 489, 75 S.Ct., at 465, or whether 'any state of facts reasonably may be conceived to justify' the statutory discrimination, McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct., 1101, 1105, 6 L.Ed.2d 393 (1961); see United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 6, 91 S.Ct. 16, 17, 27 L.Ed.2d 4 (1970), or whether the classification is 'on the basis of criteria wholly unrelated to the objective of (the) statute,' Reed v. Reed, 404 U.S. 71, at 76, 92 S.Ct. 251, at 254, 30 L.Ed.2d 225 (1971). But the Court also has refined this traditional test and has said that a statutory classification based upon suspect criteria or affecting 'fundamental rights' will encounter equal protection difficulties unless justified by a 'compelling governmental interest.' Shapiro v. Thompson, 394 U.S. 618, 634, 638, 89 S.Ct. 1322, 1331, 1333, 22 L.Ed.2d 600 (1969); Oregon v. Mitchell, 400 U.S. 112, 247 n. 30, 91 S.Ct. 260, 326, 27 L.Ed.2d 272 (1970) (opinion of Brennan, White, and Marshall, JJ.).
15
Bail, of course, is basic to our system of law, Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951); Herzog v. United States, 75 S.Ct. 349, 351, 99 L.Ed. 1299, 1301 (1955) (opinion of Douglas, J.), and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment. Pilkinton v. Circuit Court, 324 F.2d 45, 46 (CA8 1963); see Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1965), and id., at 675, 82 S.Ct., at 1425 (Douglas, J., concurring). But we are not at all concerned here with any fundamental right to bail or with any Eighth Amendment-Fourteenth Amendment question of bail excessiveness. Our concern, instead, is with the 1% cost-retention provision. This smacks of administrative detail and of procedure and is hardly to be classified as a 'fundamental' right or as based upon any suspect criterion. The applicable measure, therefore, must be the traditional one: Is the distinction drawn by the statutes invidious and without rational basis? Dandridge v. Williams, 397 U.S. 471, 483—487, 90 S.Ct. 1153, 1160—1162, 25 L.Ed.2d 491 (1970). See Richardson v. Belcher, 404 U.S. 78, at 81, 92 S.Ct. 254, at 257, 30 L.Ed.2d 231 (1971).
IV
16
With this background, we turn to the appellants' primary argument. It is threefold: (1) that the 1% retention charge under § 110—7(f) is imposed on only one segment of the class gaining pretrial release; (2) that it is imposed on the poor and nonaffluent and not on the rich and affluent;9 and (3) that its imposition with respect to an accused found innocent amounts to a court cost assessed against the not-guilty person.
17
We are compelled to note preliminarily that the attack on the Illinois bail statutes, in a very distinct sense, is paradoxical. The benefits of the new system, as compared with the old, are conceded.10 And the appellants recognize that under the pre-1964 system Schilb's particular bail bond cost would have been 10% of his bail, or $75; that this premium price for his pretrial freedom, once paid, was irretrievable; and that, if he could not have raised the $75, he would have been consigned to jail until his trial. Thus, under the old system the cost of Schilb's pretrial freedom was $75, but under the new it was only $7.50. While acknowledging this obvious benefit of the statutory reform, Schilb and his co-appellants decry the classification the statutes make and present the usual argument that the legislation must be struck down because it does not reform enough.
18
A. It is true that no charge is made to the accused who is released on his personal recognizance. We are advised, however, that this was also true under the old (pre-1964) system and that 'Illinois has never charged people out on recognizance.'11 Thus, the burden on the State with respect to a personal recognizance is no more under the new system than what the State had assumed under the old. Also, with a recognizance, there is nothing the State holds for safekeeping, with resulting responsibility and additional paperwork. All this provides a rational basis for distinguishing between the personal recognizance and the deposit situations.
19
There is also, however, no retention charge to the accused who deposits the full amount of cash bail or securities or real estate. Yet the administrative cost attendant upon the 10% deposit and that upon the full deposit are, by the stipulation, 'substantially the same' with, indeed, any higher cost incurred with respect to the full deposit.
20
This perhaps is a more tenuous distinction, but we cannot conclude that it is constitutionally vulnerable. One who deposits securities or encumbers his real estate precludes the use of that property for other purposes. And one who deposits the full amount of his bail in cash is dispossessed of a productive asset throughout the period of the deposit; presumably, at least, its interim possession by the State accrues to the benefit of the State. Further, the State's protection against the expenses that inevitably are incurred when bail is jumped is greater when 100% cash or securities or real estate is deposited or obligated than when only 10% of the bail amount is advanced. The Joint Committee's and the State Legislature's decision in balancing these opposing considerations in the way that they did cannot be described as lacking in rationality to the point where equal protection considerations require that they be struck down.
21
Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966), lends no support to the appellants here. In that case a New Jersey statute imposed the cost of a transcript upon the indigent appellant who had been convicted of a crime and was sentenced to prison and who then was unsuccessful on his appeal. The statute, however, did not impose that cost upon the indigent appellant who likewise was convicted of a crime, and was unsuccessful on his appeal, but who had received a suspended sentence or who had been placed on probation or who had been fined rather than sentenced to prison. The distinction the New Jersey statute drew between appellants was based only upon the nature of their punishment, and the burden was imposed only upon those who were confined. The Court held, and rightly so, that a punishment distinction had no rational connection with a transcript cost and served to deny equal protection to the convicted appellant whose liberty was at issue on the appeal. Mr. Justice Stewart, in speaking for the Court said,
22
'The Equal Protection Clause requires more of a state law than nondiscriminatory application within the class it establishes. It also imposes a requirement of some rationality in the nature of the class singled out. To be sure, the constitutional demand is not a demand that a statute necessarily apply equally to all persons. 'The Constitution does not require things which are different in fact . . . to be treated in law as though they were the same.' Hence, legislation may impose special burdens upon defined classes in order to achieve permissible ends. But the Equal Protection Clause does require 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." 384 U.S., at 308—309, 86 S.Ct., at 1499 (citations omitted).
23
The New Jersey distinction thus was invidious and without rationality for it was not related to the fiscal objectives of the statute and rested on no administrative convenience.
24
B. The poor-man-affluent-man argument centers, of course, in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct., 585, 100 L.Ed. 891 (1956), and in the many later cases that 'reaffirm allegiance to the basic command that justice be applied equally to all persons.' Williams v. Illinois, 399 U.S. 235, 241, 90 S.Ct. 2018, 2022, 26 L.Ed.2d 586 (1970).
25
In no way do we withdraw today from the Griffin principle. That remains steadfast. But it is by no means certain, as the appellants suggest, that the 10% deposit provision under § 110—7 is a provision for the benefit of the poor and the less affluent and that the full-deposit provision of § 110—8 is one for the rich and the more affluent. It should be obvious that the poor man's real hope and avenue for relief is the personal recognizance provision of § 110—2. We do not presume to say, as the appellants in their brief intimate,12 that § 110—2 is not utilized by Illinois judges and made available for the poor and the less affluent.
26
Neither is it assured, as the appellants also suggest, that the affluent will take advantage of the full-deposit provision of § 110—8, with no retention charge, and that the less affluent are relegated to the 10% deposit provision of § 110—7 and the 1% retention charge. The record is silent, but the flow indeed may be the other way. The affluent, more aware of and more experienced in the marketplace, may see the advantage, in these days of high interest rates, in retaining the use of 90% of the bail amount. A 5% or greater return on this 90% in a short period of time more than offsets the 1% retention charge. In other words, it is by no means clear that the route of § 110—8 is more attractive to the affluent defendant than the § 110—7 route. The situation, therefore, wholly apart from the fact that appellant Schilb himself has not pleaded indigency, is not one where we may assume that the Illinois plan works to deny relief to the poor man merely because of his poverty.
27
C. The court-cost argument is that the person found innocent but already 'put to the expense, disgrace and anguish of a trial' is 'then assessed a cost for exercising his right to release pending trial.'13 Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966), is cited. Giaccio was a holding that an ancient Pennsylvania statute that permitted the jury to impose court costs upon an acquitted defendant, in order to offset the expenses of prosecution, violated the Due Process Clause because of vagueness and the absence of any standards preventing the arbitrary imposition of costs. The Court thus did not reach the merits, although Mr. Justice Stewart and Mr. Justice Fortas, each separately concurring, 382 U.S., at 405, 86 S.Ct., at 522, felt that the very imposition of costs upon an acquitted defendant was violative of due process.
28
Giaccio is not dispositive precedent for the appellants here. Certainly § 110—7 is not subject to attack for vagueness or for lack of standards. Neither is it a vehicle for the imposition of costs of prosecution as was the Pennsylvania statute. Instead, § 110—7 authorizes retention of the 1% as 'bail bond costs.' This is what that description implies, namely, an administrative cost imposed upon all those, guilty and innocent alike, who seek the benefit of § 110—7. This conclusion is supported by the presence of the long-established Illinois rule against the imposition of costs of prosecution upon an acquittal or discharged criminal defendant. Wells v. McCullock, 13 Ill. 606 (1852), and by the Illinois court's own determination, 46 Ill.2d, at 551—552, 264 N.E.2d, at 384, that the charge under § 110—7(f) is an administrative fee and not a cost of prosecution imposed under Ill.Rev.Stat., c. 38, § 180—3 (1969), only upon the convicted defendant.
V
29
Finally, the appellants would point out that Article 110 has its federal counterpart in § 3(a) of the Bail Reform Act of 1966, Pub.L. 89—465, 89th Cong., 2d Sess., 80 Stat. 214, and in particular in that portion now codified as 18 U.S.C. § 3146(a)(3). They note that S. 2840, 88th Cong., 2d Sess., contained a 1% retention provision 'to defray bail bond costs' but that a parallel bill, S. 1357, 89th Cong., 1st Sess., as it progressed through Congress, at no time had a provision of that kind. It was S. 1357 that was enacted as Pub.L. 89—465.
30
The committee reports, S.Rep.No.750, 89th Cong., 1st Sess., and H.R.Rep.No.1541, 89th Cong., 2d Sess., U.S.Code Cong. & Admin.News p. 2293 accompanying the 1966 Act, and the debates, 112 Cong.Rec. 12488—12504. 12841—12843, make no reference to this change from the earlier S. 2840. In the face of this silence, and without more, and being cognizant of the fact that the federal act, unlike the Illinois one, was not directed against the professional bail bondsman, we are not inclined to read constitutional implications into the absence of the retention provision in the Bail Reform Act of 1966.
31
Neither are we inclined to read constitutional implications into either the presence or the absence of a retention provision in corresponding statutes of States other than Illinois. See N.Y.Laws 1936, c. 518, N.Y.Code Crim.Proc. § 586.3 (Supp.1970—1971), having a 2% fee provision, now replaced by §§ 520.10—520.30 of New York's new Criminal Procedure Law, effective September 1, 1971, without the provision. See Wis.Stat. §§ 969.02(5) and 969.03(1)(c) (1969), where a 1% fee is specified but not upon dismissal or acquittal. See Alaska Stat. § 12.30.020(b)(4) (Supp.1971); D.C.Code Ann. § 23—1321(a)(3) (Supp.1971); and Iowa Code Ann. § 763.16, subd. 1, par. c. (Supp.1971), in each of which a 10% deposit is authorized with no feeretention provision.
VI
32
We refrain from nullifying this Illinnois statute that, with its companion sections, has brought reform and needed relief to the State's bail system. The judgment of the Supreme Court of Illinois is affirmed.
33
Affirmed.
34
Mr. Justice MARSHALL, concurring.
35
I join the opinion of the Court with a few additional words.
36
All agree that the central purpose of the statute was to restrict severely the activities of professional bail bondsmen who had customarily collected 10% of the amount of each bond as a fee and retained all of it regardless of what happened. All agree that the new scheme is, in general, an admirable attempt to reduce the cost of liberty for those awaiting trial.
37
The new scheme dealt only with the class of which appellant Schilb was a member—those persons charged with crimes who under the old system were relegated to professional bondsmen who along with other requirements charged a 10% fee for the bond regardless of the outcome of the case. This is the only class affected by the new scheme. Members of this class now pay 1% instead of 10%. In the evolving struggle for meaningful bail reform I cannot find the present Illinois move toward that objective to be unconstitutional.
38
Mr. Justice DOUGLAS, dissenting.
39
Appellant John Schilb brought this class action on behalf of all criminal defendants against whom the Clerk of the Circuit Court of St. Clair County, Illinois, had assessed fees of 10% of the amounts deposited as bail bonds. At issue was Ill.Ann.Stat., c. 388 § 100—7(a) (1970), which allowed a defendant to be released from custody upon 'deposit with the clerk of the court . . . a sum of money equal to 10% of the bail' which had been set by the court. Appellant challenged, under the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the provision that 'the clerk of the court . . . retain as bail bond costs 10% of the amount (so) deposited.' Id., at § 110—7(f). He argued that this was an unconstitutional discrimination because bail bond costs were not imposed upon those who were released on their personal recognizance, id., at § 110—2, or those who deposited cash or other security in the full amount of the bail bond. Id., at § 110 8.
40
The Circuit Court found the statute constitutional and dismissed the complaint. The Supreme Court of Illinois affirmed the judgment, 46 Ill.2d 538, 264 N.E.2d 377; we noted probable jurisdiction, 402 U.S. 928, 91 S.Ct. 1524, 28 L.Ed.2d 862.
41
The commercial bail bondsman has long been an anathema to the criminal defendant seeking to exercise his right to pretrial release. In theory, courts were to set such amounts and conditions of bonds as were necessary to secure the appearance of defendants at trial.1 Cf. Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951). Those who did not have the resources to post their own bond were at the mercy of the bondsman who could exact exorbitant fees and unconscionable conditions for acting as surety.2 See A. Beeley, The Bail System in Chicago 39 (1927); D. Freed & P. Wald, Bail in the United States: 1964, p. 34 (1964); R. Goldfarb, Ransom 92—126 (1965); Ares & Sturz, Bail and the Indigent Accused, 8 Crime & Delinquency 12 (1962); Boyle, Bail Under the Judicial Article, 17 De Paul L.Rev. 267, 272 (1968); Note, 106 U.Pa.L.Rev. 693 (1958); Note, 102 U.Pa.L.Rev. 1031 (1954). Criminal defendants often paid more in fees to bondmen for securing their release than they were later to pay in penalties for their crimes. Bowman, The Illinois Ten Per Cent Bail Deposit Provision, 1965 U.Ill.L.F. 35, 36.
42
Moreover, the commercial bond system failed to provide an incentive to the defendant to comply with the terms of his bond. Whether or not he appeared at trial, the defendant was unable to recover the fee he had paid to the bondsman. 'No refund is or was made by the professional surety to a defendant for his routine compliance with the conditions of his bond.' Kamin, Bail Administration in Illinois, 53 Ill.B.J. 674, 678 (1965).
43
It was in response to the abuses and inequities of the commercial bonding system that Illinois enacted the statutory scheme now under attack.3 The Supreme Court of Illinois indicated 'that the central purpose of the legislature . . . was to severely restrict the activities of professional bail bondsmen who customarily collected 10% of the amount of a bond as a fee which was retained whether or not the conditions of the bond were met by the accused.' 46 Ill.2d, at 544, 264 N.E.2d, at 380. To accomplish this end, it was only necessary to deal with the class represented by appellant. Those defendants who posted security in the full amount of the bail bond or who were free on their own recognizance stood in the same financial position under the new statutory scheme as under the old. No costs have ever been imposed upon them and any security deposited has always been returned upon the satisfaction of the terms of the bond.
44
Those defendants who under the old system had utilized the services of the professional bondsman are now required to post with the clerk of the court 10% of the face amount of their bonds in order to win their release. The significant difference, however, is that upon satisfaction of the terms of their bonds, § 110—7 now allows them to recover 90% of the amount deposited, while no such recovery was ever had from the commercial bondsman. Rather than paying a fee of 10% of the face amount of the bond, therefore the cost is now only 1%.
45
Appellant urges that the new system of pretrial release is constitutionally deficient despite the improvement it has wrought. Appellant first argues that § 110—7 imposes costs upon only one class of criminal defendants without any rational basis for the classification. Next he asserts that the poor and nonaffluent, who have no choice but to remain in jail or deposit 10% of bail, are unconstitutionally penalized due to lack of wealth. Finally, he says that § 110—7 violates the Due Process Clause insofar as it allows costs to be taxes against an accused who is ultimately found innocent.
46
In response, appellees assert that the classification implements the laudable purpose of eliminating the commercial bail bondsman. Under this view, the 1% fee is no more than the interest charged for allowing an accused his freedom upon payment of only 10% of the amount set as bail. Appellees urge that a system which requires liberal use of an accused's release on his own recognizance, Ill.Ann.Stat., c. 38, § 110—2 (1970), and which reduces to a fraction of the previous cost the financial burden on those required to post cash bonds, actually benefits the indigent.4
47
I do not reach the question of equal protection but rest my decision on the issue stirred, but not decided, in Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447. The plaintiff in this action, John Schilb, was charged (1) with leaving the scene of an automobile accident and (2) obstructing traffic. He posted a 10% bond on each charge—one for $50 and one for $25; he was acquitted on the first one had was charged $7.50 on the two bonds.
48
The 1% charge is a part of the cost of a criminal prosecution, imposed even on an innocent person who is accused of a crime and who is put to the expense and anguish of a trial. Giaccio involved a state statute which directed juries 'in all cases of acquittals' to determine whether the government or the defendant should pay the costs. 382 U.S., at 400—401, 86 S.Ct., at 519. We held the Act unconstitutional on grounds of vagueness. Mr. Justice Stewart, concurring, said: 'In the present case it is enough for me that Pennsylvania allows a jury to punish a defendant after finding him not guilty. That, I think, violates the most rudimentary concept of due process of law.' 382 U.S., at 405, 86 S.Ct., at 522.
49
Mr. Justice Fortas also concurred, saying: 'In my opinion the Due Process Clause of the Fourteenth Amendment does not permit a State to impose a penalty or costs upon a defendant whom the jury has found not guilty of any offense with which he has been charged.' Ibid. That is my view on the merits in the instant case.
50
Some costs are the unavoidable consequences of a system of government which is required to proceed against its citizens in a public trial in an adversary proceeding. Yet I see no basis for saying that an accused must bear the costs incurred by the Government in its unsuccessful prosecution of him. Imposition of costs upon individuals who have been acquitted has long been eschewed by our courts. E.g., State v. Brooks, 33 Kan. 708, 715, 7 P. 591, 596 (1885); Biester v. State, 65 Neb. 276, 91 N.W. 416 (1902); Childers v. Commonwealth, 171 Va. 456, 198 S.E. 487 (1938). Some jurisdictions have provided that the imposition of costs upon acquitted individuals is reprehensible. See, e.g., Costs in Criminal Cases Act, 15 & 16 Geo. 6 & 1 Eliz. 2, c. 48 (1952); Report of the Attorney General's Committee on Poverty and the Administration of Criminal Justice 31—32 (1963); Goldberg, Equality and Governmental Action, 39 N.Y.U.L.Rev. 205, 223—224 (1964); Note, 1962 Wash.U.L.Q. 76. Where there is such uniform condemnation of a practice as onerous as the imposition of costs upon acquitted defendants, cf. Leland v. Oregon, 343 U.S. 790, 798, 72 S.Ct. 1002, 1007, 96 L.Ed. 1302 (1952), I would conclude, with Justices Stewart and Fortas in Giaccio, that it violates due process.
51
It is, however, said that the 1% charge is not 'a vehicle for the imposition of costs of prosecution' and that it is merely 'an administrative cost imposed upon all those, guilty and innocent alike, who seek the benefit of § 110—7.' Supra, at 370, 370—371. The costs of administering the bail system occur, by definition, only during the course of criminal prosecutions. They are as much an element of the costs of conducting criminal cases as the prosecutor's salary, the fee for docketing an appeal, or the per diem paid to jurors. Nor does the rubric 'administrative' require a contrary result. If this were the talisman through which a State could impose its costs upon acquitted defendants, I could see no stopping point and we might be left with a system in which an acquittal might be nearly as ruinous to the defendant as a conviction.
52
On the other aspects of the case facts are absent which we would need to know if we are to make an informed judgment on the requirements of equal protection. The discrimination condemned is an 'invidious' one, it being recognized over and again that 'legislation may impose special burdens upon defined classes in order to achieve permissible ends.' Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 1499, 16 L.Ed.2d 577. The elimination of the professional bondsman seems to me to be a permissible end. The provision for the 10% bond is, in that view, an ameliorating one. The problem on which this record leaves us in the dark is theactual working of that provision and the provision for release on personal recognizance. Not everyone, I assume, is entitled to pretrial release. Equal protection would seem to require that each, whether rich or poor, black or white, is entitled to release on personal recognizance if he meets the requirements of stability, reputation, community ties, and so on. In Illinois the record is silent5 as to how the system of release on personal recognizance, as contrasted to release on the 10% bond, is in fact administered. The manner of administration may, of course, raise serious equal protection questions. For a statute fair on its face may be administered in an invidious way. As stated in Yick Wo v. Hopkins, 118 U.S. 356, 373—374, 6 S.Ct., 1064, 1073, 30 L.Ed. 220:
53
'Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.'
54
But, as I have said, the record contains no factual basis showing the manner of administration of the Illinois system.
55
I would reverse this judgment insofar as it imposed bail bond costs under the criminal charges of which members of the class represented by appellant were acquitted and remand for further proceedings respecting the bail bond costs on the charges on which they were convicted.
56
Mr. Justice STEWART, with whom Mr. Justice BRENNAN concurs, dissenting.
57
In 1963, Illinois enacted new provisions governing bail in criminal cases. Ill.Rev.Stat., c. 38, Art. 110 (1963). These enactments provide that a person charged with a criminal offense may obtain pretrial release in one of four ways.
58
(1) The accused may be released on his own recognizance. Persons in this class do not pay any costs to cover the administration of their release. § 110—2.
59
(2) The accused may deposit 10% of the full amount of the bail that has been set. § 110—7. When bail is made in this manner, the clerk of the court ultimately retains as bail costs 1% of the full amount of bail (10% of the amount actually deposited). § 110 7(f).
60
(3) The accused may offer cash, stocks or bonds in an amount equivalent to the required bail. No administrative costs are imposed. § 110—8(a)(1).
61
(4) The accused may secure double the amount of required bail in unencumbered real estate. Again, no administrative costs are imposed. § 110—8(a)(2) and (f).
62
A person must satisfy a judge that he meets certain criteria to be eligible for release on his own recognizance. Otherwise the State allows individuals to choose freely among the three other methods of obtaining pretrial release (assuming the individual has the wherewithal to make a choice).
63
The 1963 bail provisions of the Illinois Criminal Code represented substantial reforms in the State's procedures for granting pretrial release. The central purpose of the legislation was to restrict severely the activities of professional bail bondsmen who had customarily collected 10% of the amount of a bond as a fee, which they retained whether or not the conditions of bond were met by the accused.1 Before 1963, accused persons who could not obtain release on their own recognizance had no choice but to offer the full amount of the bail that was set. The primary innovation of bail reform was to create a class of 'ten-percenters,' persons who could gain release by depositing only 10% of the required bail.
64
Appellant, John Schilb was charged with leaving the scene of an accident and obstructing traffic. Bail was set at $500 for the first offense and $250 for the second. As a 'ten-percenter,' the appellant posted $50 and $25 bonds. He was found guilty of the second charge and not guilty of the first. After these judgments were entered, the State retained $5 and $2.50 respectively, as administrative costs on his bonds. Subsequently, the appellant brought this class action against the clerk of the Circuit Court of St. Clair County, Illinois, alleging that the cost-retention provision of the state bail law, § 110—7(f), constitutes a violation of the Equal Protection Clause of the Fourteenth Amendment because administrative costs are imposed only on that class of persons who obtain pretrial release by depositing 10% of the required bail. The Illinois Supreme Court ultimately upheld the validity of 110—7(f), with two justices dissenting. 46 Ill.2d 538, 264 N.E.2d 377 (1970).
65
It is common ground that the Illinois bail reform scheme reflects an admirable attempt to reduce the cost of liberty for those awaiting trial. Chapter 38, § 110—7(f), does arbitrarily discriminate, however, against the appellant and those similarly situated.2 As this Court said in Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497:
66
'The Equal Protection Clause requires more of a state law than nondiscriminatory application within the class it establishes. It also imposes a requirement of some rationality in the nature of the class singled out. . . . (L)egislation may impose special burdens upon defined classes in order to achieve permissible ends. But the Equal Protection Clause does require 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." Id., at 308—309, 86 S.Ct., at 1499—1500 (citations omitted).
67
The Court assumes that the rationality of § 110—7(f)'s classification should be analyzed in relation to the purpose of ending the evils created by the bail bond system. However, while ending those evils is the aim of the whole bail reform, it § not the aim of § 110—7(f) itself. Rather, the appellees have acknowledged that the purpose of § 110—7(f) is to cover administrative costs; they have also acknowledged in oral argument that the financial burden on the State is probably as great or greater for those who use the other methods of obtaining pretrial release.3 Can the appellees constitutionally justify the selective imposition of administrative costs?4 I think not.
68
The Illinois Supreme Court held that there can be no unconstitutional discrimination in the state system of bail release, since each person accused has a choice of method for obtaining pretrial release. 46 Ill.2d, at 548, 264 N.E.2d, at 382. Those who deposit 10%, said the court, 'are not automatically placed in this class . . . by the law. They join only by the exercise of their own volition.' Whether many persons accused of crimes can really choose between paying 10% or paying the full amount (or securing double the amount in real estate) is highly debatable.5 But however that may be, it is clear that not every person accused of a crime is free to choose to be released on his own recognizance. Yet those who are fortunate enough to be so released need pay no costs whatever.
69
The appellees argue that those who pay only 10% are being given a benefit that justifies imposing a burden. The appellees say that such persons are not required to put up the full amount of the bail set and that the 1% such persons do ultimately pay is a boon by comparison to the 10% of required bail that they would have automatically forfeited to the bondsman under the old procedures governing bail. This justification, however, also fails to distinguish between the 'tenpercenters' and those who are released on their own recognizance. Obviously, those released on their own recognizance receive an even greater benefit than those who deposit 10%, since they give no money to the State at any time if they meet the conditions of release.6
70
The appellees attempt to distinguish between those released on their own recognizance and the 'ten-percenters' by noting that the recognizance practice is 'historic,' whereas the cost-retention provision was recently enacted to end the evils spawned by bail bondsmen.7 This distinction, however, does not confront the reality that both classes of persons receive benefits and only one class must pay administrative costs. A second attempt to distinguish between those released on their own recognizance and those who deposit 10% turns on the idea that the members of the former class are more 'worthy' of the benefit they receive and therefore may rationally be required to pay less. But while the criteria used by judges to determine release on one's own recognizance—e.g., length of residence in the jurisdiction, marital status, employment record, or past criminal record—are obviously relevant to the recognizance decision, they are not rationally related to the decision to impose purely administrative costs, especially when such costs are at least as great for those released on their own recognizance as for those required to post bond.
71
Given the infirmities in the asserted justifications for § 110—7(f), I think the imposition of administrative costs on only one class of those persons seeking pretrial release violates the Equal Protection Clause of the Fourteenth Amendment. Accordingly, I would reverse the judgment before us.
1
Schilb also attacked the statute as violative of Art. II, §§ 2 and 19, of the Illinois Constitution of 1870 (now Art. I, §§ 2 and 12, of the State's 1970 Constitution), S.H.A.
2
See D. Freed & P. Wald, Bail in the United States: 1964, pp. 34—35 (1964); R. Goldfarb, Ransom 92—126 (1965); Bowman, The Illinois Ten Per Cent Bail Deposit Provision, 1965 U.Ill.L.F. 35.
3
'§ 110—2. Release on Own Recognizance
'When from all the circumstances the court is of the opinion that the accused will appear as required either before or after conviction the accused may be released on his own recognizance. . ..
'This Section shall be liberally construed to effectuate the purpose of relying upon criminal sanctions instead of financial loss to assure the appearance of the accused.'
4
'§ 110—7. Deposit of Bail Security
'(a) The person for whom bail has been set shall execute the bail bond and deposit with the clerk of the court before which the proceeding is pending a sum of money equal to 10% of the bail, but in no event shall such deposit be less than $25.
'(f) When the conditions of the bail bond have been performed and the accused has been discharged from all obligations in the cause the clerk of the court shall return to the accused 90% of the sum which had been deposited and shall retain as bail bond costs 10% of the amount deposited.'
Section 110—7(f) was amended in 1969 by Pub.Act 76—1195, approved Sept. 4, 1969, by Pub.Act 76—1394, approved Sept. 19, 1969, and by Pub.Act 76—1801, approved Oct. 9, 1969. It was further amended in 1970 by Pub.Act 76—2078, approved June 22, 1970, and now reads:
'(f) When the conditions of the bail bond have been performed and the accused has been discharged from all obligations in the cause the clerk of the court shall return to the accused, unless the court orders otherwise, 90% of the sum which had been deposited and shall retain as bail bond costs 10% of the amount deposited. However, in no event shall the amount retained by the clerk as bail bond costs be less than $5.
'At the request of the defendant the court may order such 90% of defendant's bail deposit, or whatever amount repayable to defendant from such deposit, to be paid to defendant's attorney of record.'
5
'§ 110—8. Cash, Stocks, Bonds and Real Estate as Security for Bail
'(a) In lieu of the bail deposit provided for in Section 110 7 of this Code any person for whom bail has been set may execute the bail bond with or without sureties which bond may be secured:
'(1) By a deposit, with the clerk of the court, of an amount equal to the required bail, of cash, or stocks and bonds in which trustees are authorized to invest trust funds under the laws of this State; or
'(2) By real estate situated in this State with unencumbered quity not exempt owned by the accused or sureties worth double the amount of bail set in the bond.
'(f) When the conditions of the bail bond have been performed and the accused has been discharged from his obligations in the cause, the clerk of the court shall return to him or his sureties the deposit of any cash, stocks or bonds. If the bail bond has been secured by real estate the clerk of the court shall forthwith notify in writing the registrar of titles or reorder of deeds and the lien of the bail bond on the real estate shall be discharged.'
6
'§ 110—5. Determining the Amount of Bail
'(a) The amount of bail shall be:
'(1) Sufficient to assure compliance with the conditions set forth in the bail bond;
'(2) Not oppressive;
'(3) Commensurate with the nature of the offense charged;
'(4) Considerate of the past criminal acts and conduct of the defendant;
'(5) Considerate of the financial ability of the accused.'
7
'§ 110—6. Reduction or Increase of Bail
'(a) Upon application by the State or the defendant the court before which the proceeding is pending may increase or reduce the amount of bail or may alter the conditions of the bail bond.'
8
'. . . The provisions of sections 110—7 and 110—8 were designed to severely restrict the activities of professional bail bondsmen and to reduce the cost of liberty to arrested persons awaiting trial. . . .' P. 298.
'The committee realized full well the many arguments advanced in opposition to changing the present system. We were not impressed with any of them. If a person can pay a professional bondsman ten per cent of the bail amount as a fee, he can deposit it with the clerk. At the present time he receives nothing back from the bondsman if he appears for trial; his ten per cent fee is gone. Under the provisions of (§ 10—7(f)) he gets back ninety per cent of the amount deposited if he appears. The ten per cent of the deposit retained by the county will offset in monetary amount the costs of handling bail bonds (which must be done now anyway), and any loss resulting from the occasional bail jumper where the prefessional bondsman might now forfeit the amount of the bail. . . .' P. 300.
'This section (§ 110—7) is new and provides the procedure for depositing ten per cent of the amount of bail as security for appearance. However, the bail bond will provide for forfeiture of the full amount of the bail upon nonappearance. In addition, the accused would be subject to the penal provisions for bail jumping. However, subsection (f) provides for a return of ninety per cent of the bail deposit (which amounts to (retention of) one per cent of the amount of bail set by the court in the first instance) to the accused upon compliance with the conditions of the bail bond. The ten per cent of the deposit retained by the clerk is to cover costs of handling bail bonds and deposits.' P. 316.
'There is nothing in Article 110 which is intended to work any additional hardship on anyone in the giving of bail. It is designed to permit the continuation of present practices in regard to sheriffs, police officers, etc., taking cash bail or drivers' licenses, and to simplify the procedures in all other cases so as to lessen the ultimate cost of bail to offenders (by thousands of dollars each year) who appear for trial anyway, and to assure to the counties in every case a reasonably amount (one per cent of the total amount of bail set) to cover the cost of time and paper-work involved in handling bail cases.' P. 324.
9
Schilb has neither alleged nor shown that he is indigent or that he applied for and was denied release on his personal recognizance. No question of standing, however, was raised in the Illinois courts or here. The Illinois Supreme Court found it unnecessary to pass upon the propriety of the class action. 46 Ill.2d, at 552, 264 N.E.2d at 384.
10
'QUESTION: Mr. O'Toole (counsel for appellants), (if) you prevail here, do you anticipate the old bond(s)man system will be revised?
'MR. O'TOOLE: Oh no, your Honor. . . . that is the furthest thing—we want to make that eminently clear. We believe this to be very good legislation. We feel this aspect of it is wrong. Definitely not, there would not be any reincarnation of the bondsman.' Tr. of Oral Arg. 11.
11
Tr. of Oral Arg. 27.
12
'Thus, those least able to afford it, the poor and non-affluent, who have no choice but to remain in jail or deposit 10% of bail, are unconstitutionally, 'penalized in a quest for justice due to a lack of wealth." Brief for Appellants 16.
13
Brief for Appellants 16.
1
A study by the Champaign County Bar Association indicated that bail was often set at a higher amount than necessary to satisfy these objectives:
'Among the bail practices noted in this report were the following : (1) Bonds of $2,000, $3,000, or even $5,000 are fixed in cases where the accused ultimately is fined $50 or less. (2) Permitting an accused to sign his own bond without sureties is rarely allowed. (3) Personal bonds of local citizens who own property or have been local residents for many years are frequently refused. (4) Magistrates frequently fix a bond of $1,000 or so for a minor crime, and wnen the case is transferred a few days later to the County or Circuit Court by the filing of an information the accused must provide a second bond for the same minor crime.' Bowman, The Illinois Ten Per Cent Bail Deposit Provision, 1965 U.Ill.L.F. 35.
2
In 1962 in Cook County, for example, professional bail bondsmen wrote bonds totaling $18,513,965 entitling them to receive $1,851,396 in fees. These bondsmen, however, paid forfeiture judgments of only $18o,938. Id., at 36.
3
The primary argument advanced in favor of retaining the commercial bond system was that the professional bondsman would, at his own expense, track down and recapture a defendant who jumped bail. This argument was found by the Illinois Legislature to have only tenuous factual support:
'As to the value of bondsmen being responsible for the appearance of accused and tracking him down and returning him at the bondsman's expense—the facts do not support this as an important factor. While such is accomplished occasionally without expense to the county, the great majority of bail jumpers are apprehended by the police of this and other states. Since bail jumping is now a distinct and separate crime, and with the nation-wide exchange of information between law enforcement agencies and the F.B.I., the average bail jumper has little chance of escape. The facts show that most of them are recaptured in this state, and even in the same county where they are to appear.' Committee Comments—1963, Ill.Ann.Star., c. 38, p. 300 (Smith-Hurd ed. 1970).
4
Appellees note that a major portion of those defendants who avail themselves of the 10% bail provision are not indigent. A wealthy accused who could afford to pay either 10% or 100% of the amount set as bail might well elect to pay only 10% if the 1% cost thereby imposed would be less than the interest which could be earned if the 90% were retained and invested.
5
The Manhattan Bail Project which has been in operation since 1961 deals only with felony defendants:
'In evaluating whether the defendant is a good parole risk, four key factors are considered: (1) residential stability; (2) employment history; (3) family contacts in New York City; and (4) prior criminal record. Each factor is weighted in points. If the defendant scores sufficient points, and can provide an address at which he can be reached, verification will be attempted. Investigation is confined to references cited in the defendant's signed statement of consent.' D. Freed & P. Wald, Bail in the United States: 1964, p. 59 (1964).
From 1961 to 1964 out of 13,000 defendants, 10,000 were interviewed, 4,000 were recommended for release on personal recognizance, and 2,195 were paroled. Of these, only 15 failed to show up in court, a default rate less than seven-tenths of one percent.
If Illinois' experience is comparable, it is understandable why those who pass muster on personal recognizance may be treated more leniently than those who do not qualify for that kind of release. In that connection 60% of those released on personal recognizance in Manhattan were either acquitted or had their cases dismissed, compared with 23% of the others. Id., at 63.
If that were the experience of Illinois, the State certainly could not be charged with making an invidious discrimination against the other group, even though the cost of administering the personal recognizance program was as high as the cost of administering the bail program. Cf. Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 91 S.Ct. 16, 27 L.Ed.2d 4 (1970); McDonald v. Board of Election Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 33 S.Ct. 441, 57 L.Ed. 730 (1913). Cost of administration is only one item for comparison. The lessened burden on the State accruing from the few convictions and the resultant jail term sentences is a factor that a State may take into consideration. Certainly if the Illinois experience parallels the Manhattan experience, we would be hard put to say that Illinois shows an invidious discrimination against those who can only make bail as compared with those who are qualified to be released on personal recognizance.
1
Other common abuses perpetuated by the bondsman system were overcharges of bail fees, failure to return security pledges to the owner, and retention of money reimbursements for forfeited bond judgments which were later vacated. D. Freed & P. Wald, Bail in the United States: 1964, p. 34 (1964). According to the appellees' brief, the Illinois reforms have apparently put an end to the activities of professional bondsmen. As the Illinois Supreme Court noted: '(T) he ultimate objective of this reform was to regain from professional bondsmen the control of bail releases and restore such control to the courts where it rightfully belongs.' 46 Ill.2d 538, 544, 264 N.E.2d 377, 380—381 (1970).
2
I would decide this case solely on the ground that the provision in question arbitrarily discriminates between like classes of persons. I would not, therefore, reach the two other arguments urged by the appellants: that the provision arbitrarily favors the rich over the poor and that the provision violates due process by imposing costs on those who are ultimately found to be innocent.
3
As the Court notes, the parties have stipulated that the 'actual cost of administering the provisions of said Sections 110 7 and 110—8 are substantially the same but there may probably be a slightly higher cost in the administration of Section 110—8.' With regard to those released on their own recognizance (under § 110—2) and the 'ten-percenters,' the appellees acknowledged at oral argument that the administration or release for both classes imposes equal costs on the State:
'Mr. Rooney: We think (those released on their own recognizance) are a little differently situated than those—
'Question: Not expense wise to the system?
'Mr. Rooney: Not expense wise to the system . . ..' Tr. of Oral Arg. 12—20.
4
The Bail Reform Act of 1966, 18 U.S.C. §§ 3141—3152, a federal law in some ways similar to Illinois' provisions governing bail, provides for 'ten-percenters' at the discretion of the judge. However, it imposes no administrative costs on persons seeking pretrial release through the deposit of something less than the full bail required. 18 U.S.C. § 3146(a)(3). Earlier versions of the legislation had imposed an administrative cost of 1% of the total bail required on those who elected to deposit 10%, S. 2840, 88th Cong., 2d Sess. (1964).
Several States allow persons to obtain pretrial release by depositing a sum less than the full amount set for bail. Two of these, Iowa, Iowa Code Ann. § 763.16, subd. 1, par. c (Supp.1971), and Alaska, Alaska Stat. § 12.30.020(b)(4) (Supp.1971), impose no administrative costs. Wisconsin imposes a cost only on those found guilty, Wis.Stat. § 969.03(1)(c) (1969). New York until recently imposed a flat percentage fee on all who obtain pretrial release, regardless of method chosen. N.Y.Laws 1936, c. 518, and N.Y.Code Crim.Proc. § 586.3 (Supp.1970—1971). There is now no fee. N.Y.Criminal Procedure Law §§ 520.10—520.30.
5
The dissent in the Illinois Supreme Court took 'judicial notice of the fact that many defendant cannot afford to pay the full amount of the bail.' 46 Ill.2d, at 553, 264 N.E.2d, at 385. From this basic fact it can be argued that, since many of those accused have no choice but to deposit 10%, the imposition of administrative costs upon that class alone amounts to a violation of the Equal Protection and the Due Process Clauses of the Fourteenth Amendment. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.
6
The appellees contend that those who offer the full amount of bail in cash actually pay an administrative cost because they sacrifice the interest that would accrue on the money. However, this argument totally fails to meet the objection raised with regard to those released on their own recognizance. Moreover, those who offer stocks or bonds or who secure property to obtain their release may not, apparently, lose any income that might accrue on those items during the period before trial. The statutory scheme governing bail does not by its terms provide for the State to receive interest, dividends, or rent on stocks or bonds or land. The record before us is silent on the question of Illinois practice with regard to the benefits that flow from those sources of income before trial. Stocks and bonds are deposited with the clerk of the court, but there is no indication that the accused does not continue to receive earnings. Similarly, the accused gives the State first lien on the real estate offered as bond, but there is no indication that the accused is deprived of the use of the land. Ill.Rev.Stat., c. 38, § 110—8 (1963).
7
The Court refers to a statement made in oral argument that the State of Illinois has never imposed costs on those who obtain release on their own recognizance. But under the rules governing pretrial release that existed before the 1963 reforms, the State did not impose administrative costs on anyone obtaining pretrial release. 46 Ill.2d 538, 264 N.E.2d 377. The question here is whether the current, selective imposition of administrative costs by the State is constitutional.
| 12
|
404 U.S. 270
92 S.Ct. 509
30 L.Ed.2d 438
Philip J. PICARD, Petitioner,v.James J. CONNOR.
No. 70—96.
Argued Nov. 17, 1971.
Decided Dec. 20, 1971.
Syllabus
A grand jury returned a murder indictment against a named individual 'and John Doe, the true name and a more particular description of the said John Doe being to the said Jurors unknown.' After respondent's arrest the indictment was amended pursuant to state law to substitute respondent's name for 'John Doe.' The highest state court affirmed respondent's subsequent conviction, rejecting his challenge to the legality of the indictment made on the ground that the amending procedure did not comply with the statute. Respondent subsequently filed a petition for a writ of habeas corpus in the District Court, which dismissed the petition. The Court of Appeals reversed, holding that the procedure by which respondent was brought to trial was violative of equal protection. The court rejected petitioner's contention that respondent, who had not previously raised the equal protection issue, had not exhausted available state judicial remedies as required by 28 U.S.C. § 2254, holding that respondent had presented the state court with 'an opportunity to apply controlling legal principles to the facts bearing upon (his) constitutional claim.' Held: The substance of a federal habeas corpus claim must in the first instance be fairly presented to the state courts, and since on the record and argument before it the State's highest court had no fair opportunity to consider and act upon the equal protection claim, the Court of Appeals erred in holding that respondent had exhausted his state remedies. Pp. 275 278.
434 F.2d 673, reversed and remanded.
John J. Irwin, Jr., Asst. Atty. Gen., Boston, Mass., for petitioner.
James J. Twohig, Boston, Mass., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The Court of Appeals for the First Circuit, reversing the District Court's dismissal of respondent's petition for a writ of federal habeas corpus,1 held that 'the procedure by which (respondent) was brought to trial deprived him of the Fourteenth Amendment's guarantee of equal protection of the laws.' 434 F.2d 673, 674 (1970). The Court of Appeals acknowledged that respondent had not attacked his conviction on the equal protection ground, either in the state courts or in his federal habeas petition:
2
'(Respondent) did not present the constitutional question to the Massachusetts court in the particular focus in which this opinion is directed. We suggested it when the case reached us, and invited the Commonwealth to file a supplemental brief. Not unnaturally its first contention was to assert that (respondent) had not exhausted his state remedy * * *.' Ibid.
3
The Court of Appeals rejected that contention and held that respondent had exhausted available state judicial remedies, as required by 28 U.S.C. § 2254,2 because he had 'presented the (state) court with 'an opportunity to apply controlling legal principles to the facts bearing upon (his) constitutional claim." Ibid. We granted certiorari to consider that ruling in light of the command of § 2254. 402 U.S. 942, 91 S.Ct. 1620, 29 L.Ed.2d 110 (1971). We hold that the State's objection should have been sustained, and we therefore reverse for further proceedings, see Slayton v. Smith, 404 U.S. 53, 92 S.Ct. 174, 30 L.Ed.2d 209 (1971), without reaching the merits of the constitutional question decided by the Court of Appeals.3
4
A Massachusetts grand jury returned an indictment for murder against Donald Landry 'and John Doe, the true name and a more particular description of the said John Doe being to the said Jurors unknown.' After respondent's arrest, the indictment was amended in a proceeding pursuant to a fictitious-name statute, Mass.Gen.Laws Ann., c. 277, § 19,4 to substitute respondent's name for 'John Doe.' The Massachusetts Supreme Judicial Court affirmed respondent's subsequent conviction, sub nom. Commonwealth v. Doherty, 353 Mass. 197, 229 N.E.2d 267 (1967). Among other grounds of appeal, respondent challenged the legality of the indictment. The gist of respondent's argument, which he also asserted during various trial proceedings, was that the amending procedure did not comply with the statute as construed by the Massachusetts courts, with the result that he had not been lawfully indicted for the crime. See Commonwealth v. Gedzium, 259 Mass. 453, 156 N.E. 890 (1927).5 The only suggestions of a claimed denial of a federal right were statements in respondent's brief questioning the continuing validity of the holding in Gedzium that the provision of the Fifth Amendment that '(n)o person shal be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury' was inapplicable to the States. Id., at 457, 156 N.E., at 891; see Hurtado v. California, 110 U.S. 516, 4 S.Ct. 292, 28 L.Ed. 232 (1884).6 We have examined the pretrial, trial, and appellate papers and do not discover any indication of an attack upon the prosecution under the indictment as violative of the Equal Protection Clause of the Fourteenth Amendment.7
5
It has been settled since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus. See, e.g., Nelson v. George, 399 U.S. 224, 229, 90 S.Ct. 1963, 1966, 26 L.Ed.2d 578 (1970); Irvin v. Dowd, 359 U.S. 394, 404—405, 79 S.Ct. 825, 831—832, 3 L.Ed.2d 900 (1959); Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 (1944). The exhaustion-of-state-remedies doctrine, now codified in the federal habeas statute, 28 U.S.C. §§ 2254(b) and (c),8 reflects a policy of federal-state comity, Fay v. Noia, 372 U.S. 391, 419—420, 83 S.Ct. 822, 838—839, 9 L.Ed.2d 837 (1963); Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455 (1939), 'an accommodation of our federal system designed to give the State an initial 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights.' Wilwording v. Swenson, 404 U.S. 249, at 250, 92 S.Ct. 407, at 408, 30 L.Ed.2d 418. We have consistently adhered to this federal policy, for 'it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.' Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950) (overruled in other respects, Fay v. Noia, supra, 372 U.S., at 435 436, 83 S.Ct., at 847—848). It follows, of course, that once the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied. See e.g., Wilwording v. Swenson, supra, 404 U.S., at 250, 92 S.Ct., at 407; Roberts v. LaVallee, 389 U.S. 40, 42—43, 88 S.Ct. 194, 196—197, 19 L.Ed.2d 41 (1967); Brown v. Allen, 344 U.S. 443, 447—450, 73 S.Ct. 397, 402 404, 97 L.Ed. 469 (1953).
6
We emphasize that the federal claim must be fairly presented to the state courts. If the exhaustion doctrine is to prevent 'unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution,' Ex parte Royall, supra, 117 U.S., at 251, 6 S.Ct., at 740, it is not sufficient merely that the federal habeas applicant has been through the state courts. The rule would serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal courts. Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies. Accordingly, we have required a state prisoner to present the state courts with the same claim he urges upon the federal courts. See Darr v. Burford, supra, 339 U.S., at 203, 70 S.Ct., at 589; Davis v. Burke, 179 U.S. 399, 401 403, 21 S.Ct. 210, 211—212, 45 L.Ed. 249 (1900).
7
Respondent challenged the validity of his indictment at every stage of the proceedings in the Massachusetts courts. As the Court of Appeals pointed out, 434 F.2d, at 674, this is not a case in which factual allegations were made to the federal courts that were not before the state courts, see, e.g., United States ex rel. Boodie v. Herold, 349 F.2d 372 (CA2 1965); Schiers v. California, 333 F.2d 173 (CA9 1964), nor a case in which an intervening change in federal law cast the legal issue in a fundamentally different light, see, e.g., Blair v. California, 340 F.2d 741 (CA9 1965); Pennsylvania ex rel. Raymond v. Rundle, 339 F.2d 598 (CA3 1964). We therefore put aside consideration of those types of cases. The question here is simply whether, on the record and argument before it, the Massachusetts Supreme Judicial Court had a fair opportunity to consider the equal protection claim and to correct that asserted constitutional defect in respondent's conviction. We think not.
8
Until he reached this Court,9 respondent never contended that the method by which he was brought to trial denied him equal protection of the laws. Rather, from the outset respondent consistently argued that he had been improperly indicted under Massachusetts law and, to the extent he raised a federal constitutional claim at all, that the indictment procedure employed in his case could not be approved without reference to whether the Fifth Amendment's requirement of a grand jury indictment applied to the States. He adverted to the Fourteenth Amendment solely as it bore upon that submission.10 The equal protection issue entered this case only because the Court of Appeals injected it.
9
We are thus unable to agree with that court that respondent provided the Massachusetts 'court with 'an opportunity to apply controlling legal principles to the facts bearing upon (his) constitutional claim." 434 F.2d, at 674. To be sure, respondent presented all the facts. Yet the constitutional claim the Court of Appeals found inherent in those facts was never brought to the attention of the state courts. The Supreme Judicial Court dealt with the arguments respondent offered; we cannot fault that court for failing also to consider sua sponte whether the indictment procedure denied respondent equal protection of the laws. Obviously there are instances in which 'the ultimate question for disposition,' United States ex rel. Kemp v. Pate, 359 F.2d 749, 751 (CA7 1966), will be the same despite variations in the legal theory or factual allegations urged in its support. A ready example is a challenge to a confession predicated upon psychological as well as physical coercion. See Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963). Hence, we do not imply that respondent could have raised the equal protection claim only by citing 'book and verse on the federal constitution.' Daugharty v. Gladden, 257 F.2d 750, 758 (CA9 1958); see Kirby v. Warden, 296 F.2d 151 (CA4 1961). We simply hold that the substance of a federal habeas corpus claim must first be presented to the state courts. The claim that an indictment is invalid is not the substantial equivalent of a claim that it results in an unconstitutional discrimination. See Rose v. Dickson, 327 F.2d 27, 29 (CA9 1964); Morris v. Mayo, 277 F.2d 103 (CA5 1960). The judgment of the Court of Appeals is therefore reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
10
It is so ordered.
11
Judgment of Court of Appeals reversed and case remanded.
12
Mr. Justice DOUGLAS, dissenting.
13
With all respect, I think that in this case we carry the rule of exhaustion of state remedies too far. Connor's name was added to the indictment after it was returned by the state grand jury, he being substituted for 'John Doe.' He raised in his brief before the Supreme Judicial Court of Massachusetts his claim that such a substitution denied him that quantum of due process required by the Fourteenth Amendment 'in that he was put to trial without having been indicted by a Grand Jury.'1 He did not refer to the Equal Protection Clause which is also a part of the Fourteenth Amendment. But that is a nicety irrelevant to the maintenance of healthy state-federal relations on which the Court makes the present decision turn. The concept of due process is broad and expansive, and 'the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive.' Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884. We have thus held that the denial of equal protection, viz., invidious discrimination, may be 'so unjustifiable as to be violative of due process.' Ibid.2 As Mr. Justice Brennan said in Boddie v. Connecticut, 401 U.S. 371, 388, 91 S.Ct. 780, 791, 28 L.Ed.2d 113 (concurring opinion), 'The question that the Court treats exclusively as one of due process inevitably implicates considerations of both due process and equal protection.' That is likewise true here.
14
Moreover, a due process point is plainly raised where an accused claims that no grand jury found 'probable cause' to indict him, that its only finding concerned someone unknown at the time.
15
If Connor had complained of a coerced confession or of perjured testimony, and the facts on which he relied were developed in the state court, the constitutional questions would surely have been sufficiently raised without reference to the precise constitutional provisions involved. The situation here is no different.3
16
The judges to whom that issue of law is tendered are learned men who we must assume are knowledgeable as to the meaning of due process. A law student who tendered a brief that left due process at large would certainly not be worthy of an 'A.' But the nicety of analysis which we associate with scholarship has no functional role to play in this area of exhaustion of state remedies. When we go to that extreme, we make a trap out of the exhaustion doctrine which promises to exhaust the litigant and his resources, not the remedies.
17
I fear that our reluctance to backstop the Court of Appeals in the present case is symptomatic of this Court's trend to sidestep all possible controversies so as it hopes, to let them disappear. Of course we should remit a litigant to his state tribunal if facts have emerged which were not known at the time of the trial or if intervening decisions have outdated the earlier state decision. No such situation exists here. The facts are simple and uncontested: Connor's name was substituted for John Doe after the indictment was returned. The point of law is clear now and will be no clearer on the remand. Its vulnerability tested by due process was as obvious when the case was before the Supreme Judicial Court of Massachusetts as it now is. I think the Court of Appeals acted responsibly in ruling on it. We should decide the merits here and now. Endless repetitive procedures are encouraged by today's ruling on exhaustion of remedies. I would bring this litigation to an end today by applying the exhaustion-of-remedy rule to terminate rather than multiply procedures that now engulf the state-federal regime.
1
308 F.Supp. 843 (Mass.1970).
2
Title 28 U.S.C. § 2254 provides in pertinent part:
'(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
'(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.'
3
Respondent does not contend that there are no available state judicial remedies through which he can present the equal protection claim. It appears that Massachusetts provides postconviction procedures adequate to adjudicate that claim, either by motion for a new trial, Mass.Gen.Laws Ann., c. 278, § 29; see Earl v. Commonwealth, 356 Mass. 181, 248 N.E.2d 498 (1969), or by writ of error, Mass.Gen.Laws Ann., c. 250; see Cortellesso v. Commonwealth, 354 Mass. 514, 238 N.E.2d 516 (1968); Crowell v. Commonwealth, 352 Mass. 288, 225 N.E.2d 330 (1967); Shoppers' World, Inc. v. Board of Assessors, 348 Mass. 366, 376 n. 9, 203 N.E.2d 811, 819 n. 9 (1965).
4
'If the name of an accused person is unknown to the grand jury, he may be described by a fictitious name or by any other practicable description, with an allegation that his real name is unknown. An indictment of the defendant by a fictitious or erroneous name shall not be ground for abatement; but if at any subsequent stage of the proceedings his true name is discovered, it shall be entered on the record and may be used in the subsequent proceedings, with a reference to the fact that he was indicted by the name or description mentioned in the indictment.'
5
Although the Massachusetts Constitution does not expressly provide for grand jury indictments, the Massachusetts courts have construed Art. XII of the Declaration of Rights to require that "no person . . . shall be held to answer for a capital or otherwise infamous crime . . . unless he shall have been previously charged on the presentment or indictment of a grand jury.' Jones v. Robbins, 74 Mass. 329, 344—345 (1857).
6
In arguing his first assignment of error:
'(T)he dismissal in the Gedzium case of the applicability of the Fifth Amendment provision . . . would appear to be in need of reexamination, in the light of the development by the United States Supreme Court . . . of the doctrine of applicability of guarantees of the Federal Bill of Rights to the states by virtue of the Fourteenth Amendment.' Brief for Connor in the Massachusetts Supreme Judicial Court 13.
In arguing his third and fourth assignments of error:
'As set forth supra in the argument in support of the first Assignment, the indictment of 'John Doe' was a nullity because it was a general indictment, not limited to any identifiable individual. Since this is a capital case, the defendant Connor was prosecuted in violation of his constitutional right to due process in that he was put to trial without having been indicted by a Grand Jury.' Id., at 14.
7
Nor did respondent's federal habeas petition assert a denial of equal protection. The petition alleges that '(h)e was brought to trial without indictment or presentment in violation of the Fifth Amendment and of the Massachusetts Constitution, . . . (of) the statutory provisions of (the fictitious-name statute), and of the rule of the common law that an indictment in a capital case . . . forbids any amendment to such an indictment.' In his memorandum in support of the petition, respondent argued that the Massachusetts indictment procedure 'must be administered in accordance with the principles pertaining to the Grand Jury as established by the law of the land, i.e., in accordance with due process as created by the common law and adopted by our Constitution. . . . In accordance with these principles, since the indictment did not name nor describe (respondent), it was, as to him, a nullity, and remained so after amendment.' The District Court, noting that respondent had 'argued indiscriminately on the basis of the statutes and constitution of the Commonwealth of Massachusetts, as well as upon federal grounds,' 308 F.Supp., at 845 n. 2, considered respondent's contention to be 'that the amendment of the indictment to substitute Connor's name for John Doe was a violation of the Fifth Amendment. The court rejected that contention on the ground 'that the due process clause of the Fourteenth Amendment does not make applicable to the states the grand jury requirement of the Fifth Amendment.' Id., at 845.
8
See n. 2, supra.
9
The decision of the Court of Appeals prompted respondent, for the first time in any court, to advance the argument in this Court that 'since indictment is the only process provided for the finding of probable cause in Massachusetts prior to trial, its denial in Connor's case alone was undoubtedly a violation of Connor's federal rights not only as to due process, but also equal protection, under the Fourteenth Amendment, as stated by the Chief Judge of the Circuit Court.' Brief for Respondent 15.
10
Respondent reiterated these contentions in his federal habeas petition. See n. 7, supra.
1
The Court properly says that respondent tendered the validity of Commonwealth v. Gedzium, 259 Mass. 453, 156 N.E. 890, to the Supreme Judicial Court of Massachusetts. That, however, was in his first assignment of error. But in his third and fourth assignments of error he alleged that he was prosecuted 'in violation of his constitutional right to due process in that he was put to trial without having been indicted by a Grand Jury.'
2
The overlap is, of course, not total. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884. But the extent to which the two concepts merge has been a subject of debate since Representative John A. Bingham of Ohio, an architect of the Fourteenth Amendment, used the phrases 'due process' and 'equal protection' interchangeably on the floor of Congress. Cong. Globe, 39th Cong., 1st Sess., 1088—1089. See, e.g., Wilson, The Merging Concepts of Liberty and Equality, 12 Wash. & Lee L.Rev. 182, Antieau, Equal Protection Outside the Clause, 40 Calif.L.Rev. 362, Tussman & tenBroek, The Equal Protection of the Laws, 37 Calif.L.Rev. 341. Compare Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, and Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, with Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158.
There is apparently a similar controversy in India, whose constitution also contains both a due process and equal protection clause. See, e.g., Narain, Equal Protection Guarantee and the Right of Property Under the Indian Constitution, 15 Int. & Comp. L.Q. 199.
3
Daugharty v. Gladden, 257 F.2d 750 (CA9), which the Court cites, is instructive. Daugharty was an indigent state prisoner. He appealed the denial of state habeas corpus to the intermediate state appellate court, but that court dismissed the appeal because Daugharty could not afford to supply an appellate transcript. He then moved the state supreme court for an order requiring that he be supplied a transcript free of charge, and when that motion was denied, sought federal habeas corpus. The District Judge denied the application for a writ on the grounds Daugharty had failed to exhaust state remedies. Despite the fact that Daugharty never even mentioned the Fourteenth Amendment, much less the Equal Protection Clause, the Court of Appeals held that his motion in the state supreme court satisfied the exhaustion requirement.
'In moving the Oregon Supreme Court for an order requiring that a transcript be supplied without expense to him, Daugharty called attention to his inability to pay for such a record. This provided that court with all of the facts necessary to give application to the constitutional principle upon which appellant relies. . . . (E)xhaustion of state remedies is not to be denied because the Fourteenth Amendment was not specifically mentioned.' Id., at 758.
Analogously, the Court of Appeals said in the instant case:
'Petitioner did not present the constitutional question to the Massachusetts court in the particular focus in which this opinion is directed. We suggested it when the case reached us, and invited the Commonwealth to file a supplemental brief. Not unnaturally its first contention was to assert that petitioner had not exhausted his state remedy, citing Needel v. Scafati, 1 Cir., 1969, 412 F.2d 761, cert. denied 396 U.S. 861, 90 S.Ct. 133, 24 L.Ed.2d 113, and Subiolosky v. Commonwealth, 1 Cir., 1969, 412 F.2d 691. We find these cases inapposite. This opinion considers neither facts, as in Needel, nor precedent, as in Subilosky, that was not available to the Massachusetts court when petitioner was before it. Petitioner presented the court with 'an opportunity to apply controlling legal principles to the facts bearing upon (his) constitutional claim.' United States ex rel. Kemp v. Pate, 7 Cir., 1966, 359 F.2d 749, 751; cf. Wilbur v. Maine, 1 Cir., 1970, 421 F.2d 1327. That is enough to satisfy the requirements of the exhaustion . . . doctrine. Sullivan v. Scafati, 1 Cir., 1970, 428 F.2d 1023, 1024 n. 1. We therefore turn to the merits.' 434 F.2d 673, 674.
| 01
|
404 U.S. 388
92 S.Ct. 544
404 U.S. 998
30 L.Ed.2d 525
UNITED STATES of America, plaintiff,v.State of LOUISIANA et al.
No. 9, Original.
Supreme Court of the United States
December 20, 1971
SUPPLEMENTAL DECREE
1
It appearing to the Court that its opinion herein of March 3, 1969, 394 U.S. 11, 89 S.Ct. 773, 22 L.Ed.2d 44, rejected every ground asserted by the State of Louisiana in support of its claim to rights in the area of the continental shelf hereinafter described, and that no issue as to said area is now pending before the Special Master appointed herein by order of May 19, 1969, 395 U.S. 901, 89 S.Ct. 1737, 23 L.Ed.2d 215; and
2
It further appearing that substantial revenues derived from lands lying wholly within said area are now being held impounded by the United States pursuant to the parties' Interim Agreement of October 12, 1956, as amended, on file herein, and that there is no reason why the Court should not at this time enter a supplemental decree declaring the rights of the United States in the described area and terminating the obligation of the United States to hold impounded the revenues heretofore or hereafter derived from leases of lands lying wholly within the described area:
It is ordered, adjudged and decreed:
3
1. As against the defendant State of Louisiana and all persons claiming under it, the United States has exclusive rights to explore the area of the continental shelf lying more than one foot seaward of the line described in paragraph 3 hereof, and to exploit the natural resources of said area. The State of Louisiana is not entitled to any interest in such lands, minerals, or resources, and said State, its privies, assigns, lessees and other persons claiming under it are hereby enjoined from interfering with the rights of the United States in such lands, minerals and resources.
4
2. All sums now held impounded by the United States under the Interim Agreement of October 12, 1956, as amended, derived from leases of lands lying wholly within the area referred to in paragraph 1 hereof are hereby released to the United States absolutely, and the United States is hereby relieved of any obligation under said agreement to impound any sums hereafter received by it from leases of lands lying wholly within said area.
5
3. The line referred to in paragraph 1 hereof is described by coordinates in the Louisiana Plane Coordinate System, South Zone, as follows:
6
X Y
BEGINNING AT.................. 2769356.556 575649.806
BY STRAIGHT LINE TO........... 2790257.937 526389.980
BY ARC CENTERED AT............ 2779032.000 512013.000
TO............................ 2791384.930 525434.041
BY STRAIGHT LINE TO........... 2793118.930 523838.041
BY ARC CENTERED AT............ 2780766.000 510417.000
TO............................ 2794593.837 522312.804
BY STRAIGHT LINE TO........... 2795886.837 520809.804
BY ARC CENTERED AT............ 2782059.000 508914.000
TO............................ 2796579.124 519954.164
BY STRAIGHT LINE TO........... 2799209.124 516495.164
Page 390
7
BY ARC CENTERED AT............ 2784689.000 505455.000
TO............................ 2800440.568 514653.224
BY STRAIGHT LINE TO........... 2804269.568 508096.224
BY ARC CENTERED AT............ 2788518.000 498898.000
TO............................ 2804494.998 507698.840
BY STRAIGHT LINE TO........... 2806027.998 504915.840
BY ARC CENTERED AT............ 2790051.000 496115.000
TO............................ 2807013.645 502822.304
BY STRAIGHT LINE TO........... 2808652.645 498677.304
BY ARC CENTERED AT............ 2791690.000 491970.000
TO............................ 2809151.167 497245.118
BY STRAIGHT LINE TO........... 2812250.167 486987.118
BY ARC CENTERED AT............ 2794789.000 481712.000
TO............................ 2812519.378 485996.033
BY STRAIGHT LINE TO........... 2813932.378 480148.033
BY ARC CENTERED AT............ 2796202.000 475864.000
TO............................ 2814261.901 478425.093
BY STRAIGHT LINE TO........... 2815268.901 471324.093
BY ARC CENTERED AT............ 2797209.000 468763.000
TO............................ 2815426.129 469687.898
BY STRAIGHT LINE TO........... 2815673.129 464822.898
BY ARC CENTERED AT............ 2797456.000 463898.000
TO............................ 2815696.593 463894.844
BY STRAIGHT LINE TO........... 2815695.593 458115.844
BY ARC CENTERED AT............ 2797455.000 458119.000
TO............................ 2815656.660 456927.864
BY STRAIGHT LINE TO........... 2815268.660 450998.864
BY ARC CENTERED AT............ 2797067.000 452190.000
TO............................ 2815170.804 449960.314
BY STRAIGHT LINE TO........... 2813956.804 440103.314
BY ARC CENTERED AT............ 2795853.000 442333.000
TO............................ 2813808.964 439123.233
BY STRAIGHT LINE TO........... 2812677.964 432796.233
BY ARC CENTERED AT.............2794722.000 436006.000
TO............................ 2812418.508 431584.141
BY STRAIGHT LINE TO........... 2810956.508 425733.141
BY ARC CENTERED AT............ 2793260.000 430155.000
TO............................ 2810698.968 424806.950
BY STRAIGHT LINE TO........... 2807853.968 415529.950
BY ARC CENTERED AT............ 2790415.000 420878.000
TO............................ 2807571.652 414683.766
BY STRAIGHT LINE TO........... 2805321.652 408451.766
BY ARC CENTERED AT............ 2788165.000 414646.000
TO............................ 2805227.217 408196.195
BY STRAIGHT LINE TO........... 2803786.217 404384.195
BY ARC CENTERED AT............ 2786724.000 410834.000
TO............................ 2803319.235 403263.173
BY STRAIGHT LINE TO........... 2799845.235 395648.173
BY ARC CENTERED AT............ 2783250.000 403219.000
TO............................ 2798970.928 393968.505
Page 391
8
BY STRAIGHT LINE TO........... 2795393.928 387889.505
BY ARC CENTERED AT............ 2779673.000 397140.000
TO............................ 2795310.866 387749.772
BY STRAIGHT LINE TO........... 2793559.866 384833.772
BY ARC CENTERED AT............ 2777922.000 394224.000
TO............................ 2792248.791 382934.080
BY STRAIGHT LINE TO........... 2790813.791 381113.080
BY ARC CENTERED AT............ 2776487.000 392403.000
TO............................ 2789360.151 379480.105
BY ARC CENTERED AT............ 2774670.000 390293.000
TO............................ 2788262.435 378128.916
BY STRAIGHT LINE TO........... 2786553.159 375044.826
BY ARC CENTERED AT............ 2770599.000 383887.000
TO............................ 2785045.121 372750.177
BY STRAIGHT LINE TO........... 2783941.664 371318.828
BY STRAIGHT LINE TO........... 2783791.761 371061.536
BY ARC CENTERED AT............ 2768031.000 380244.000
TO............................ 2780548.119 366975.957
BY STRAIGHT LINE TO........... 2775735.205 360552.955
BY ARC CENTERED AT............ 2761138.000 371491.000
TO............................ 2775111.280 359766.382
BY STRAIGHT LINE TO........... 2773031.020 357287.149
BY ARC CENTERED AT............ 2757465.000 366796.000
TO............................ 2771721.145 355417.004
BY STRAIGHT LINE TO........... 2770633.235 354054.018
BY STRAIGHT LINE TO........... 2770504.786 353847.463
BY ARC CENTERED AT............ 2755015.000 363480.000
TO............................ 2767787.706 350457.818
BY STRAIGHT LINE TO........... 2761993.706 344774.818
BY ARC CENTERED AT............ 2749221.000 357797.000
TO............................ 2760702.849 343623.561
BY STRAIGHT LINE TO........... 2757790.849 341264.561
BY ARC CENTERED AT............ 2746309.000 355438.000
TO............................ 2756371.988 340224.338
BY STRAIGHT LINE TO........... 2773418.101 206994.932
BY ARC CENTERED AT............ 2755325.000 204680.000
TO............................ 2773307.767 201623.969
BY STRAIGHT LINE TO........... 2773160.767 200758.969
BY ARC CENTERED AT............ 2755178.000 203815.000
TO............................ 2773015.068 199999.475
BY STRAIGHT LINE TO........... 2772420.179 188058.433
BY ARC CENTERED AT............ 2754263.000 186316.000
TO............................ 2772345.899 183922.675
BY STRAIGHT LINE TO........... 2771967.899 181066.675
BY ARC CENTERED AT............ 2753885.000 183460.000
TO............................ 2766173.905 169980.310
BY STRAIGHT LINE TO........... 2764758.905 168690.310
BY ARC CENTERED AT............ 2752470.000 182170.000
TO............................ 2763667.122 167770.566
BY STRAIGHT LINE TO........... 2740620.854 137484.221
Page 392
9
BY ARC CENTERED AT............ 2726105.000 148530.000
TO............................ 2735648.943 132985.471
BY STRAIGHT LINE TO........... 2719764.466 115956.608
BY ARC CENTERED AT............ 2701773.000 118961.000
TO............................ 2717763.031 110183.863
BY STRAIGHT LINE TO........... 2717662.031 109999.863
BY ARC CENTERED AT............ 2701672.000 118777.000
TO............................ 2714989.110 106312.097
BY ARC CENTERED AT............ 2701104.000 118141.000
TO............................ 2714747.154 106033.830
BY STRAIGHT LINE TO........... 2714613.154 105882.830
BY ARC CENTERED AT............ 2700970.000 117990.000
TO............................ 2712654.457 103983.120
BY ARC CENTERED AT............ 2699658.000 116782.000
TO............................ 2699042.141 98551.807
BY STRAIGHT LINE TO........... 2614267.867 73928.355
BY ARC CENTERED AT............ 2609180.000 91445.000
TO............................ 2597415.825 77505.006
BY STRAIGHT LINE TO........... 2595525.825 79100.006
BY ARC CENTERED AT............ 2607290.000 93040.000
TO............................ 2589264.969 90244.022
BY STRAIGHT LINE TO........... 2573559.774 191491.823
BY STRAIGHT LINE TO........... 2572517.559 191919.643
BY ARC CENTERED AT............ 2576174.000 209790.000
TO............................ 2567199.659 193909.810
BY ARC CENTERED AT............ 2574890.000 210450.000
TO............................ 2566471.962 194268.039
BY STRAIGHT LINE TO........... 2564468.949 194806.822
BY ARC CENTERED AT............ 2565940.000 212988.000
TO............................ 2559750.152 195829.765
BY STRAIGHT LINE TO........... 2559111.844 196060.036
BY ARC CENTERED AT............ 2562149.000 214046.000
TO............................ 2557271.764 196469.544
BY STRAIGHT LINE TO........... 2557018.765 196539.748
BY STRAIGHT LINE TO........... 2552324.142 197552.879
BY ARC CENTERED AT............ 2556172.000 215383.000
TO............................ 2551363.075 197787.732
BY STRAIGHT LINE TO........... 2414966.738 172672.945
BY STRAIGHT LINE TO........... 2410270.288 168699.151
BY STRAIGHT LINE TO........... 2406006.195 164748.910
BY ARC CENTERED AT............ 2393610.000 178130.000
TO............................ 2404971.660 163860.034
BY STRAIGHT LINE TO........... 2397194.660 157668.034
BY ARC CENTERED AT............ 2385833.000 171938.000
TO............................ 2396858.180 157406.495
BY STRAIGHT LINE TO........... 2392712.390 154261.048
BY STRAIGHT LINE TO........... 2389824.019 151967.545
BY ARC CENTERED AT............ 2376485.000 164409.000
TO............................ 2387438.051 149823.051
BY STRAIGHT LINE TO........... 2385828.051 148614.051
Page 393
10
BY ARC CENTERED AT............ 2374875.000 163200.000
TO............................ 2382739.005 146741.669
BY STRAIGHT LINE TO........... 2382462.756 146609.674
BY STRAIGHT LINE TO........... 2379481.241 144717.970
BY ARC CENTERED AT............ 2369709.000 160120.000
TO............................ 2378912.544 144371.540
BY STRAIGHT LINE TO........... 2376898.544 143194.540
BY ARC CENTERED AT............ 2367695.000 158943.000
TO............................ 2374966.704 142214.534
BY STRAIGHT LINE TO........... 2373711.682 141668.989
BY ARC CENTERED AT............ 2364392.000 157349.000
TO............................ 2367742.517 139418.767
BY STRAIGHT LINE TO........... 2365248.314 138184.960
BY ARC CENTERED AT............ 2354070.000 152599.000
TO............................ 2349744.041 134878.805
BY STRAIGHT LINE TO........... 2348371.940 134393.582
BY STRAIGHT LINE TO........... 2346096.020 133533.975
BY ARC CENTERED AT............ 2339651.000 150598.000
TO............................ 2344530.100 133022.061
BY STRAIGHT LINE TO........... 2342882.004 132564.548
BY STRAIGHT LINE TO........... 2341883.034 132218.265
BY STRAIGHT LINE TO........... 2334774.627 129342.086
BY ARC CENTERED AT............ 2327933.000 146251.000
TO............................ 2333793.990 128977.667
BY STRAIGHT LINE TO........... 2328326.990 127122.667
BY ARC CENTERED AT............ 2322466.000 144396.000
TO............................ 2326958.626 126717.325
BY STRAIGHT LINE TO........... 2326905.790 126703.898
BY ARC CENTERED AT............ 2319608.000 143421.000
TO............................ 2324588.088 125873.409
BY STRAIGHT LINE TO........... 2322643.088 125321.409
BY ARC CENTERED AT............ 2317663.000 142869.000
TO............................ 2322367.586 125245.547
BY STRAIGHT LINE TO........... 2318606.586 124241.547
BY ARC CENTERED AT............ 2313902.000 141865.000
TO............................ 2314460.343 123632.954
BY STRAIGHT LINE TO........... 2312762.343 123580.954
BY ARC CENTERED AT............ 2312204.000 141813.000
TO............................ 2311215.315 123599.221
BY STRAIGHT LINE TO........... 2309557.315 123689.221
BY ARC CENTERED AT............ 2310546.000 141903.000
TO............................ 2308711.076 123754.934
BY ARC CENTERED AT............ 2300326.000 139954.000
TO............................ 2308388.131 123591.809
BY STRAIGHT LINE TO........... 2306600.131 122710.809
BY ARC CENTERED AT............ 2298538.000 139073.000
TO............................ 2302488.899 121265.428
BY STRAIGHT LINE TO........... 2299991.899 120711.428
BY ARC CENTERED AT............ 2296041.000 138519.000
TO............................ 2295410.988 120289.290
Page 394
11
BY STRAIGHT LINE TO........... 2294513.988 120320.290
BY ARC CENTERED AT............ 2295144.000 138550.000
TO............................ 2288531.687 121550.101
BY STRAIGHT LINE TO........... 2287770.687 121846.101
BY ARC CENTERED AT............ 2294383.000 138846.000
TO............................ 2287412.160 121989.944
BY STRAIGHT LINE TO........... 2284138.223 122399.427
BY ARC CENTERED AT............ 2286402.000 140499.000
TO............................ 2283007.179 122577.102
BY STRAIGHT LINE TO........... 2277807.179 123562.102
BY ARC CENTERED AT............ 2281202.000 141484.000
TO............................ 2276614.048 123829.824
BY STRAIGHT LINE TO........... 2270161.048 125506.824
BY ARC CENTERED AT............ 2274749.000 143161.000
TO............................ 2267618.118 126372.023
BY STRAIGHT LINE TO........... 2263074.118 128302.023
BY ARC CENTERED AT............ 2270205.000 145091.000
TO............................ 2262735.940 128449.715
BY STRAIGHT LINE TO........... 2256980.940 131032.715
BY ARC CENTERED AT............ 2264450.000 147674.000
TO............................ 2255335.199 131874.012
BY STRAIGHT LINE TO........... 2251881.284 133866.529
BY STRAIGHT LINE TO........... 2250291.214 134590.217
BY STRAIGHT LINE TO........... 2229997.048 129637.207
BY STRAIGHT LINE TO........... 2228299.063 128761.074
BY ARC CENTERED AT............ 2219935.000 144971.000
TO............................ 2227466.216 128357.751
BY STRAIGHT LINE TO........... 2225677.216 127546.751
BY ARC CENTERED AT............ 2218146.000 144160.000
TO............................ 2222547.419 126458.397
BY STRAIGHT LINE TO........... 2219572.429 125718.680
BY STRAIGHT LINE TO........... 2212203.201 123742.459
BY STRAIGHT LINE TO........... 2203721.663 121100.023
BY ARC CENTERED AT............ 2198296.000 138515.000
TO............................ 2202940.874 120875.715
BY STRAIGHT LINE TO........... 2196974.874 119304.715
BY ARC CENTERED AT. 2192330.000 136944.000
TO............................ 2195302.266 118947.198
BY STRAIGHT LINE TO........... 2189988.208 118069.554
BY STRAIGHT LINE TO........... 2188596.458 117772.421
BY ARC CENTERED AT............ 2184788.000 135611.000
TO............................ 2185155.886 117374.117
BY ARC CENTERED AT............ 2182166.000 135368.000
TO............................ 2181100.490 117158.554
BY STRAIGHT LINE TO........... 2179579.490 117247.554
BY ARC CENTERED AT............ 2180645.000 135457.000
TO............................ 2177978.852 117412.309
BY STRAIGHT LINE.............. 2172699.849 117308.349
BY STRAIGHT LINE TO........... 2171638.111 117082.068
BY ARC CENTERED AT............ 2167836.000 134922.000
TABLE CONTINUED
Page 395
12
TO............................. 2168752.572 116704.450
BY STRAIGHT LINE TO............ 2165393.572 116535.450
BY ARC CENTERED AT..............2164477.000 134753.000
TO............................. 2161326.081 116786.616
BY STRAIGHT LINE TO............ 2160026.671 117014.505
BY STRAIGHT LINE TO............ 2156272.569 117354.955
BY ARC CENTERED AT............. 2157920.000 135521.000
TO............................. 2155033.394 117510.260
BY STRAIGHT LINE TO............ 2149319.763 118425.992
BY ARC CENTERED AT............. 2147751.000 136599.000
TO............................. 2149162.352 118413.090
BY STRAIGHT LINE TO............ 2145000.352 118090.090
BY ARC CENTERED AT............. 2143589.000 136276.000
TO............................. 2143589.000 118035.407
BY STRAIGHT LINE TO............ 2139529.000 118035.407
BY ARC CENTERED AT............. 2139529.000 136276.000
TO............................. 2137974.807 118101.740
BY STRAIGHT LINE TO............ 2136687.713 118211.811
BY STRAIGHT LINE TO............ 2132677.620 118549.888
BY ARC CENTERED AT............. 2134210.000 136726.000
TO............................. 2130789.620 118808.962
BY STRAIGHT LINE TO............ 2129668.620 119022.962
BY ARC CENTERED AT............. 2133089.000 136940.000
TO............................. 2126158.210 120067.437
BY STRAIGHT LINE TO............ 2122636.540 121514.043
BY STRAIGHT LINE TO............ 2122090.600 121683.588
BY STRAIGHT LINE TO............ 2118739.612 122394.088
BY ARC CENTERED AT............. 2122523.000 140238.000
TO............................. 2114775.806 123724.363
BY STRAIGHT LINE TO............ 2111081.806 125457.363
BY ARC CENTERED AT............. 2118829.000 141971.000
TO............................. 2108033.001 127268.427
BY STRAIGHT LINE TO............ 2107269.901 127829.427
BY ARC CENTERED AT............. 2118065.000 142532.000
TO............................. 2103682.105 131313.642
BY STRAIGHT LINE TO............ 2103291.338 131814.638
BY STRAIGHT LINE TO............ 2063551.901 176572.248
BY ARC CENTERED AT............. 2075295.000 190530.000
TO............................. 2059950.518 180667.643
BY ARC CENTERED AT............. 2071131.000 195080.000
TO............................. 2058843.067 181599.424
BY ARC CENTERED AT............. 2062055.000 199555.000
TO............................. 2057133.878 181990.781
BY STRAIGHT LINE TO............ 2053778.878 182930.781
BY ARC CENTERED AT............. 2058700.000 200495.000
TO............................. 2053474.211 183019.006
BY STRAIGHT LINE TO............ 2052967.358 183053.121
BY STRAIGHT LINE TO............ 2051871.023 183006.136
BY ARC CENTERED AT............. 2051090.000 201230.000
Page 396
13
TO............................. 2050844.853 182991.054
BY STRAIGHT LINE TO............ 2048984.853 183016.054
BY ARC CENTERED AT............. 2049230.000 201255.000
TO............................. 2048033.279 183053.706
BY STRAIGHT LINE............... 2044865.110 183262.011
BY STRAIGHT LINE............... 2041482.009 183446.456
BY ARC CENTERED AT............. 2042475.000 201660.000
TO............................. 2037472.505 184118.784
BY STRAIGHT LINE TO............ 2033138.620 185354.743
BY STRAIGHT LINE TO............ 2032933.709 185387.056
BY ARC CENTERED AT............. 2035775.000 203405.000
TO............................. 2029790.979 186173.902
BY STRAIGHT LINE TO............ 2027400.979 187003.902
BY ARC CENTERED AT............. 2033385.000 204235.000
TO............................. 2026833.971 187211.391
BY STRAIGHT LINE TO............ 2023509.988 188490.527
BY STRAIGHT LINE TO............ 2020958.847 189326.687
BY ARC CENTERED AT............. 2026640.000 206660.00
TO............................. 2019189.740 190010.289
BY STRAIGHT LINE TO............ 2016613.211 191163.211
BY STRAIGHT LINE TO............ 2015795.894 191414.427
BY ARC CENTERED AT............. 2021155.000 208850.000
TO............................. 2013823.478 192147.664
BY STRAIGHT LINE TO............ 2010121.478 193772.664
BY ARC CENTERED AT............. 2017453.000 210475.000
TO............................. 2007660.073 195086.114
BY STRAIGHT LINE TO............ 2006450.073 195856.114
BY ARC CENTERED AT............. 2016243.000 211245.000
TO............................. 2002812.039 198902.856
BY STRAIGHT LINE TO............ 2001329.365 200516.331
BY STRAIGHT LINE TO............ 1998627.524 203118.747
BY STRAIGHT LINE TO............ 1996876.875 204647.104
BY ARC CENTERED AT............. 2008873.000 218388.000
TO............................. 1994484.382 207176.983
BY STRAIGHT LINE TO............ 1993669.382 208222.983
BY ARC CENTERED AT............. 2008058.000 219434.000
TO............................. 1992024.459 210736.599
BY STRAIGHT LINE TO............ 1991723.504 211291.404
BY STRAIGHT LINE TO............ 1991392.007 211653.006
BY STRAIGHT LINE TO............ 1987526.734 215291.902
BY ARC CENTERED AT............. 2000030.000 228573.000
TO............................. 1985880.690 217061.430
BY STRAIGHT LINE TO............ 1984418.690 218858.430
BY ARC CENTERED AT............. 1998568.000 230370.000
TO............................. 1982725.876 221328.633
BY STRAIGHT LINE TO............ 1981279.040 223863.752
BY ARC CENTERED AT............. 1987818.000 240892.000
TO............................. 1978538.859 225187.963
BY STRAIGHT LINE TO............ 1913512.136 252159.733
BY ARC CENTERED AT............. 1914373.000 270380.000
TO............................. 1902085.015 256899.471
Page 397
14
BY STRAIGHT LINE TO............ 1899965.772 257778.490
BY ARC CENTERED AT............. 1896827.000 275747.000
TO............................. 1895099.636 257588.381
BY ARC CENTERED AT............. 1882306.000 270590.000
TO............................. 1867537.422 259884.472
BY ARC CENTERED AT............. 1872418.000 277460.000
TO............................. 1858533.650 265630.205
BY ARC CENTERED AT............. 1843467.000 275912.000
TO............................. 1848728.806 258446.816
BY ARC CENTERED AT............. 1835344.000 270839.000
TO............................. 1842206.261 253938.450
BY STRAIGHT LINE TO............ 1840881.261 253400.450
BY ARC CENTERED AT............. 1834019.000 270301.000
TO............................. 1817313.904 262975.771
BY STRAIGHT LINE TO............ 1816821.904 264097.771
BY ARC CENTERED AT............. 1833527.000 271423.000
TO............................. 1815531.092 274400.671
BY ARC CENTERED AT............. 1820994.000 291804.000
TO............................. 1808996.684 278064.144
BY ARC CENTERED AT............. 1809845.000 296285.000
TO............................. 1792971.196 289357.232
BY ARC CENTERED AT............. 1791584.000 307545.000
TO............................. 1773422.454 305848.689
BY ARC CENTERED AT............. 1783067.000 321331.000
TO............................. 1771283.720 307407.152
BY ARC CENTERED AT............. 1782391.000 321876.000
TO............................. 1769316.873 309156.470
BY ARC CENTERED AT............. 1778769.000 324757.000
TO............................. 1763171.778 315299.416
BY ARC CENTERED AT............. 1763190.000 333540.000
TO............................. 1762008.035 315337.742
BY STRAIGHT LINE TO............ 1761238.035 315387.742
BY ARC CENTERED AT............. 1762420.000 333590.000
TO............................. 1761003.510 315404.490
BY ARC CENTERED AT............. 1758630.000 333490.000
TO............................. 1751584.928 316664.834
BY STRAIGHT LINE TO............ 1749526.738 316597.235
BY STRAIGHT LINE TO............ 1745677.439 316238.492
BY STRAIGHT LINE TO............ 1741756.932 315744.746
BY STRAIGHT LINE TO............ 1738097.906 314155.450
BY ARC CENTERED AT............. 1730831.000 330886.000
TO............................. 1737269.265 313819.425
BY STRAIGHT LINE TO............ 1733961.536 312571.604
BY STRAIGHT LINE TO............ 1733064.913 312109.811
BY ARC CENTERED AT............. 1724713.000 328326.000
TO............................. 1729983.294 310863.376
BY STRAIGHT LINE TO............ 1729556.701 310734.628
BY STRAIGHT LINE TO............ 1727510.374 309315.183
BY ARC CENTERED AT............. 1717114.000 324303.000
TO............................. 1726647.410 308752.009
Page 398
15
BY STRAIGHT LINE TO............ 1721462.901 305573.687
BY STRAIGHT LINE TO............ 1721351.205 305467.060
BY ARC CENTERED AT............. 1708756.000 318661.000
TO............................. 1715564.505 301738.722
BY STRAIGHT LINE TO............ 1713598.505 300947.722
BY ARC CENTERED AT............. 1706790.000 317870.000
TO............................. 1711470.692 300240.186
BY STRAIGHT LINE TO............ 1707760.692 299255.186
BY ARC CENTERED AT............. 1703080.000 316885.000
TO............................. 1706764.569 299020.421
BY STRAIGHT LINE TO............ 1704364.569 298525.421
BY ARC CENTERED AT............. 1700680.000 316390.000
TO............................. 1702465.472 298237.002
BY STRAIGHT LINE TO............ 1698144.472 297812.002
BY ARC CENTERED AT............. 1696359.000 315965.000
TO............................. 1696238.714 297724.804
BY STRAIGHT LINE TO............ 1692447.714 297749.804
BY ARC CENTERED AT............. 1692568.000 315990.000
TO............................. 1691302.392 297793.367
BY STRAIGHT LINE TO............ 1688714.392 297973.367
BY ARC CENTERED AT............. 1689980.000 316170.000
TO............................. 1687709.313 298071.292
BY STRAIGHT LINE TO............ 1684999.313 298411.292
BY ARC CENTERED AT............. 1687270.000 316510.000
TO............................. 1683392.698 298686.259
BY STRAIGHT LINE TO............ 1674667.698 300584.259
BY ARC CENTERED AT............. 1678545.000 318408.000
TO............................. 1674182.260 300696.825
BY STRAIGHT LINE TO............ 1670983.260 301484.825
BY ARCH CENTERED AT............ 1675346.000 319196.000
TO............................. 1670472.396 301618.537
BY STRAIGHT LINE TO............ 1666144.396 302818.537
BY ARC CENTERED AT............. 1671018.000 320396.000
TO............................. 1665216.208 303102.694
BY STRAIGHT LINE TO............ 1663698.256 303611.957
BY STRAIGHT LINE TO............ 1662427.081 303960.024
BY STRAIGHT LINE TO............ 1661678.585 304151.016
BY STRAIGHT LINE TO............ 1659494.422 304615.679
BY ARC CENTERED AT............. 1663290.000 322457.000
TO............................. 1659476.114 304619.584
BY STRAIGHT LINE TO............ 1658119.984 304909.541
BY ARC CENTERED AT............. 1658887.000 323134.000
TO............................. 1656353.874 305070.155
BY ARC CENTERED AT............. 1655896.000 323305.000
TO............................. 1652649.679 305355.609
BY STRAIGHT LINE TO............ 1650183.679 305801.609
BY ARC CENTERED AT............. 1653430.000 323751.000
TO............................. 1648634.766 306151.995
BY STRAIGHT LINE TO............ 1647050.638 306583.626
BY ARC CENTERED AT............. 1649308.000 324684.000
Page 399
16
TO............................. 1643681.190 307332.970
BY STRAIGHT LINE TO............ 1636292.049 308606.828
BY STRAIGHT LINE TO............ 1627130.174 309806.774
BY STRAIGHT LINE TO............ 1620756.645 310390.406
BY ARCH CENTERED AT............ 1622420.000 328555.000
TO............................. 1619894.970 310490.021
BY STRAIGHT LINE TO............ 1614564.970 311235.021
BY ARC CENTERED AT............. 1617090.000 329300.000
TO............................. 1613147.762 311490.508
BY STRAIGHT LINE TO............ 1611814.388 311591.352
BY ARC CENTERED AT............. 1613190.000 329780.000
TO............................. 1609959.518 311827.752
BY STRAIGHT LINE TO............ 1606069.518 312527.752
BY ARC CENTERED AT............. 1609300.000 330480.000
TO............................. 1604701.693 312828.518
BY STRAIGHT LINE TO............ 1604290.346 312866.444
BY ARC CENTERED AT............. 1605965.000 331030.000
TO............................. 1601324.800 313389.485
BY STRAIGHT LINE TO............ 1601195.452 313403.353
BY ARC CENTERED AT............. 1603140.000 331540.000
TO............................. 1598672.218 313855.030
BY STRAIGHT LINE TO............ 1596369.924 314436.662
BY STRAIGHT LINE TO............ 1596179.536 314483.099
BY STRAIGHT LINE TO............ 1592424.426 315063.358
BY ARC CENTERED AT............. 1595210.000 333090.000
TO............................. 1591478.647 315235.134
BY ARC CENTERED AT............. 1594075.000 333290.000
TO............................. 1589693.705 315583.406
BY ARC CENTERED AT............. 1593010.000 333520.000
TO............................. 1589432.725 315633.627
BY STRAIGHT LINE TO............ 1588107.725 315898.627
BY ARC CENTERED AT............. 1591685.000 333785.000
TO............................. 1585928.488 316476.568
BY STRAIGHT LINE TO............ 1584286.461 317022.681
BY STRAIGHT LINE TO............ 1582201.158 317563.459
BY ARC CENTERED AT............. 1586780.000 335220.000
TO............................. 1581595.826 317731.616
BY STRAIGHT LINE TO............ 1576265.826 319311.616
BY ARC CENTERED AT............. 1581450.000 336800.000
TO............................. 1575360.430 319605.920
BY STRAIGHT LINE TO............ 1570080.430 321475.920
BY ARC CENTERED AT............. 1576170.000 338670.000
TO............................. 1569889.483 321544.746
BY STRAIGHT LINE TO............ 1565349.483 323209.746
BY ARC CENTERED AT............. 1571630.000 340335.000
TO............................. 1563529.454 323991.794
BY STRAIGHT LINE TO............ 1563104.470 324202.438
BY STRAIGHT LINE TO............ 1561073.459 324993.694
BY ARC CENTERED AT............. 1567695.000 341990.000
TO............................. 1558882.014 326019.699
Page 400
17
BY STRAIGHT LINE TO............ 1558878.845 326020.658
BY ARC CENTERED AT............. 1564160.000 343480.000
TO............................. 1556225.264 327055.652
BY STRAIGHT LINE TO............ 1556065.664 327132.756
BY STRAIGHT LINE TO............ 1553511.012 327893.991
BY ARC CENTERED AT............. 1558720.000 345375.000
TO............................. 1551769.032 328510.740
BY STRAIGHT LINE TO............ 1549575.133 329415.002
BY ARC CENTERED AT............. 1553840.000 347150.000
TO............................. 1546080.537 330642.124
BY STRAIGHT LINE TO............ 1543910.537 331662.124
BY ARC CENTERED AT............. 1551670.000 348170.000
TO............................. 1541402.425 333093.656
BY STRAIGHT LINE TO............ 1540010.551 333646.129
BY ARC CENTERED AT............. 1546740.000 350600.000
TO............................. 1537926.517 334629.973
BY STRAIGHT LINE TO............ 1531757.270 337418.384
BY ARC CENTERED AT............. 1539270.000 354040.000
TO............................. 1530263.411 338178.077
BY STRAIGHT LINE TO............ 1527498.411 339748.077
BY ARC CENTERED AT............. 1536505.000 355610.000
TO............................. 1526511.279 340350.748
BY STRAIGHT LINE TO............ 1526495.252 340356.351
BY ARC CENTERED AT............. 1532515.000 357575.000
TO............................. 1523958.793 341465.669
BY ARC CENTERED AT............. 1531240.000 358190.000
TO............................. 1522812.853 342012.780
BY STRAIGHT LINE TO............ 1516478.301 345312.618
BY STRAIGHT LINE TO............ 1505571.538 350398.247
BY ARC CENTERED AT............. 1513280.000 366930.000
TO............................. 1504778.049 350791.968
BY STRAIGHT LINE TO............ 1493968.049 356486.968
BY ARC CENTERED AT............. 1502470.000 372625.000
TO............................. 1493740.316 356609.013
BY STRAIGHT LINE TO............ 1488240.052 359606.990
BY STRAIGHT LINE TO............ 1483854.587 361809.134
BY ARC CENTERED AT............. 1492040.000 378110.000
TO............................. 1483320.003 362088.736
BY STRAIGHT LINE TO............ 1481463.717 363099.069
BY STRAIGHT LINE TO............ 1472522.370 367321.496
BY STRAIGHT LINE TO............ 1464631.664 370388.555
BY ARC CENTERED AT............. 1471240.000 387390.000
TO............................. 1464432.797 370467.198
BY STRAIGHT LINE TO............ 1461367.007 371700.413
BY STRAIGHT LINE TO............ 1455040.915 373829.471
BY STRAIGHT LINE TO............ 1449141.552 375497.695
BY ARC CENTERED AT............. 1454105.000 393050.000
TO............................. 1447393.776 376088.906
BY STRAIGHT LINE TO............ 1443223.776 377738.906
BY ARC CENTERED AT............. 1449935.000 394700.000
TABLE CONTINUED
Page 401
18
TO............................. 1442769.075 377925.950
BY STRAIGHT LINE TO............ 1437906.346 380003.323
BY STRAIGHT LINE TO............ 1435141.472 381047.641
BY STRAIGHT LINE TO............ 1431147.160 382502.176
BY ARC CENTERED AT............. 1431465.000 400740.000
TO............................. 1426148.360 383291.431
BY STRAIGHT LINE TO............ 1423703.360 384036.431
BY ARC CENTERED AT............. 1429020.000 401485.000
TO............................. 1421665.109 384792.942
BY STRAIGHT LINE TO............ 1421218.470 384903.464
BY ARC CENTERED AT............. 1425600.000 402610.000
TO............................. 1417427.962 386302.424
BY STRAIGHT LINE TO............ 1411695.359 388053.764
BY STRAIGHT LINE TO............ 1406674.661 389181.191
BY STRAIGHT LINE TO............ 1400158.431 390267.229
BY STRAIGHT LINE TO............ 1395814.598 390680.732
BY STRAIGHT LINE TO............ 1390918.652 390971.488
BY ARC CENTERED AT............. 1392000.000 409180.000
TO............................. 1390574.806 390995.170
BY STRAIGHT LINE TO............ 1386957.975 390976.807
BY STRAIGHT LINE TO............ 1385797.206 390941.712
BY STRAIGHT LINE TO............ 1383281.102 390515.548
BY ARC CENTERED AT............. 1380235.000 408500.000
TO............................. 1382826.840 390444.486
BY STRAIGHT LINE TO............ 1380530.215 390114.809
BY STRAIGHT LINE TO............ 1379792.836 389886.779
BY ARC CENTERED AT............. 1363392.000 397870.000
TO............................. 1364287.995 379651.426
BY STRAIGHT LINE TO............ 1363311.995 379603.426
BY ARC CENTERED AT............. 1362416.000 397822.000
TO............................. 1348021.258 386618.846
BY STRAIGHT LINE TO............ 1347740.102 386685.385
BY STRAIGHT LINE TO............ 1339580.030 387874.310
BY STRAIGHT LINE TO............ 1332310.668 388693.581
BY STRAIGHT LINE TO............ 1328040.717 388886.344
BY STRAIGHT LINE TO............ 1323345.435 388897.040
BY STRAIGHT LINE TO............ 1318623.382 388813.567
BY STRAIGHT LINE TO............ 1313960.559 388548.345
BY STRAIGHT LINE TO............ 1309176.109 388113.641
BY STRAIGHT LINE TO............ 1299212.104 386971.530
BY STRAIGHT LINE TO............ 1294263.747 386188.550
BY ARC CENTERED AT............. 1291413.000 404205.000
TO............................. 1293947.880 386141.401
BY STRAIGHT LINE TO............ 1288688.880 385403.401
BY ARC CENTERED AT............. 1286154.000 403467.000
TO............................. 1288273.366 385349.949
BY STRAIGHT LINE TO............ 1282879.366 384718.949
BY ARC CENTERED AT............. 1280760.000 402836.000
TO............................. 1282342.694 384664.200
BY STRAIGHT LINE TO............ 1277049.694 384203.200
Page 402
19
BY ARC CENTERED AT............. 1275467.000 402375.000
TO............................. 1276973.676 384196.739
BY STRAIGHT LINE TO............ 1266567.571 383334.246
BY STRAIGHT LINE TO............ 1261753.853 382854.687
BY STRAIGHT LINE TO............ 1256844.970 382176.061
BY STRAIGHT LINE TO............ 1252081.894 381444.329
BY STRAIGHT LINE TO............ 1247119.827 380488.609
BY ARC CENTERED AT............. 1243670.000 398400.000
TO............................. 1246625.928 380400.508
BY STRAIGHT LINE TO............ 1243865.458 379947.175
BY STRAIGHT LINE TO............ 1240510.889 379144.329
BY STRAIGHT LINE TO............ 1238894.264 378640.306
BY STRAIGHT LINE TO............ 1234691.701 377218.487
BY ARC CENTERED AT............. 1228846.000 394497.000
TO............................. 1233981.468 376994.252
BY ARC CENTERED AT............. 1225768.000 393281.000
TO............................. 1230677.055 375713.405
BY STRAIGHT LINE TO............ 1229077.217 374979.877
BY ARC CENTERED AT............. 1219065.000 390227.000
TO............................. 1227370.800 373987.144
BY STRAIGHT LINE TO............ 1226184.927 373380.635
BY STRAIGHT LINE TO............ 1227213.819 367277.089
BY ARC CENTERED AT............. 1209227.000 364245.000
TO............................. 1214917.815 346914.857
BY STRAIGHT LINE TO............ 1213303.815 346384.857
20
4. Pending further order of the Court or agreement of the parties, leases of lands lying partly within the area above described and partly landward of that area shall be in no way affected by anything contained in this decree, and revenues derived from such leases shall remain subject to impoundment under the Interim Agreement of October 12, 1956, as amended, in the same manner as heretofore.
21
5. The Court retains jurisdiction to entertain such further proceedings, enter such orders and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to its previous orders or decrees herein or to this decree or to effectuate the rights of the parties in the premises.
| 910
|
404 U.S. 403
92 S.Ct. 577
30 L.Ed.2d 560
SECURITIES AND EXCHANGE COMMISSION, Petitioner,v.MEDICAL COMMITTEE FOR HUMAN RIGHTS.
No. 70—61.
Argued Nov. 10, 1971.
Decided Jan. 10, 1972.
Syllabus
The Court of Appeals, overruling the contentions of the Securities and Exchange Commission (SEC), held that it had jurisdiction to review the SEC's 'extremely dubious' determination not to oppose the Dow Chemical Co.'s refusal of respondent shareholder's request to include its proposal for a corporate charter amendment in Dow's proxy statement. Thereafter Dow acquiesced in the request, and at its annual meeting less than 3% of the voting stockholders supported the respondent's proposal, as a result of which the company under an SEC rule may exclude the proposal from its proxy material for a three-year period. Held: Since it is extremely doubtful that at the end of that period respondent will resubmit the proposal and Dow will refuse it, the case is now moot. P. 405—407.
139 U.S.App.D.C. 226, 432 F.2d 659, vacated and remanded.
Sol. Gen. Erwin N. Griswold for petitioner.
Roberts B. Owen, Washington, D.C., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The Medical Committee for Human Rights acquired by gift five shares of stock in Dow Chemical Co. In March 1968, the Committee's national chairman wrote a letter to the company expressing concern over its policy with respect to the production and sale of napalm. The letter also requested that there be included in the company's proxy statement for 1968 a proposal to amend Dow's Certificate of Incorporation to prohibit the sale of napalm unless the purchaser gives reasonable assurance that the napalm will not be used against human beings. Dow replied that the proposal was too late for inclusion in the 1968 proxy statement and for discussion at that year's annual meeting, but that it would be reconsidered the following year.
2
In an exchange of letters with Dow in 1969, the Committee indicated its belief that it had a right under Rule 14a—8 of the Securities and Exchange Commission, 17 CFR § 240.14a—8 (1970) (promulgated pursuant to § 14(a) of the Securities Exchange Act of 1934, 48 Stat. 895, as amended, 15 U.S.C. § 78n(a)), to have its proposal included in the company's proxy statement for consideration by all shareholders. On February 7, 1969, Dow responded that it intended to omit the proposal (somewhat modified) from the 1969 statement under the authority of subsections of the SEC Rule relied on by the Committee that permitted omission of shareholder proposals under two sets of circumstances:
3
§ 240.14a—8(c)(2)—'If it clearly appears that the proposal is submitted by the security holder primarily for the purpose of enforcing a personal claim or redressing a personal grievance against the issuer or its management, or primarily for the purpose of promoting general economic, political, racial, religious, social or similar causes'; or § 240.14a—8(c)(5)—'if the proposal consists of a recommendation or request that the management take action with respect to a matter relating to the conduct of the ordinary business operations of the issuer.'
4
The Committee requested that Dow's decision be reviewed by the staff of the SEC. On February 18, 1969, the Chief Counsel for the Division of Corporation Finance wrote both Dow and the Committee to inform them that 'this Division will not recommend any action to the Commission if this proposal is omitted from the management's proxy material.' App. 21. The SEC Commissioners granted a request by the Committee that they review the Division's decision and affirmed it. App. 43. The Committee then sought and obtained review of the Commission's decision in the United States Court of Appeals for the District of Columbia Circuit.
5
On July 8, 1970, the Court of Appeals held that the decision of the SEC was reviewable under § 25(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78y(a); that while review of Dow's decision was clearly available in district court, review of the SEC's decision could also be obtained in a court of appeals; that the validity of the Commission's determination was extremely dubious, especially in light of its failure to state reasons supporting its conclusion; and that the case should be remanded to the Commission for reconsideration and a statement of reasons. 139 U.S.App.D.C. 226, 432 F.2d 659. The Commission petitioned for review here, and we granted certiorari on March 22, 1971. 401 U.S. 973, 91 S.Ct. 1191, 28 L.Ed.2d 322.
6
Events have taken place, subsequent to the decision by the court below, and some subsequent to our decision to grant certiorari, that require that we dismiss this case on the ground that it has now become moot. In January 1971, the Medical Committee again submitted its napalm resolution for inclusion in Dow's 1971 proxy statement. This time Dow acquiesced in the Committee's request and included the proposal. At the annual stockholder's meeting in May 1971, Dow's shareholders voted on the Committee's proposal. Less than 3% of all voting shareholders supported it, and pursuant to Rule 14a 8(c)(4)(i), 17 CFR § 240.14a—8(c)(4)(i), Dow may exclude the same or substantially the same proposal from its proxy materials for the next three years. We find that this series of events has mooted the controversy.
7
Respondent argues that it will continue to urge the adoption of the proposal and its inclusion in proxy statements, and that it is likely that Dow will reject inclusion in the future as it has in the past. It is true that in permitting the proposal to be included in the 1971 proxy statement Dow stated that it adhered to its opinion that the proposal might properly be omitted and that its inclusion was without prejudice to future exclusion. However, this does not create the controversy that is necessary for us to retain jurisdiction to decide the merits. Whether or not the Committee will actually resubmit its proposal or a similar one in 1974 is purely a matter of conjecture at this point, as is whether or not Dow will accept it. If Dow were likely to repeat its allegedly illegal conduct, the case would not be moot. See Walling v. Helmerich & Payne, 323 U.S. 37, 43, 65 S.Ct. 11, 14, 89 L.Ed. 29 (1944); United States v. W. T. Grant Co., 345 U.S. 629, 632 633, 73 S.Ct. 894, 897—898, 97 L.Ed. 1303 (1953). However, in light of the meager support the proposal attracted, we can only speculate that Dow will continue to include the proposal when it again becomes eligible for inclusion, rather than to repeat this litigation. Thus, we find that 'the allegedly wrongful behavior could not reasonably be expected to recur.' United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968). The case is therefore moot.
8
'(I)t is well settled that federal courts may act only in the context of a justiciable case or controversy.' Benton v. Maryland, 395 U.S. 784, 788, 89 S.Ct. 2056, 2059, 23 L.Ed.2d 707 (1969). 'Our lack of jurisdiction to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.' Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S.Ct. 391, 394, 11 L.Ed.2d 347 (1964); cf. Doremus v. Board of Education, 342 U.S. 429, 434, 72 S.Ct. 394, 397, 96 L.Ed. 475 (1952).
9
Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded to that court for dismissal.
10
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
11
Mr. Justice DOUGLAS, dissenting.
12
With all respect, I must dissent from the judgment of the Court that this case has become moot because the Dow Chemical Co. acquiesced in the decision of the Court of Appeals below. The underlying dispute in this case is essentially a private one, between Dow and the Medical Committee for Human Rights, though it has large public overtones. In 1969, Dow refused to submit to its shareholders the Medical Committee's proposal that Dow amend its corporate charter to forbid the manufacture of napalm. Dow refused again in 1970. Only in 1971, after the decision of the Court of Appeals now under review, did Dow permit such a proposal to be submitted for a vote. In doing so, however, Dow resolutely affirmed its right to reject the proposal at any future time.
13
This gratuitous conduct did not, in my view, moot the controversy. 'Mere voluntary cessation of allegedly illegal conduct does not moot a case.' United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344. If it could, then a defendant would always be 'free to return to his old ways.' United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303.1
14
But it is said that because of the poor showing made by the proposal when finally submitted, Dow could refuse to resubmit it for three years under SEC proxy rules not at issue in this case. Ante, at 406. The Court suggests that it is 'purely a matter of conjecture' that the proposal will again be submitted at the expiration of this period, and that Dow will attempt again to reject it. The Court seems to think that Dow's best strategy, given the proposal's poor showing, is to let it go to a vote, rather than undertake protracted litigation. Ibid.
15
This assumption, however, is not only baseless, it is irrelevant. In Grant, supra, an antitrust violation was charged because of an interlocking directorate. In response to the suits, the interlocking directors resigned, and defendant companies represented to the court their intention not to revive the interlock. We disposed of this argument in summary fashion. 'Such a profession does not suffice to make a case moot.' Id., at 633, 73 S.Ct., at 897. Here, Dow has not even made the minimal representation we rejected in Grant, nor is it likely to do so.
16
This is not a controversy that could not arise again for decades, Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113, or a controversy whose decision could have no possible future effect on the parties, Atherton Mills v. Johnston, 259 U.S. 13, 42 S.Ct. 422, 66 L.Ed. 814. Dow has for the past four years fought tooth and nail its obligation to include this shareholder proposal. While '(a) case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,' Concentrated Phosphate Export Assn., supra, 393 U.S., at 203, 89 S.Ct., at 364, that is hardly the situation here.
17
While this litigation is not formally between Dow and the Medical Committee, but between the SEC and the Medical Committee, it does involve a whole panoply of substantive2 and procedural3 rights in connection with a corporation's obligation to include shareholder proposals in proxy materials. The modern super-corporations, of which Dow is one, wield immense, virtually unchecked, power. Some say4 that they are 'private governments,' whose decisions affect the lives of us all.5 The philosophy of our times, I think, requires that such enterprises be held to a higher standard than that of the 'morals of the market-place' which exalts a single-minded, myopic determination to maximize profits as the traditional be-all and end-all of corporate concern. The 'public interest in having the legality of the practices settled, militates against a mootness conclusion.' Grant, supra, 345 U.S., at 632, 73 S.Ct., at 897.
18
There is no reason to assume Dow's antipathy to the inclusion of this shareholder proposal will be any less in 1974 than it is today. Perhaps Dow will adopt the advice given to it by the Court. But it is just as likely to decide its superior financial position makes continued litigation the preferable alternative, which may now be conducted under proxy rules more favorable to corporate management6 than are the present rules.
19
This case now joins a growing list of monuments to the present Court's abdication of its constitutional responsibility to decide cases properly within its jurisdiction. See, e.g., Picard v. Connor, 404 U.S. 270, at 278, 92 S.Ct. 509, at 513, 30 L.Ed.2d 438 (Douglas, J., dissenting); North Carolina v. Rice, 404 U.S. 244, at 248, 92 S.Ct. 402, at 405, 30 L.Ed.2d 413 (Douglas, J., dissenting statement); McClanahan v. Morauer & Hartzell, Inc., 404 U.S. 16, at 17, 92 S.Ct. 170, at 171, 30 L.Ed.2d 136 (Douglas, J., dissenting). Once again, I dissent.
1
See also Walling v. Helmerich & Payne, 323 U.S. 37, 65 S.Ct. 11, 89 L.Ed. 29, where we held that a case involving the legality of 'split-day contracts' under the Fair Labor Standards Act was not rendered moot by the defendant company's abandonment of the contracts during the litigation. 'Despite respondent's voluntary cessation of the challenged conduct, a controversy between the parties over the legality of the split-day plan still remains. . . . Respondent has consistently urged the validity of the split-day plan and would presumably be free to resume the use of this illegal plan were not some effective restraint made.' Id., at 43, 65 S.Ct., at 14.
The vitality of this controversy was recognized by the Solicitor General, himself, virtually to the moment of oral argument. While he has abruptly reversed his position, the force of his prior argument remains undiminished. Citing the above quotation from Walling, he said:
'The same reasoning (as that of the Walling Court) applies to the dispute between respondent and Dow over whether the latter is required to distribute to its shareholders the Committee's proposal. Dow continues to insist that it is not required to distribute the proposal, and even if it does so this year (1971) and the proposal is defeated, Dow may reject it in future years.' First Reply Brief for Petitioner 5.
2
See generally Note, 84 Harv.L.Rev. 700 (1971).
3
See generally Note, 84 Harv.L.Rev. 835 (1971).
4
See, e.g., Miller, Toward the 'Techno-Corporate' State?—An Essay in American Constitutionalism, 14 Vill.L.Rev. 1 (1968); J. Galbraith, The New Industrial State (1967); A. Berle, Economic Power and the Free Society (1957).
5
A. Berle has suggested, for example, that
'The recession of 1956 was in part due to the fact that the three principal automobile manufacturers, General Motors, Ford, and Chrysler, sold 8 million cars in the previous year. The National City Bank Economic Review estimated the 'normal' market for cars at the time at 6 million. The following year the motorcar companies sold only 4 million cars, and, naturally, purchased far less from their suppliers of raw materials, glass, et cetera. The effect on employment was severe.' The Three Faces of Power 31 n. 2 (1967).
6
In this regard, it should be noted that the SEC has recently proposed amendments to its proxy rules which might strengthen Dow's hand. The new rules would permit a company to refuse to submit for a shareholder vote any proposal which, inter alia,
'(ii) consists of a recommendation, request or mandate that action be taken with respect to any matter, including a general economic, political, racial, religious, social or similar cause, that is not significantly related to the business of the issuer or is not within the control of the issuer.' Proposed amendment to Rule 14a—8(c)(2), Securities Exchange Act Release No. 9432, Dec. 22, 1971.
There is substantial sentiment, however, for a more liberal approach to shareholder proxy proposals than is evidenced by the current, much less the proposed, rules. Senator Muskie, for example, introduced a bill in the last Congress, entitled the 'Corporate Participation Act,' which would have, inter alia, barred exclusion of a shareholder proposal 'on the ground that such proposal may involve economic, political, racial, religious, or similar issues, unless the matter or action proposed is not within the control of the issuer.' S. 4003, § 2, 91st Cong., 2d Sess. For the view that a corporation should be required to include any shareholder proposal which is a 'proper subject' for shareholder action under applicable state law, see Chisum, Napalm, Proxy Proposals and the SEC, 12 Ariz.L.Rev. 463 (1970). See also Note, 84 Harv.L.Rev. 700 (1971).
| 89
|
404 U.S. 412
92 S.Ct. 574
30 L.Ed.2d 567
Florence DIFFENDERFER and Nishan Paul, Appellants,v.CENTRAL BAPTIST CHURCH OF MIAMI, FLORIDA, INC., et al.
No. 70—47.
Argued Dec. 6, 1971.
Decided Jan. 10, 1972.
Leo Pfeffer, New York City, for appellant Florence diffenderfer.
Howard J. Hollander, Miami, Fla., for appellant Nishan Paul.
Charles M. Whelan, New York City, for appellees.
PER CURIAM.
1
This is an action for a declaratory judgment that Florida Stat. § 192.06(4) (1967), F.S.A. violates the First Amendment to the Constitution of the United States insofar as it authorizes a tax exemption for church property used, inter alia, as a commercial parking lot, and for an injunction requiring appropriate state and local officials to assess and collect taxes against such property. It is brought by citizens and taxpayers of Dade County, Florida, where the property in question is located. The crux of their complaint is that state aid in the form of a tax exemption for church property used primarily for commercial purposes amounts not only to an establishment of the one religion aided, but also to an inhibition on the free exercise of other religions. A three-judge District Court, convened pursuant to 28 U.S.C. §§ 2281, 2284, upheld the validity of the statute as applied to the property involved herein, 316 F.Supp. 1116 (1970), and plaintiffs appealed to this Court. 28 U.S.C. § 1253. We noted probable jurisdiction on March 1, 1971. 401 U.S. 934, 91 S.Ct. 927, 28 L.Ed.2d 214.
2
The Central Baptist Church of Miami, Florida, Inc., is the owner of nearly a full square block of land in downtown Miami which is occupied by church buildings and an offstreet parking lot. The parking facilities are utilized by numerous persons pursuing a variety of church activities. These facilities are also used as a commercial parking lot every day except Sunday. At the time this suit was instituted and decided in the District Court, Fla.Stat. § 192.06(4) provided for exemption from taxation of:
3
'All houses of public worship and lots on which they are situated, and all pews or steps and furniture therein, every parsonage and all burying grounds not owned or held by individuals or corporations for speculative purposes, tombs and right of burial . . ..'
4
Prior to the decision of the District Court, the Florida Supreme Court had held, in a case involving the same property as is involved here, that church parking lots retain their full tax exemption under state law even though they may be used for commercial as well as church purposes. Central Baptist Church v. Dade County, Fla., 216 So.2d 4 (1968). This led to the constitutional challenge in the District Court.
5
At its 1971 Regular Session, the Florida Legislature repealed § 196.191 (the 1969 successor to § 192.06) and enacted new legislation, approved June 15, 1971, effective December 31, 1971, which provides, in relevant part, that church property is exempt from taxation only if the property is used predominantly for religious purposes and only 'to the extent of the ratio that such predominant use bears to the non-exempt use.' Fla.Stat. § 196.192(2), F.S.A.
6
We must review the judgment of the District Court in light of Florida law as it now stands, not as it stood when the judgment below was entered. Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 201, 24 L.Ed.2d 214 (1969); United States v. Alabama, 362 U.S. 602, 604, 80 S.Ct. 924, 926, 4 L.Ed.2d 982 (1960); cf. Thorpe v. Housing Authority, 393 U.S. 268, 281—282, 89 S.Ct. 518, 525—526, 21 L.Ed.2d 474 (1969); Hines v. Davidowitz, 312 U.S. 52, 60, 61 S.Ct. 399, 400, 85 L.Ed. 581 (1941). It is clear that the church parking lot that was the subject of the taxpayers' complaint is no longer fully exempt from taxation. If, in fact, it can be demonstrated that the lot is predominantly used for nonreligious purposes, it will receive no exemption whatever. 'The case has therefore lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law.' Hall v. Beals, supra, 396 U.S. at 48, 90 S.Ct. at 201.
7
This is not a case that is 'capable of repetition, yet evading review,' Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), nor is it the kind of case that may produce irreparable injury if not decided immediately, see, e.g., Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963). The only relief sought in the complaint was a declaratory judgment that the now repealed Fla.Stat. § 192.06(4) is unconstitutional as applied to a church parking lot used for commercial purposes and an injunction against its application to said lot. This relief is, of course, inappropriate now that the statute has been repealed.
8
Because it is possible that appellants may wish to amend their complaint so as to demonstrate that the repealed statute retains some continuing force or to attack the newly enacted legislation, rather than remanding the case to the District Court for dismissal as is our usual practice when a case has become moot pending a decision by this Court, United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36 and n. 2 (1950), we vacate the judgment of the District Court and remand the case to the District Court with leave to the appellants to amend their pleadings. Bryan v. Austin, 354 U.S. 933, 77 S.Ct. 1396, 1 L.Ed.2d 1527 (1957).
9
Judgment will be entered accordingly.
10
Judgment vacated and case remanded.
11
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
12
Mr. Justice DOUGLAS, dissenting.
13
The extent to which a State may constitutionally authorize a tax exemption for church-owned property used primarily for commercial purposes is a question of substantial national importance, and is squarely presented by appellants' challenge to Fla.Stat. § 192.06(4), F.S.A. in this case. The Court says, however, that the controversy over the exemption awarded appellee church is moot, appellants having asked only for declaratory relief as to the unconstitutionality of § 192.06(4), which section was replaced by new legislation, effective December 31, 1971, that substantially narrowed the authorized exemption. Fla.Stat. § 196.192, F.S.A.
14
I am not as eager as is the Court to hold moot a case on appeal which is justiciable in every respect save for an intervening change in the underlying law. It does not necessarily follow that there is no longer a live controversy between these parties, even if we assume, arguendo, that the new statute satisfies all of appellants' constitutional objections to the old one. Here, appellants argue that should their appeal prevail, the church will be liable for three years' back property taxes, pursuant to Fla.Stat. § 193.23, now § 193.092, F.S.A.1 If this is so, the controversy would appear vital despite the repeal of § 192.06(4). Cf. Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491; Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235. See also Note, 83 Harv.L.Rev. 1672 (1970).
15
Appellees contest this interpretation of state tax law, arguing from state court decisions that state or local taxing authorities would be estopped from asserting appellee church's liability for back taxes.2 Neither side, however, can point to a definitive interpretation of the precise point of state law at issue.
16
In my view, this situation lends itself to the Florida procedures by which this Court and other federal appellate courts may certify unresolved questions of Florida law to the State Supreme Court for decision.3 If a declaration that § 192.06(4) was unconstitutional would result in tax liability to appellee church, then this case is surely not moot. We have the opportunity to ask the Florida Supreme Court for a definitive answer to this question. I would take advantage of it.
1
Fla.Stat. § 193.092 reads, in pertinent part:
'(1) When it shall appear that an ad valorem tax might have been lawfully assessed or collected upon any property in the state, but that such tax was not lawfully assessed or levied, and has not been collected for any year within a period of three years next preceding the year in which it is ascertained that such tax has not been assessed, or levied, or collected, then the officers authorized shall make the assessment of taxes upon such property in addition to the assessment of such property for the current year . . ..'
2
See, e.g., City of Naples v. Conboy, 182 So.2d 412 (Fla.1965); Coppock v. Blount, 145 So.2d 279 (Fla.App.1962). Appellants, however, construe these cases to hold that back taxation may be estopped on equitable principles only when there are 'special circumstances' involved. Appellants contend that the present situation involves no such 'special circumstances' that would justify an estoppel under these cases.
3
Certification is authorized by Fla.Stat. § 25.031 (1969), F.S.A.:
'The supreme court of this state may, by rule of court, provide that, when it shall appear to the supreme court of the United States, to any circuit court of appeals of the United States, or to the court of appeals of the District of Columbia, that there are involved in any proceeding before it questions or propositions of the laws of this state, which are determinative of the said cause, and there are no clear controlling precedents in the decisions of the supreme court of this state, such federal appellate court may certify such questions or propositions of the laws of this state to the supreme court of this state for instructions concerning such questions or propositions of state law, which certificate the supreme court of this state, by written opinion, may answer.'
The implementing rule is Fla.App.Rule 4.61, 32 F.S.A. We have used this statute before, noting that it demonstrates 'rare foresight' on the part of the Florida Legislature. Clay v. Sun Ins. Office, 363 U.S. 207, 212, 80 S.Ct. 1222, 1225, 4 L.Ed.2d 1170.
| 89
|
404 U.S. 418
92 S.Ct. 596
30 L.Ed.2d 575
RELIANCE ELECTRIC COMPANY, Petitioner,v.EMERSON ELECTRIC COMPANY.
No. 70—79.
Argued Nov. 10, 11, 1971.
Decided Jan. 11, 1972.
Rehearing Denied Feb. 28, 1972.
See 405 U.S. 969, 92 S.Ct. 1162.
Syllabus
Respondent, the owner of more than 10% of Dodge Mfg. Co.'s stock, within six months of the purchase thereof sold enough shares to a broker to reduce its holding to 9.96%, for the purpose of immunizing the disposal of the remainder from liability under § 16(b) of the Securities Exchange Act of 1934. Under that provision a corporation may recover for itself the profits realized by an owner of more than 10% of its shares from a purchase and sale of its stock within any six-month period, provided the owner held more than 10% 'both at the time of purchase and sale.' Held: Under the terms of § 16(b) respondent is not liable to petitioner (Dodge's successor) for profits derived from the sale of the 9.96% to Dodge within six months of purchase. Pp. 422—427.
434 F.2d 918, affirmed.
Thomas P. Mulliganm, Cleveland, Ohio, for petitioner.
Walter P. North, Washington, D.C., for Securities and Exchange Commission, as amicus curiae, by special leave of Court.
Albert E. Jenner, Jr., Chicago, Ill., for respondent.
1
Thomas P. Mulligan, Cleveland, Ohio, opinion of the Court.
2
Section 16(b) of the Securities Exchange Act of 1934, 48 Stat. 896, 15 U.S.C. § 78p(b), provides, among other things, that a corporation may recover for itself the profits realized by an owner of more than 10% of its shares from a purchase and sale of its stock within any six-month period, provided that the owner held more than 10% 'both at the time of the purchase and sale.'1 In this case, the respondent, the owner of 13.2% of a corporation's shares, disposed of its entire holdings in two sales, both of them within six months of purchase. The first sale reduced the respondent's holdings to 9.96%, and the second disposed of the remainder. The question presented is whether the profits derived from the second sale are recoverable by the Corporation under § 16(b). We hold that they are not.
3
* On June 16, 1967, the respondent, Emerson Electric Co., acquired 13.2% of the outstanding common stock of Dodge Manufacturing Co., pursuant to a tender offer made in an unsuccessful attempt to take over Dodge. The purchase price for this stock was $63 per share. Shortly thereafter, the shareholders of Dodge approved a merger with the petitioner, Reliance Electric Co. Faced with the certain failure of any further attempt to take over Dodge, and with the prospect of being forced to exchange its Dodge shares for stock in the merged corporation in the near future,2 Emerson, following a plan outlined by its general counsel, decided to dispose of enough shares to bring its holdings below 10%, in order to immunize the disposal of the remainder of its shares from liability under § 16(b). Pursuant to counsel's recommendation, Emerson on August 28 sold 37,000 shares of Dodge common stock to a brokerage house at $68 per share. This sale reduced Emerson's holdings in Dodge to 9.96% of the outstanding common stock. The remaining shares were then sold to Dodge at $69 per share on September 11.
4
After a demand on it by Reliance for the profits realized on both sales, Emerson filed this action seeking a declaratory judgment as to its liability under § 16(b). Emerson first claimed that it was not liable at all, because it was not a 10% owner at the time of the purchase of the Dodge shares. The District Court disagreed, holding that a purchase of stock falls within § 16(b) where the purchaser becomes a 10% owner by virtue of the purchase. The Court of Appeals affirmed this holding, and Emerson did not cross-petition for certiorari. Thus that question is not before us.
5
Emerson alternatively argued to the District Court that, assuming it was a 10% stockholder at the time of the purchase, it was liable only for the profits on the August 28 sale of 37,000 shares, because after that time it was no longer a 10% owner within the meaning of § 16(b). After trial on the issue of liability alone, the District Court held Emerson liable for the entire amount of its profits. The court found that Emerson's sales of Dodge stock were 'effected pursuant to a single predetermined plan of disposition with the overall intent and purpose of avoiding Section 16(b) liability,' and construed the term 'time of . . . sale' to include 'the entire period during which a series of related transactions take place pursuant to a plan by which a 10% beneficial owner disposes of his stock, holdings.' 306 F.Supp. 588, 592.
6
On an interlocutory appeal under 28 U.S.C. § 1292(b), the Court of Appeals upheld the finding that Emerson 'split' its sale of Dodge stock simply in order to avoid most of its potential liability under § 16(b), but it held this fact irrelevant under the statute so long as the two sales are 'not legally tied to each other and (are) made at different times to different buyers . . ..' 434 F.2d 918, 926. Accordingly, the Court of Appeals reversed the District Court's judgment as to Emerson's liability for its profits on the September 11 sale, and remanded for a determination of the amount of Emerson's liability on the August 28 sale. Reliance filed a petition for certiorari, which we granted in order to consider an unresolved question under an important federal statute. 401 U.S. 1008, 91 S.Ct. 1257, 28 L.Ed.2d 544.
II
7
The history and purpose of § 16(b) have been exhaustively reviewed by federal courts on several occasions since its enactment in 1934. See, e.g., Smolowe v. Delendo Corp., 136 F.2d 231; Adler v. Klawans, 267 F.2d 840; Blau v. Max Factor & Co., 342 F.2d 304. Those courts have recognized that the only method Congress deemed effective to curb the evils of insider trading was a flat rule taking the profits out of a class of transactions in which the possibility of abuse was believed to be intolerably great. As one court observed:
8
'In order to achieve its goals, Congress chose a relatively arbitrary rule capable of easy administration. The objective standard of Section 16(b) imposes strict liability upon substantially all transactions occurring within the statutory time period, regardless of the intent of the insider or the existence of actual speculation. This approach maximized the ability of the rule to eradicate speculative abuses by reducing difficulties in proof. Such arbitrary and sweeping coverage was deemed necessary to insure the optimum prophylactic effect.' Bershad v. McDonough,428 F.2d 693, 696.
9
Thus Congress did not reach every transaction in which an investor actually relies on inside information. A person avoids liability if he does not meet the statutory definition of an 'insider,' or if he sells more than six months after purchase. Liability cannot be imposed simply because the investor structured his transaction with the intent of avoiding liability under § 16(b). The question is, rather, whether the method used to 'avoid' liability is one permitted by the statute.
10
Among the 'objective standards' contained in § 16(b) is the requirement that a 10% owner be such 'both at the time of the purchase and sale . . . of the security involved.' Read literally, this language clearly contemplates that a statutory insider might sell enough shares to bring his holdings below 10%, and later—but still within six months—sell additional shares free from liability under the statute. Indeed, commentators on the securities laws have recommended this exact procedure for a 10% owner who, like Emerson, wishes to dispose of his holdings within six months of their purchase.3
11
Under the approach urged by Reliance, and adopted by the District Court, the apparent immunity of profits derived from Emerson's second sale is lost where the two sales, though independent in every other respect, are 'interrelated parts of a single plan.' 306 F.Supp., at 592. But a 'plan' to sell that is conceived within six months of purchase clearly would not fall within § 16(b) if the sale were made after the six months had expired, and we see no basis in the statute for a different result where the 10% requirement is involved rather than the six-month limitation.
12
The dissenting opinion, post, at 442, reasons that 'the 10% rule is based upon a conclusive statutory presumption that ownership of this quantity of stock suffices to provide access to inside information,' and that it thus 'follows that all sales by a more-than-10% owner within the six-month period carry the presumption of a taint, even if a prior transaction within the period has reduced the beneficial ownership to 10% or below.' While there may be logic in this position, it was clearly rejected as a basis for liability when Congress included the proviso that a 10% owner must be such both at the time of the purchase and of the sale. Although the legislative history affords no explanation of the purpose of the proviso, it may be that Congress regarded one with a long-term investment of more than 10% as more likely to have access to inside information than one who moves in and out of the 10% category. But whatever the rationale of the proviso, it cannot be disregarded simply on the ground that it may be inconsistent with our assessment of the 'wholesome purpose' of the Act.
13
To be sure, where alternative constructions of the terms of § 16(b) are possible, those terms are to be given the construction that best serves the congressional purpose of curbing short-swing speculation by corporate insiders.4 But a construction of the term 'at the time of . . . sale' that treats two sales as one upon proof of a pre-existing intent by the seller is scarcely in harmony with the congressional design of predicating liability upon an 'objective measure of proof.' Smolowe v. Delendo Corp., supra, 136 F.2d, at 235. Were we to adopt the approach urged by Reliance, we could be sure that investors would not in the future provide such convenient proof of their intent as Emerson did in this case. If a 'two-step' sale of a 10% owner's holdings within six months of purchase is thought to give rise to the kind of evil that Congress sought to correct through § 16(b), those transactions can be more effectively deterred by an amendment to the statute that preserves its mechanical quality than by a judicial search for the will-o'-the-wisp of an investor's 'intent' in each litigated case.
III
14
The Securities and Exchange Commission, participating as amicus curiae, argues for an interpretation of the statute that both covers Emerson's transaction and preserves the mechanical quality of the statute. Seizing upon a fragment of legislative history—a brief exchange between one of the principal authors of the bill and two members of the Senate Committee during hearings on the bill5—the Commission suggests that the sole purpose of the requirement of 10% ownership at the time of both purchase and sale was to exclude from the statute's coverage those persons who became 10% shareholders 'involuntarily,' as, for example, by legal succession or by a reduction in the total number of outstanding shares of the corporation. The effect of such an interpretation would be to bring within § 16(b) all sales within six months by one who has gained the position of a 10% owner through voluntary purchase, regardless of the amount of his holdings at the time of the sale. We cannot accept such a construction of the Act.
15
In the first place, we note that the SEC's own rules undercut such an interpretation. Recognizing the interrelatedness of § 16(a) and § 16(b) of the Act, the Commission has used its power to grant exemptions under § 16(b) to exclude from liability any transaction that does not fall within the reporting requirements of § 16(a).6 A 10% owner is required by that section to report at the end of each month any changes in his holdings in the corporation during that month. The Commission has interpreted this provision to require a report only if the stockholder held more than 10% of the corporation's shares at some time during the month.7 Thus, a 10% owner who, like Emerson, sells down to 9.96% one month and disposes of the remainder the following month, would presumably be exempt from the reporting requirement and hence from § 16(b) under the SEC's own rules, without regard to whether he acquired the stock 'voluntarily.'
16
But the SEC's argument would fail even if it were not contradicted by the Commission's own previous construction of the Act. As we said in Blau v. Lehman, 368 U.S. 403, 411, 82 S.Ct. 451, 456, 7 L.Ed.2d 403, one 'may agree that . . . the Commission present(s) persuasive policy arguments that the Act should be broadened . . . to prevent 'the unfair use of information' more effectively than can be accomplished by leaving the Act so as to require forfeiture of profits only by those specifically designated by Congress to suffer those losses.' But we are not free to adopt a construction that not only strains, but flatly contradicts, the words of the statute.
17
The judgment is affirmed.
18
Affirmed.
19
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
20
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice WHITE concur, dissenting.
21
On June 16, 1967, Emerson Electric Co., in an attempt to wrest control from the incumbent management, acquired more than 10% of the outstanding common stock of Dodge Manufacturing Co. Dodge successfully resisted the take-over bid by means of a defensive merger with petitioner, Reliance Electric Co. Emerson then sold the shares it had accumulated, within six months of their purchase, for a profit exceeding $900,000.
22
Because this sale purportedly comprised two 'independent' transactions, the first of which reduced Emerson's holdings to 9.96% of the outstanding Dodge common stock, the Court today holds that the profit from the second transaction is beyond the contemplation of § 16(b) of the Securities Exchange Act.1 So Emerson need not account to the corporation for these gains. In my view, this result is a mutilation of the Act, contrary to its broad remedial purpose, inconsistent with the flexibility required in the interpretation of securities legislation, and not required by the language of the statute itself.
23
* Section 16(b) is a 'prophylactic' rule, Blau v. Lehman, 368 U.S. 403, 413, 82 S.Ct. 451, 556, 7 L.Ed.2d 403, whose wholesome purpose is to control the insiders whose access to confidential information gives them unfair advantage in the trading of their corporation's securities.2
24
The congressional investigations which led to the enactment of the Securities Exchange Act unearthed convincing evidence that disregard by corporate insiders of their fiduciary positions was widespread and pervasive.3 Indeed,
25
'the flagrant betrayal of their fiduciary duties by directors and officers of corporations who used their positions of trust and the confidential information which came to them in such positions, to aid them in their market activities,' was reported by the Senate subcommittee charged with the investigation to be '(a)mong the most vicious practices unearthed at the hearings.' S.Rep.No. 1455, 73d Cong., 2d Sess., 55 (1934). The subcommittee did not limit its attack to directors and officers.
26
'Closely allied to this type of abuse was the unscrupulous employment of inside information by large stockholders who, while not directors and officers, exercised sufficient control over the destinies of their companies to enable them to acquire and profit by information not available to others.' Ibid.
27
Despite its flagrantly inequitable character, the most respected pillars of the business and financial communities considered windfall profits from 'surething' speculation in their own company's stock to be one of the usual emoluments of their position. Cook & Feldman, Insider Trading Under the Securities Eschange Act, 66 Harv.L.Rev. 385, 386 (1953); 10 SEC Ann.Rep. 50 (1944). These abuses were perpetrated by such ostensibly reliable men and institutions as Richard Whitney, President of the New York Stock Exchange,4 Albert H. Wiggin and the Chase National Bank, of which he was the chief executive officer,5 and Charles E. Mitchell and the National City Bank, of which he was Chairman of the Board.6
28
Section 16(b) was drafted to combat these 'predatory operations,' S.Rep.No. 1455, supra, at 68, by removing all possibility of profit from those short-swing insider trades occurring within the statutory period of six months.7 The statute is written broadly, and the liability it imposes is strict. Profits are forfeit without proof of an insider's intent to gain from inside information, and without proof that the insider was even privy to such information.8 Feder v. Martin Marietta Corp., 406 F.2d 260, 262 (CA2).
II
29
Today, however, in the guise of an 'objective' approach, the Court undermines the statute. By the simple expedient of dividing what would ordinarily be a single transaction into two parts—both of which could be performed on the same day, so far as it appears from the Court's opinion—a more-than-10% owner may reap windfall profits on 10% of his corporation's outstanding stock. This result, "plainly at variance with the policy of the legislation as a whole," United States v. American Trucking Assns., 310 U.S. 534, 543, 60 S.Ct. 1059, 1064, 84 L.Ed. 1345, is said to be required because Emerson, owning only 9.96%, was not a 'beneficial owner' of more than 10% within the meaning of § 16(b) 'at the time of' the disposition of this block of Dodge stock.
30
If § 16(b) is to have the 'optimum prophylactic effect' which its architects intended, insiders must not be permitted so easily to circumvent its broad mandate. We should hold that there was only one sale—a plan of distribution conceived 'at the time' Emerson owned 13.2% of the Dodge stock, and implemented within six months of a matching purchase. Moreover, in the spirit of the Act we should presume that any such 'split-sale' by a more-than-10% owner was part of a single plan of disposition for purposes of § 16(b) liability.
31
This construction of 'the sequence of relevant transactions,' Bershad v. McDonough, 428 F.2d 693, 697 (CA7), is not foreclosed by any language in the statute. The statutory definitions of such terms as 'purchase,' 'sale,' 'beneficial owner,' 'insider,' and 'at the time of' are not, as one might infer from the Court's opinion, objectively defined words with precise meanings.
32
'Whatever the terms 'purchase' and 'sale' may mean in other contexts,' they should be construed in a manner which will effectuate the purposes of the specific section of the (Securities Exchange) Act in which they are used. SEC v. National Securities, Inc., 393 U.S. 453, 467, 89 S.Ct. 564, 572, 21 L.Ed.2d 668.' Id., at 696.
33
Mr. Justice Stewart, while on the Court of Appeals, explained the manner appropriate for the construction of the statutory definitions in the context of § 16(b):
34
'Every transaction which can reasonably be defined as a purchase will be so defined, if the transaction is of a kind which can possibly lend itself to the speculation encompassed by Section 16(b).' Ferraiolo v. Newman, 259 F.2d 342, 345 (CA6).
35
Applying this salutary approach toward the statutory definitions, the courts have reasoned that, because of the opportunities for abuse inhering in his position, a director must account both for purchases made shortly before his appointment, Adler v. Klawans, 267 F.2d 840 (CA2), and for sales made shortly after his resignation, Feder v. Martin Marietta Corp., supra, 'Options,' which played such a large role in the manipulative practices disclosed during the 1930's,9 are not ordinarily thought to be 'purchases' or 'sales' of the underlying commodity; yet, because of the opportunity for abuse inherent in the device, courts have held that an option can be a 'sale,' when granted, within the meaning of § 16(b). Bershad v. McDonough, supra. But, in order to bring the underlying transaction within the six-month limitation of § 16(b), an option was also held to be a 'purchase' when exercised. Booth v. Varian Associates, 334 F.2d 1 (CA1). Similarly, where there was an opportunity for the abuse of inside information, a conversion of debentures into common stock was held to be a 'sale'; Park & Tilford v. Schulte, 160 F.2d 984 (CA2); but where there was no such opportunity, a similar conversion was held not to be Blau v. Lamb, 363 F.2d 507 (CA2).
36
The common thread running through the decisions is that whether we approach the problem of this case as a question of 'beneficial ownership' at the time of the second transaction, or as a question whether the two transactions were one 'sale,' it 'is not in any event primarily a semantic one, but must be resolved in the light of the legislative purpose—to curb short swing speculation by insiders.' Ferraiolo v. Newman, supra, 259 F.2d, at 344.
37
Until today, the federal courts have been almost universally faithful to this philosophy, 'even departing where necessary from the literal statutory language.' Feder v. Martin Marietta Corp., supra, 406 F.2d, at 262. Thus, a tender offer, although it may justifiably be described as a series of discrete purchases, has been treated as a single purchase. Abrams v. Occidental Petroleum, 323 F.Supp. 570, 579 (SDNY), rev'd on other grounds, 450 F.2d 157 (CA2). And, in order to prevent a construction of the statute whereby
38
'it would be possible for a person to purchase a large block of stock, sell it out until his ownership was reduced to less than 10%, and then repeat the process, ad infinitum,'
39
the phrase 'at the time of the purchase and sale,' on which the Court places such heavy reliance, was defined to mean 'simultaneously with' purchase, and 'just prior to' sale. Stella v. Graham-Paige Motors, 104 F.Supp. 957, 959 (SDNY). As one commentator noted, this holding
40
'necessitates a logical inconsistency insofar as the phrase 'at the time of purchase and sale' is treated as meaning the moment after purchase and the moment before sale.' Recent Developments, 57 Col.L.Rev. 287, 289.
41
Yet, as in the present case, 'the discrepancy seems slight in view of the broader statutory policies involved.' Ibid.
42
Thus, should the broadly remedial statutory purpose of § 16(b) require it, the literal language of the statute would not preclude an analysis in which the two transactions herein at issue are treated as part of a single 'sale.'
III
43
The potential for abuse of inside information in the present case is self-evident. Equally obvious is the fact that the modern-day insider is no less prone than his counterpart of a generation ago to succumb to the lure of insider trading where windfall profits are in the offing. Indeed, in a survey of 'reputable' businessmen, 42% of those responding indicated they would themselves trade on inside information, and 61% believed that the 'average' executive would do likewise.10 Thus, it would appear both that § 16(b) was directed at such conduct as is herein at issue and that the protection § 16(b) affords is as necessary today as it was when the statute was enacted.
44
Despite the fact that the decision below strikes at the vitals of the statute, the Court says it must be affirmed because to treat 'two sales as one upon proof of a pre-existing intent by the seller' detracts from the 'mechanical quality' of the statute and is 'scarcely in harmony with the congressional design of predicating liability upon an 'objective measure of proof." Ante, at 425.
45
This 'mechanical quality,' however, is illusory.
46
'There is no rule so 'objective' ('automatic' would be a better word) that it does not require some mental effort in applying it on the part of the person or persons entrusted by law with its application.' Blau v. Lamb, supra, 363 F.2d, at 520.
47
Thus, the deterrent value of § 16(b) depends not so much on its vaunted 'objectivity' as on its 'thoroughgoing' qualities.
48
'We must suppose that the statute was intended to be thoroughgoing, to squeeze all possible profits out of stock transactions, and thus to establish a standard so high as to prevent any conflict between the selfish interest of a fiduciary officer, director, or stockholder and the faithful performance of his duty.' Smolowe v. Delendo Corp., 136 F.2d 231, 239 (CA2).
49
Insiders have come to recognize that 'in order not to defeat (§ 16(b)'s) avowed objective,' federal courts will resolve 'all doubts and ambiguities against insiders.' Blau v. Oppenheim, D.C., 250 F.Supp. 881, 884—885.
50
Moreover, courts have not shirked this responsibility simply because, as here, such a resolution may require a factual inquiry. In Blau v. Lehman, supra, this Court said that on an appropriate factual showing, an investment banking firm might be forced to disgorge profits made from short-swing trades in the stock of a corporation on whose board a partner of the firm was 'deputized' to sit. Id., 368 U.S., at 410, 82 S.Ct., at 455, 7 L.Ed.2d 403. In Colby v. Klune, 178 F.2d 872 (CA2), cited by the majority, the court permitted a factual inquiry into the possibility that an individual might be a 'de facto' officer or director, although not formally labeled as such. Virtually all courts faced with § 16(b) problems now inquire into the opportunity for abuse inherent in a particular type of transaction, in order to see if applying the statute would serve its purposes. See, e.g., Bershad v. McDonough, supra; Blau v. Max Factor & Co., 342 F.2d 304 (CA9); Booth v. Varian Associates, supra; Ferraiolo v. Newman, supra. And, even under the narrow approach of the majority, I presume it would still be open, in cases like this one, to inquire whether the ostensibly separate sales are 'legally tied'.11 It follows that the necessity of a factual inquiry is no bar to the application of the statute to the present case.
51
It is beyond question, of course, that a prime concern of the statute was that a requirement of positive proof of an insider's 'intent' would render the statute ineffective. Insofar as the District Court's approach appears to place the burden on the plaintiff to demonstrate the existence of a 'plan of distribution,' it is justifiably open to criticism. The broad sweep of § 16(b) requires that a minimal burden be placed on putative plaintiffs.
52
But this goal—elimination of proof problems—is subsidiary to the statute's main aim—curbing insider speculation. Whatever 'mechanical quality' the statute possesses, it was intended to ease the plaintiff's burden, not to insulate the insider's profits.
53
Thus, we should not conclude, as does the majority, that there is no enforceable way to combat the potential for sharp practices which inheres in the 'splitsale' scheme.
54
'(T)he 'objective' or 'rule of thumb' approach need not compel a court to wink at the substantial effects of a transaction which is rife with potential sharp practices in order to preserve the easy application of the short-swing provisions under Section 16(b). Certainly the interest of simple application of the prohibitions of Section 16(b) does not carry so far as to facilitate evasion of that provision's function by formalistic devices.' Bershad v. McDonough, supra, 428 F.2d, at 697 n. 5.
55
A series of sales, spaced close together, is more than likely part of a single plan of disposition. Plain common sense would indicate that Emerson's conduct in the present case had probably been planned, even if there were no confirmation in the form of an admission. It is statistically probable that any series of sales made by a benefical owner of more than 10%, within six months, in which he disposes of a major part of his holdings, would be similarly connected.
56
We, therefore, should construe the statute as allowing a rebuttable presumption that any such series of dispositive transactions will be deemed to be part of a single plan of disposition, and will be treated as a single 'sale' for the purposes of § 16(b).12 Because the burden would be on the defendant, not the plaintiff, such a rule would operate with virtually the same less-than-perfectly automatic efficiency that the statute now does, and it would comport far more closely with the statute's broad, remedial sweep than does the approach taken by the Court.
57
Such a rule would not, moreover, import questions of 'intent' into the statutory scheme. Any factual inquiry would involve only on objective analysis of the circumstances of the various dispositions in the series, applying the 'various tests' established by the cases 'to determine whether a transaction, objectively defined, falls within or without the terms of the statute.' Ante, at 424, n. 4.
58
Only if a beneficial owner carried an affirmative burden of proof—that his series of dispositive transactions was not of a type that afforded him an opportunity for speculative abuse of his position as an insider—should we say that he was not such a beneficial owner 'at the time of . . . sale.'13
IV
59
The Court suggests two additional factors militating against Emerson's liability under § 16(b). First, the Court implies that it is contrary to the SEC's own rules. This argument rests on the power given to the SEC by § 16(b) to exempt from its scope those transactions that are 'not comprehended within the purpose' of the section. Pursuant to this authority, the SEC has promulgated Rule 16a—10, providing that transactions not required to be reported under § 16(a) are exempt from § 16(b) as well.
60
The SEC's reporting requirements are contained in 'Form 4.' Until recently, this Form required insiders—officers, directors, and more-than-10% owners—only to report transactions occurring in a calendar month in which they met the formal requirements to be denominated such an insider. Emerson sold down to 9.96% in August, then sold out in September. Presumably, it did not have to report the September sale on Form 4, and thus, by operation of Rule 16a 10, the September sale is argued to be exempt from the operations of § 16(b) as well.
61
Inasmuch as the SEC's power to promulgate such a rule is not 'a matter solely within the expertise of the SEC and therefore beyond the scope of judicial review,' Greene v. Dietz, 247 F.2d 689, 692 (CA2), this argument loses substantially all its force after Feder v. Martin Marietta Corp., supra. There, the court held, in the face of the identical argument that Rule 16a—10 was invalid, insofar as it operated through Form 4 to exempt transactions by ex-directors from liability under § 16(b). The court reasoned that the limitation of the reporting requirement to the calendar month in which a transaction occurred was 'an arbitrary . . . (and) unnecessary loophole in the effective operation of the statutory scheme,' id., 406 F.2d, at 269, because it required reporting of some transactions 30 days after an ex-director's resignation, but insulated others taking place the very next day.
62
Form 4 did, however, extend § 16(b) liability to at least some transactions occurring after resignation.
63
'Therefore, inasmuch as Form 4, a valid exercise of the SEC's power, has already extended § 16(b) to cover, in part, an ex-director's activities, a less arbitrarily defined reporting requirement for ex-directors is but a logical extension of § 16(b) coverage, would be a coverage in line with the congressional aims, and would afford greater assurance that the lawmakers' intent will be effectuated.' Ibid.14
64
This analysis is equally applicable to the reporting requirements of ex-10% owners.
65
Second, the Court analogizes Emerson's 'plan' to a sale 'conceived' during the six-month period but not made until after the expiration of the statutory limitation. The Court incorrectly assumes that such a sale could not fall within § 16(b). If the 'conception' were sufficiently concrete to be construed as a 'contract to sell,' or an 'option,' there would indeed be liability. Cf. Bershad v. McDonough, supra. In any event, the analogy fails because the purposes of the six-month rule are different from the purpose of the 10% rule.
66
The six-month limitation is based on Congress' estimation that beyond this time period, normal market fluctuations sufficiently deter attempts to trade on inside information. Blau v. Max Factor, & Co., supra, 342 F.2d, at 308. Thus, it is consistent with the statutory scheme to permit an insider to 'plan' a sale within the six-month period that will not take place until six months have passed from a matching purchase.
67
But the 10% rule is based upon a conclusive statutory presumption that ownership of this quantity of stock suffices to provide access to inside information. Newmark v. RKO General, Inc., 425 F.2d 348 (CA2). The rationale of the six-month rule implies that such information will be presumed to be useful during that length of time. It follows that all sales by a more-than-10% owner within the six-month period carry the presumption of a taint, even if a prior transaction within the period has reduced the beneficial ownership to 10% or below.
V
68
In sum, neither the statutory language nor the purposes articulated by the majority justify the result reached today. Rather than deprive § 16(b) of vitality in the course of a vain search for a nonexistent purity of operation, we should reverse the judgment of the Court of Appeals and remand the case for further proceedings.
1
Section 16(b) provides:
'For the purpose of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) within any period of less than six months . . . shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security purchased or of not repurchasing the security sold for a period exceeding six months . . . This subsection shall not be construed to cover any transaction where such beneficial owner was not such both at the time of the purchase and sale, or the sale and purchase, of the security involved, or any transaction or transactions which the Commission by rules and regulations may exempt as not comprehended within the purpose of this subsection.' 15 U.S.C. § 78p(b).
The term 'such beneficial owner' refers to one who owns 'more than 10 per centum of any class of any equity security (other than an exempted security) which is registered pursuant to section (12) of this title.' Securities Exchange Act of 1934, § 16(a), 15 U.S.C. § 78p(a).
2
The Court of Appeals for the Second Circuit has held that an exchange of shares in one corporation for those of another pursuant to a merger agreement constitutes a 'sale' within the meaning of § 16(b). Newmark v. RKO General, Inc., 425 F.2d 348, 354.
3
'(A) person who owns 15 percent and wants to sell down to 5 percent should sell 5-plus percent in one transaction and then, after he becomes a holder of slightly less than 10 percent, sell out the remainder.' 2 L. Loss, Securities Regulation 1060 (2d ed. 1961).
'(T)he intention of the language was to exclude the second sale in a case where 10% is purchased, 5% sold within three months and the remaining 5% a month later. This latter construction of the Act is, it is believed, the only safe one to rely upon.' Seligman, Problems Under the Securities Exchange Act, 21 Va.L.Rev. 1, 20 (1934).
4
See, e.g., Adler v. Klawans, 267 F.2d 840 (one who is a director at the time of sale need not also have been a director at the time of purchase). In interpreting the terms 'purchase' and 'sale,' courts have properly asked whether the particular type of transaction involved is one that gives rise to speculative abuse. See, e.g., Bershad v. McDonough, 428 F.2d 693 (granting of an option to purchase constitutes a 'sale'). And in deciding whether an investor is an 'officer' or 'director' within the meaning of § 16(b), courts have allowed proof that the investor performed the functions of an officer or director even though not formally denominated as such. Colby v. Klune, 178 F.2d 872, 873; cf. Feder v. Martin Marietta Corp., 406 F.2d 260, 262—263. The various tests employed in these cases are used to determine whether a transaction, objectively defined, falls within or without the terms of the statute. In no case is liability predicated upon 'considerations of intent, lack of motive, or improper conduct' that are irrelevant in § 16(b) suits. Blau v. Oppenheim, 250 F.Supp. 881, 887.
5
That exchange was as follows:
'Senator Carey. Suppose this stock passed to an estate, and the estate had to raise money?
'Mr. Corcoran. I do not think, in that case, sir, the statute would apply.
'Senator Kean. Why not?
'Senator Carey. The estate is the beneficiary.
'Mr. Corcoran. I do not believe it would. Certainly the intention was that it should not apply to that sort of a situation.' Hearings on Stock Exchange Practices before the Senate Committee on Banking and Currency pursuant to S.Res. 84, 56, and 97, 73d Cong., 1st and 2d Sess., pt. 15, p. 6558. It was sometime after this exchange that the bill was revised to add the exemptive provision.
6
SEC Rule 16a—10, 17 C.F.R. § 240.16a—10.
7
Form 4 Securities Exchange Act Release No. 6487 (Mar. 9, 1961).
1
15 U.S.C. § 78p(b):
'For the purpose of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) within any period of less than six months, unless such security was acquired in good faith in connection with a debt previously contracted, shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security purchased or of not repurchasing the security sold for a period exceeding six months. Suit to recover such profit may be instituted at law or in equity in any court of competent jurisdiction by the issuer, or by the owner of any security of the issuer in the name and in behalf of the issuer if the issuer shall fail or refuse to bring such suit within sixty days after request or shall fail diligently to prosecute the same thereafter; but no such suit shall be brought more than two years after the date such profit was realized. This subsection shall not be construed to cover any transaction where such beneficial owner was not such both at the time of the purchase and sale, or the sale and purchase, of the security involved, or any transaction or transactions which the Commission by rules and regulations may exempt as not comprehended within the purpose of this subsection.'
2
'Next comes the everlasting problem of protecting the fellow on the outside from the insider . . . That is, the problem of protecting the stockholder—and every fellow who buys into the market is a stockholder—who does not know as much about the company as the fellow on the inside. . . . (T) he poor little fellow does not know what he is getting into, and it is just as important in preventing unwarranted and destructive speculation, to have the fellow on the outside protected from the fellow on the inside who is an officer or director of the corporation or a pool with inside information, as it is not to let the little fellow buy too much stock by setting the margins too low.' Hearings on H.R. 7852 and H.R. 8720 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 82 (1934) (testimony of Thomas Corcoran).
3
One particularly glaring example concerned two brothers whose ownership of a little over 10% of a company's stock gave them a controlling interest. Just before the company voted to omit a dividend the brothers disposed of their holdings for about $16,000,000. When news of the dividend omission became public a short time later, they repurchased an equivalent amount of stock for about $7,000,000, showing a profit of some $9,000,000 on the short-swing deal. S.Rep.No.792, 73d Cong., 2d Sess., 9 (1934).
Much of the insider abuse involved participation in so-called 'pools,' which were dummy accounts in a corporation's stock established to buy and sell, at the same time, and at a frenetic pace. By so churning the account, it was often possible to engineer a false impression of immense activity in the stock, and to arrange spectacular, but artificial, price rises. One pool bought and sold almost 1,500,000 shares of RCA stock in a single seven-day period in 1929, at a net profit to its members of almost $5,000,000. S.Rep.No.1455, 73d Cong., 2d Sess., 32—33, 47 (1934). Another famous pool involved the stock of the American Commercial Alcohol Co. During the summer of 1933, eight insiders and their associates reaped a profit of $300,000 on an investment of $62,000. A third pool, in the stock of the Fox Film Corporation, made $2,000,000 in fave months. This pool was notable for the extent to which large stockholders participated. Id., at 55—68. During 1929, over 100 stocks listed on the New York Stock Exchange were subjects of pools. Id., at 32. Insider participation in these pools was ubiquitous. See generally F. Pecora, Wall Street Under Oath (1939).
4
See SEC, Report on Investigation in the Matter of Richard Whitney Pursuant to Section 21(a) of the Securities Exchange Act of 1934 (Nov. 1, 1938).
5
See Pecora, supra, n. 3, at 131—188.
6
Id., at 70—130.
7
The six-month period is, as Mr. Corcoran said during the hearings on the bill, a 'crude rule of thumb,' Hearings on Stock Exchange Practices before the Senate Committee on Banking and Currency pursuant to S.Res. 84, 56, and 97, 73d Cong., 1st and 2d Sess., pt. 15, p. 6557. It represents a balance struck between the need to deter short-swings based on inside information and a desire to avoid unduly inhibiting long-term corporate investment. S.Rep.No. 792, 73d Cong., 2d Sess., 6. Six months was hit upon, presumably, on the view that 'where the insider is obliged to hold the original security . . . for longer than six months . . . market fluctuations are likely to wipe out his profits.' Comment, 117 U.Pa.L.Rev. 1034, 1054 (1969).
8
'This approach maximized the ability of the rule to eradicate speculative abuses by reducing difficulties in proof. Such arbitrary and sweeping coverage was deemed necessary to insure the optimum prophylactic effect.' Bershad v. McDonough, 428 F.2d 693, 696 (CA7).
It is somewhat anomalous that the majority relies on a feature of the statutory scheme designed to broaden its scope in order to insulate from the operation of the statute a device by which the goals of the statute can be largely frustrated.
9
See Twentieth Century Fund, Stock Market Control 114—118 (1934).
10
Baumhart, How Ethical Are Businessmen?, Harv.Bus.Rev., July-Aug. 1961, p. 6, at 16. The survey had posed the following hypothetical:
'What would you do if . . . as a director of a large corporation, you learned at a board meeting of an impending merger with a smaller company? Suppose this company has had an unprofitable year, and its stock is selling at a price so low that you are certain it will rise when news of the merger becomes public knowledge.' Id., at 7.
11
Such an inquiry might well be extensive. The following commentary, aimed at the Court of Appeals decision below, applies with equal force to the majority's approach:
'Even if the statute could be construed as allowing an exception for a severed sale of the final 9.9 percent of stock otherwise within section 16(b), when are sales to be found separate and independent? The Emerson decision provides no guidelines. All it says is: 'The factual question as to whether a particular sale is a separate and independent sale is a matter for decision under the peculiar facts of the particular case. In this regard each case must stand or fall on its own facts.' What facts? What of separate sales to the same vendee? How separate must the parties be—different companies, different corporations, different entities? Must there be an interval between the sales? How long? If Emerson is to be followed, would the question be not so much how discreet (sic) the sales are as how discreet counsel has been? The inquiry seems to lead away from the legislative intent that all potential violators be held to the full sanctions of section 16(b).' Recent Decisions, 5 Ga.L.Rev. 584, 590 (footnote omitted).
12
Such a presumption is not a novel suggestion in the interpretation of securities legislation. The Securities Act of 1933, 48 Stat. 74, as amended, 15 U.S.C. § 77a et seq., for example, requires that public securities offerings be registered with the SEC. § 5, 15 U.S.C. § 77e. But registration is not required of stock sold in a so-called 'private placement.' § 4(2), 15 U.S.C. § 77d(2). The purchaser of such stock, however, cannot avoid the registration requirements when he resells it unless his original purchase was not made 'with a view to . . . distribution.' § 2(11), 15 U.S.C. § 77b(11). The difficulties inherent in determining this elusive 'view,' see 1 L. Loss,
Securities Regulation 665—687 (2d ed. 1961), have prompted the suggestion that there be a rebuttable presumption that a sale made within two years of purchase indicates the original purchase was made with a view to distribution. 4 id., at 2652 (Supplement to 2d ed. 1969); see also The Wheat Report, Disclosure to Investors 165 (CCH 1969).
A similar rebuttable presumption applies in the case of a 'controlling person,' (as defined in Rule 405, 17 CFR § 230.405(f)). Such a person need not register his sales under the 1933 Act if in any six-month period they amount to no more than 1% of the issuer's outstanding stock. Rule 154, 17 CFR § 230.154. But, 'if a plan exists to effect a series of sales during successive 6 months ' periods, such sales cannot be considered in the category of routine trades but must be deemed a distribution not exempted by the rule.' Securities Act Release No. 4818, 31 Fed.Reg. 2545 (1966).
Different policies, of course, underlie the 1933 and 1934 Acts. Yet, the above-described provisions of the 1933 Act, like § 16(b) in the 1934 Act, are aimed at deterring certain transactions because of their inherent opportunities for abuse. The 1933 Act presumptions are based on a judgment that a short-term series of sales is statistically likely to reflect an 'intent' to engage in a public distribution without registration. The presumption I would apply in the case of § 16(b) is justified by a similar statistical likelihood that a series of dispositive transactions, like Emerson's, undertaken within six months of a matching purchase, was pursuant to a 'plan of disposition.'
13
It is conceded that Emerson could not meet such a burden in the present case. In general, an insider could perhaps defeat the presumption of a plan by showing 'changed circumstances' similar to those required to avoid registration requirements under the private offering exemption of the 1933 Act. See 1 Loss, Securities Regulation, supra, at 665—673; 4 id., at 2646—2654 (1969).
14
In response to the Feder case, the SEC amended its rules to require disclosure of all transactions by directors and officers within six months prior to their appointment and for six months after their resignations. Rule 16a—1, 17 CFR § 240.16a 1(d), (e) (as amended, Sept. 30, 1969). Thus, the restrictive reporting requirements relied upon by the majority apply only to beneficial owners, itself an arbitrary distinction.
| 78
|
404 U.S. 443
92 S.Ct. 589
30 L.Ed.2d 592
UNITED STATES, Petitioner,v.Forrest S. TUCKER.
No. 70—86.
Argued Nov. 11, 1971.
Decided Jan. 11, 1972.
Syllabus
In imposing sentence upon a defendant convicted of bank robbery, a federal district judge gave explicit consideration to the defendant's record of previous convictions. It was later conclusively determined that two of the previous convictions were constitutionally invalid, having been obtained in violation Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. Held: Under these circumstances the Court of Appeals was correct in remanding the case to the District Court for reconsideration of the sentence imposed upon the defendant. Pp. 446—449.
431 F.2d 1292, affirmed.
Allan A. Tuttle, Raleigh, N.C., for petitioner.
William A. Reppy, Jr., Durham, N.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
In 1953 the respondent, Forrest S. Tucker, was brought to trial in a federal district court in California upon a charge of armed bank robbery. He pleaded not guilty. For female employees of the bank were called as witnesses for the prosecution, and they identified the respondent as the robber. He testified in his own behalf, denying participation in the robbery and offering an alibi defense. To impeach the credibility of his testimony, the prosecution was permitted on cross-examination to ask him whether he had previously been convicted of any felonies. He acknowledged three previous felony convictions, one in Florida in 1938, another in Louisiana in 1946, and a third in Florida in 1950. At the conclusion of the trial the jury returned a verdict of guilty. In the ensuing sentencing proceeding the District Judge conducted an inquiry into the respondent's background, and, the record shows, gave explicit attention to the three previous felony convictions the respondent had acknowledged.1 The judge then sentenced him to serve 25 years in prison—the maximum term authorized by the applicable federal statute, 18 U.S.C. § 2113(d).
2
Several years later it was conclusively determined that the respondent's 1938 conviction in Florida and his 1946 conviction in Louisiana were constitutionally invalid. This determination was made by the Superior Court of Alameda County, California, upon that court's finding in a collateral proceeding that those convictions had resulted from proceedings in which the respondent had been unrepresented by counsel, and that he had been 'neither advised of his right to legal assistance nor did he intelligently and understandingly waive this right to the assistance of counsel.'2
3
Thereafter the respondent initiated the present litigation. Proceeding under 28 U.S.C. § 2255, he filed a motion in the Federal District Court in which he had been convicted in 1953, claiming that introduction at the 1953 trial of evidence of his prior invalid convictions had fatally tainted the jury's verdict of guilt. Upon consideration of the motion, the District Judge agreed that 'the use of the constitutionally invalid prior convictions on cross-examination for impeachment purposes was error,' but found that the error was harmless beyond a reasonable doubt, in view of the overwhelming trial evidence that the respondent had been guilty of the bank robbery. Tucker v. United States, D.C., 299 F.Supp. 1376. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284.
4
On appeal, the Court of Appeals for the Ninth Circuit agreed that it had been 'firmly proved that the evidence of prior convictions did not contribute to the verdict obtained and that, with respect to the verdict of guilty, the error in receiving such evidence was therefore harmless beyond a reasonable doubt.' It went on, however, to find that there was 'a reasonable probability that the defective prior convictions may have led the trial court to impose a heavier prison sentence than it otherwise would have imposed.' Accordingly, the appellate court affirmed the refusal to vacate the conviction, but remanded the case to the District Court for resentencing 'without consideration of any prior convictions which are invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.' 431 F.2d 1292, 1293, 1294. The Government came here with a petition for a writ of certiorari, which we granted. 402 U.S. 942, 91 S.Ct. 1616, 29 L.Ed.2d 110.
5
The government asks us to reverse the judgment of the Court of Appeals insofar as it remanded this case to the District Court for resentencing. It argues that a federal district judge has wide and largely unreviewable discretion in imposing sentence, and that in exercising that discretion his relevant inquiry is not whether the defendant has been formally convicted of past crimes, but whether and to what extent the defendant has in fact engaged in criminal or antisocial conduct. Further, the Government argues, in view of other detrimental information about the respondent possessed at the time of sentencing by the trial judge, it is highly unlikely that a different sentence would have been imposed even if the judge had known that two of the respondent's previous convictions were constitutionally invalid. Accordingly, the Government concludes that to now remand this case for resentencing would impose an 'artificial' and 'unrealistic' burden upon the District Court.
6
It is surely true, as the Government asserts, that a trial judge in the federal judicial system generally has wide discretion in determining what sentence to impose. It is also true that before making that determination, a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come. United States v. Trigg, 7 Cir., 392 F.2d 860, 864; Davis v. United States, 5 Cir., 376 F.2d 535, 538; Cross v. United States, 122 U.S.App.D.C. 380, 382, 354 F.2d 512, 514; United States v. Doyle, 2 Cir., 348 F.2d 715, 721; United States v. Magliano, 4 Cir., 336 F.2d 817, 822; Fed.Rule Crim.Proc. 32(a)(2). See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337; North Carolina v. Pearce, 395 U.S. 711, 723, 89 S.Ct. 2072, 2079, 23 L.Ed.2d 656. The Government is also on solid ground in asserting that a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review. Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405. Cf. Yates v. United States, 356 U.S. 363, 78 S.Ct. 766, 2 L.Ed.2d 837.
7
But these general propositions do not decide the case before us. For we deal here, not with a sentence imposed in the informed discretion of a trial judge, but with a sentence founded at least in part upon misinformation of constitutional magnitude. As in Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, 'this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue.' Id., at 741, 68 S.Ct., at 1255. The record in the present case makes evident that the sentencing judge gave specific consideration to the respondent's previous convictions before imposing sentence upon him.3 Yet it is now clear that two of those convictions were wholly unconstitutional under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.4
8
We need not speculate about whether the outcome of the respondent's 1938 and 1946 prosecutions would necessarily have been different if he had had the help of a lawyer.5 Such speculation is not only fruitless, but quite beside the point. For the real question here is not whether the results of the Florida and Louisiana proceedings might have been different if the respondent had had counsel, but whether the sentence in the 1953 federal case might have been different if the sentencing judge had known that at least two of the respondent's previous convictions had been unconstitutionally obtained.6
9
We agree with the Court of Appeals that the answer to this question must be 'yes.' For if the trial judge in 1953 had been aware of the constitutional informity of two of the previous convictions, the factual circumstances of the respondent's background would have appeared in a dramatically different light at the sentencing proceeding. Instead of confronting a defendant who had been legally convicted of three previous felonies, the judge would then have been dealing with a man who beginning at age 17, had been unconstitutionally imprisoned for more than ten years, including five and one-half years on a chain gang.7 We cannot agree with the Government that a re-evaluation of the respondent's sentence by the District Court even at this late date will be either 'artificial' or 'unrealistic.'8
10
The Gideon case established an unequivocal rule 'making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one.' Burgett v. Texas, 389 U.S. 109, 114, 88 S.Ct. 258, 261, 19 L.Ed.2d 319. In Burgett we said that '(t)o 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.' Id., at 115, 88 S.Ct., at 262. Erosion of the Gideon principle can be prevented here only by affirming the judgment of the Court of Appeals remanding this case to the trial court for reconsideration of the respondent's sentence.
11
The judgment is affirmed.
12
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
13
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, dissenting.
14
The Court's opinion, of course, is a fine and acceptable exposition of abstract law. If I felt that it fit Tucker's case, I would join it. The Court, however, fails to mention and to give effect to certain facts that, for me, are controlling:
15
1. At his armed bank robbery trial in May 1953 Tucker was no juvenile. He was 32 years of age and was represented by counsel. A reading of his trial testimony discloses that he was very knowledgeable indeed. Tucker testified on cross-examination at that trial not only as to the fact of three prior state felony convictions, but, as well, as to his engaging in the proscribed conduct underlying two of those convictions. He stated flatly (a) that in 1938 he broke into a garage and took a man's automobile, and (b) that in 1946 he broke into a jewelry store at night.1 He also acknowledged that, while waiting for transportation to prison in Florida after the third conviction, he escaped and went to California using an assumed name.2 Thus, wholly apart from formal convictions, Tucker conceded criminal conduct on his part on three separate prior occasions.
16
2. The judge who presided at Tucker's pre-Gideon trial for armed bank robbery in 1953 was the Honorable George B. Harris of the United States District Court for the Northern District of California. After Tucker's conviction by a jury Judge Harris imposed the 25-year maximum sentence prescribed by 18 U.S.C. §§ 2113(a) and 2113(d). Despite the interim passage of 16 years, Tucker's present petition, filed pursuant to 28 U.S.C. § 2255, also came before the very same Judge Harris, then Chief Judge of the Northern District. The judge denied relief on the ground that the error in the use, for impeachment purposes, of two constitutionally invalid prior convictions was harmless beyond a reasonable doubt (a) because the issue of guilt or innocence was not at all close, (b) because Tucker's testimony 'had been successfully impeached by prior inconsistent statements made to the Federal Bureau of Investigation agents, and by rebuttal testimony which demonstrated that portions of (his) testimony (were) improbable and untrue,' and (c) because his 'testimony was successfully impeached, and, in fact, demolished by additional items.' 299 F.Supp. 1376, 1378 (ND Cal.1969). As to all this, on the issue of guilt, the Court of Appeals agreed, 431 F.2d 1292, 1293 (CA9 1970), and this Court today does not rule otherwise.
17
Chief Judge Harris' § 2255 ruling translates for me into something completely inescapable, namely, that in 1953, wholly apart from the 1938 and 1946 convictions, he would have imposed the 25-year maximum sentence anyway. Surely Judge Harris, of all people, is the best source of knowledge as to the effect, if any, of those two convictions in his determination of the sentence to be imposed. Yet the Court speculates that, despite his identity and despite his obvious disclaimer, Judge Harris might have been influenced in his sentencing by the fact of the two prior convictions, rather than by the three criminal acts that Tucker himself acknowledged.
18
On remand the case presumably will go once again to Judge Harris, and undoubtedly the same sentence once again will be imposed. Perhaps this is all worthwhile and, if so, I must be content with the Court's disposition of the case on general principles. I entertain more than a mild suspicion, however, that this is an exercise in futility, that the Court is merely marching up the hill only to march right down again, and that it is time we become just a little realistic in the face of a record such as this one.
19
I would reverse the judgment of the Court of Appeals insofar as it remands the case to the District Court for resentencing.
1
An FBI agent was present at the sentencing proceeding. The District Judge began the proceeding by stating, 'I would like to have the Agent's testimony with respect to the prior convictions.'
The agent testified, in relevant part, as follows: 'As the defendant said, when he was a juvenile, I believe it was in 1938, he received a ten-year sentence in Florida . . ..
'. . . He said there was five years and four months on the chain gang . . . and he said he actually served two years beyond that . . ..
'In 1950 Mr. Tucker was sentenced to a five year term in the State of Florida, for, I believe it was burglary, and on January the 5, 1951, while in custody in the hospital, he escaped.
'In 1946 he was convicted in the State of Louisiana on a felony charge and given a term of 4 years.
'. . . I believe it was a burglary.'
2
The decision of the Superior Court of Alameda County is unreported, but the accuracy of that court's determination is not questioned. See In re Tucker, 64 Cal.2d 15, 48 Cal.Rptr. 697, 409 P.2d 921; Tucker v. Craven, 9 Cir., 421 F.2d 139.
3
See n. 1, supra.
4
The respondent's convictions occurred years before the Gideon case was decided, but the impact of that decision was fully retroactive. Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41.
5
It is worth pointing out, however, that to make the contrary assumption, i.e., that the prosecutions would have turned out exactly the same even if the respondent had had the assistance of counsel, would be to reject the reasoning upon which the Gideon decision was based:
'(R)eason and reflection require us to recognize that in 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. . . . 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.' 372 U.S., at 344, 83 S.Ct., at 796.
6
The constitutional validity of the respondent's third conviction—in Florida in 1950—has not been determined. The Government states in its brief that it has been informed by the clerk of the Criminal Court of Records of Dade County, Florida, that the respondent had counsel at that trial. The respondent's brief states that the respondent has advised his present counsel that at the 1950 Florida proceeding he specifically asked the judge to appoint counsel for him because of his indigence and that the request was denied.
7
See n. 1, supra.
8
As noted above, at 445, and emphasized in the dissenting opinion, the trial judge, in ruling upon the respondent's present § 2255 motion, held that the wrongful use of the invalid previous convictions to impeach the respondent's testimony at the 1953 trial was harmless error, in view of the overwhelming evidence that he was guilty of the bank robbery. But the respondent's guilt of that offense hardly 'translates' into an 'inescapable' assumption that the trial judge would have imposed a maximum 25-year prison sentence if he had known that the respondent had already been unconstitutionally imprisoned for more than 10 years. It would be equally callous to assume, now that the constitutional invalidity of the respondent's previous convictions is clear, that the trial judge will upon reconsideration 'undoubtedly' impose the same sentence he imposed in 1953.
1
'Q. . . . You were convicted in Florida, were you not?
'A. Yes, I was.
'Q. For what?
'A. Automobile theft, breaking and entering.
'Q. What do you mean 'automobile theft, breaking and entering'?
'A. It boils down to this, I was 17 years old, broke into a man's garage, took his automobile, went joy riding in it, received a ten year sentence for it.
'Q. At the age of 17 you received a ten year sentence?
'A. Yes.
'Q. When was that?
'A. 1938.
'Q. You broke into a place and stole a car?
'A. Yes.
'Q. What kind of car did you steal?
'A. '36 Ford.
'Q. Tell us about your other convictions.
'A. 1946 I broke into a jewelry store.
'Q. Where?
'A. New Orleans.
'Q. Night or day?
'A. Night.' Trial Transcript 161—162.
2
'Q. Why did you use the name of Rick Bellew, if you did?
'A. Because I was a fugitive from Florida.
'Q. You were a what?
'A. A fugitive.
'Q. A fugitive from what?
'A. I had been sentenced to a term in Florida for the third conviction that you just brought up, and while waiting transportation to prison I was given a chance to—nobody was watching me, and I walked off down there and came out to California.
'Q. Where did you walk away from?
'A. I was having my appendix removed in the hospital . . ..'
Trial Transcript 166.
'. . . (H)e found me guilty and subsequently I escaped and came out here. . . .' Sentencing Transcript 230.
| 01
|
404 U.S. 453
92 S.Ct. 637
30 L.Ed.2d 600
FEDERAL POWER COMMISSION, Petitioner,v.FLORIDA POWER & LIGHT COMPANY.
No. 70—38.
Argued Nov. 15, 1971.
Decided Jan. 12, 1972.
Rehearing Denied Feb. 22, 1972.
See 405 U.S. 948, 92 S.Ct. 929.
Syllabus
The Federal Power Commission (FPC) properly determined that the transfer of power from Florida Power & Light Co. (FP & L) to another Florida utility's 'bus' (a transmission line into which subsidiary lines connect) and the simultaneous transfer of power from that utility's 'bus' to a Georgia company gave the FPC jurisdiction over FP & L under § 201(b) of the Federal Power Act, which grants jurisdiction to the FPC over 'the transmission of electric energy in interstate commerce . . . and the sale of electric energy at wholesale in interstate commerce, but . . . not (over) any other sale of electric energy.' The FPC's conclusion that FP & L energy was commingled with that of the other Florida utility, and thus was transmitted in interstate commerce, was substantially supported by expert opinion that is in accord with the known facts of electricity, and is sufficient to support its jurisdiction. Pp. 454—469.
430 F.2d 1377, reversed and remanded.
Samuel Huntington, Washington, D.C., for petitioner.
Jefferson D. Giller, Houston, Tex., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
We are asked to determine whether the Federal Power Commission exceeded its statutory authorization when it asserted jurisdiction over the Florida Power & Light Co. Section 201(b) of the Federal Power Act, as amended, 49 Stat. 847, 16 U.S.C. § 824(b), grants the Federal Power Commission jurisdiction over 'the transmission of electric energy in interstate commerce and . . . the sale of electric energy at wholesale in interstate commerce, but . . . not (over) any other sale of electric energy . . ..' Section 201(c) defines energy transmitted in interstate commerce as energy 'transmitted from a State and consumed at any point outside thereof.'1 In Connecticut Light & Power Co. v. FPC, 324 U.S. 515, 65 S.Ct. 749, 89 L.Ed. 1150 (1945), we noted that by this definition the initial jurisdictional determination 'was to follow the flow of electric energy, an engineering and scientific, rather than a legalistic or governmental, test.' Id., at 529, 65 S.Ct. 749, 755; FPC v. Southern California Edison Co., 376 U.S. 205, 209 n. 5, 84 S.Ct. 644, 647, 11 L.Ed.2d 638 (1964).
2
In the case now before us the FPC hearing examiner and the Commission itself, utilizing two scientific tests, determined that the Florida Power & Light Co. (FP & L) generates energy that is transmitted in interstate commerce. They therefore held the company subject to the Commission's jurisdiction. Respondent FP & L argues that an alternative model better represents the flow of its electricity; by use of this model it purports to demonstrate that its power has not flowed in interstate commerce. The Court of Appeals for the Fifth Circuit rejected the FPC's tests as 'not sufficient to prove the actual transmission of energy interstate.' 430 F.2d 1377, 1383 (1970). It did not approve FP & L's test ('Both (the FPC and the FP & L tests) suffer from the same vice,' id., at 1385), but because the FPC must shoulder the burden of proof, its finding of jurisdiction was set aside.
3
We granted certiorari to determine if either of the FPC's tests provides an acceptable basis at law and a sufficient basis in fact for the establishment of jurisdiction. 401 U.S. 907, 91 S.Ct. 873, 27 L.Ed.2d 805 (1971).
4
* FP & L is Florida's largest electric utility. At the time relevant to this litigation it served nearly one million customers, ranked ninth nationally among electric companies in revenues, 14th in investment in gross utility electric plant, and 16th in kilowatt-hour sales. Despite this significant size, the peninsular nature of Florida, the concentration of the company's sales in the southern part of the State,2 and the recurrent threat of hurricanes which might sever power lines combine to make the operations of the company unusually insular and independent of the operations of like companies in other States. All of FP & L's equipment, including transmission lines, is confined to Florida and none of its lines directly connect with those of out-of-state companies.
5
FP & L does, however, indirectly connect with out-of-state companies. As a member of the Florida Pool, it is interconnected with the Florida Power Corp. (Corp),3 the Tampa Electric Co., the Orlando Utilities Commission, and the City of Jacksonville. These interconnected utilities and authorities coordinate their activities and exchange power as circumstances require.4 In 1964 FP & L transferred over 107 million kwh to Corp and received over 61 million kwh from Corp.5 If power from FP & L flows in interstate commerce it is because Corp interconnects just short of Florida's northern border with Georgia Power Co.6 and regularly exchanges power with it.7 Georgia's lines transmit the power out of or into Florida. There are numerous instances in which transfers between Georgia and Corp are recorded as coinciding with transfers between Corp and FP & L.8
6
The Georgia-Corp interconnection serves another function. Corp, FP & L, and the other Florida Pool participants are members of the Interconnected Systems Group (ISG), a national interlocking of utilities that automatically provides power in case of emergencies. In time of emergency this power also would flow through Corp's links with Georgia. To date FP & L has had no occasion to call for ISG power. But when a midwestern utility sustained a 580-megawatt generating loss, a regularly scheduled 8-megawatt FP & L contribution to the Florida Pool coincided with an 8-megawatt contribution from the pool to the ISG system.
7
These relationships establish the focal issue in this case. The FPC may exercise jurisdiction only if there is substantial evidentiary support for the Commission's conclusion that FP & L power has reached Georgia via Corp or that Georgia's power has reached FP & L because of exchanges with Corp. What happens when FP & L gives power to Corp and Corp gives power to Georgia (or vice versa)? Is FP & L power commingled with Corp's own supply, and thus passed on with that supply, as the Commission contends? Or is it diverted to handle Corp's independent power needs, displacing a like amount of Corp power that is then passed on, as respondent argues? Or, as the Commission also contends, do changes in FP & L's load or generation, or that of others in the interconnected system, stimulate a reaction up and down the line by a signal or a chain reaction that is, in essence, electricity moving in interstate commerce? Upon answer to these questions, jurisdiction rides.
8
If FP & L were directly involved in power exchanges with Georgia, there would be no serious question about the resolution of this case. Section 201 of the Federal Power Act owes its origin to the determination of this Court that a direct transfer of power from a utility in Rhode Island to a utility in Massachusetts is in interstate commerce. See Public Utilities Comm'n v. Attleboro Steam & Electric Co., 273 U.S. 83, 47 S.Ct. 294, 71 L.Ed. 549 (1927). 'Part II (of the Act) is a direct result of Attleboro.' United States v. Public Utilities Comm'n of California, 345 U.S. 295, 311, 73 S.Ct. 706, 715, 97 L.Ed. 1020 (1953). There can be no doubt that § 201 achieves its end and fills the 'Attleboro gap' by giving the FPC jurisdiction over direct exchanges. Connecticut Light & Power Co. v. FPC, 324 U.S. 515, 65 S.Ct. 749, 89 L.Ed. 1150 (1945).
9
Nor would there be any difficulty in resolving this case if the company or companies that stood between FP & L and the out-of-state power companies could be shown to be sometimes no more than a funnel. In Jersey Central Power & Light Co. v. FPC, 319 U.S. 61, 63 S.Ct. 953, 87 L.Ed. 1258 (1943), the first of the major FPC jurisdictional cases to be considered by this Court, Jersey Central supplied power to the Public Service Electric & Gas Co. (also a New Jersey company), which in turn had exchange arrangements with Staten Island Edison Corp. (a New York company). The transfer from PSE & G to Staten Island was effected through a 'bus'—a transmission line of three conductors into which a number of subsidiary lines connect. The FPC showed through extensive sampling of the logs of the relevant companies, that on at least a dozen occasions when Staten Island drew power from the bus only Jersey Central was supplying the bus. Thus, the intermediate presence of PSE & G was shown to be, in some circumstances, a null factor, and it was established that Jersey Central energy was moving in interstate commerce.
10
In the litigation before us the record does not disclose situations in which Corp operated as a null or insufficient factor. Thus, the FPC has not in this litigation demonstrated with the clarity and certainty obtaining in the Jersey Central case that the energy flows that are a prerequisite to jurisdiction occurred.
11
This is not, however, the equivalent of saying that the flows did not occur or that there was not substantial evidence for concluding that they did. The Court of Appeals was hardly less emphatic than the Federal Power Commission in its conclusion that FP & L's 'proof' that the flows did not occur was unconvincing. The court purported to have no opinion whether the flows had actually occurred. The question that must be resolved, therefore, is whether the evidence presented, though not so certain and convincing as that which the FPC offered in Jersey Central, was nonetheless adequate to establish jurisdiction.
12
We turn first to the conflicting contentions of the parties.
II
13
The Federal Power Commission followed alternate routes to its conclusion that FP & L energy moved in interstate commerce. The first course, based on what the Commission called the electromagnetic unity of response of interconnected electrical systems, is best represented in the words of the hearing examiner:
14
'(N)one of the connected electric systems including that of Florida, Corp, and Georgia has any control over the actual transfers of power at each point of interconnection because of the free flow characteristics of electric networks. . . .
15
'An electric utility system such as Florida (Power & Light) is essentially an electro-mechanical system to which all operating generators on the interconnected network are interlocked electromagnetically. This means that electric generators, under ordinary operating conditions run either at exactly the same speed or at speeds which will result in a frequency of 60 cycles. No operating generator can change its speed by itself as long as it operates connected to the network. All generators connected to the same network must follow each other as to speed and frequency whenever there is a change in frequency, and the frequency of all interlocked generators is always exactly the same.
16
. . . . . . .
17
'If a housewife in Atlanta on the Georgia system turns on a light, every generator on Florida's system almost instantly is caused to produce some quantity of additional electric energy which serves to maintain the balance in the interconnected system between generation and load. If sensitive enough instruments were available and were to be placed throughout Florida's system the increase in generation by every generator on Florida (Power & Light) could be precisely measured.' The hearing examiner concluded:
18
'The cause and effect relationship in electric energy occurring throughout every generator and point on the Georgia, Corp and Florida systems constitutes interstate transmission of electric energy by, to, and from Florida. It is the electromagnetic unity of response of Florida, Corp, Georgia and other interconnecting systems that constitutes the interstate transmission of electric energy by Florida.'9
19
By this analysis a change in FP & L's load or generating pattern depletes or adds to the force available in out-of-state lines; therefore FP & L is transmitting energy in interstate commerce.
20
The alternative analysis by the Commission and its staff experts concentrates on power flow within the 'Turner bus'—the point of connection between Corp's and FP & L's systems. Power supplied to the bus from a variety of sources is said to merge at a point and to be commingled just as molecules of water from different sources (rains, streams, etc.) would be commingled in a reservoir. On this basis the FPC need only show (1) FP & L power entering the bus and (2) power leaving the bus for out-of-state destinations at the same moment, in order to establish the fact that some FP & L power goes out of state.10 The FPC purported to make this demonstration by a series of tracing studies.11
21
FP & L objects. The first approach is said to be technologically sound, but legally insufficient in that it does not demonstrate that any FP & L power flows in interstate commerce, but only that it affects interstate commerce. Congress, it is argued, could have chosen to grant the FPC jurisdiction over activities affecting commerce, but it clearly did not do so.12
22
The second approach of the FPC purports to meet the standard at law, but according to FP & L it is technologically unsound. A bus is not a point, but rather a tangible, physical three-strand power line, in this case 225 feet in length. It is argued that it is not a general reservoir. Power, according to this argument, enters and is drawn off the line at discrete identifiable points. Power from any given source will not flow further along the line than loads of wattage cumulatively equal to the wattage of the power source. The distribution of entry lines and wattage loads on the Turner bus is said to demonstrate that all of the FP & L's power will be exhausted by Corp's load lines before the point, further down the line, where Georgia's load intervenes. When power flows in the opposite direction (i.e., north to south) again the effect is one of displacement: Georgia's power goes to Corp's loads and the output of Corp's generators is thus displaced to FP & L.
III
23
We do not find it necessary to approve or disapprove the Federal Power Commission's analysis based on unity of electromagnetic response. Its alternative assertion that energy commingles in a bus is, in our opinion, sufficient to sustain jurisdiction.
24
In evaluating this second approach, the courts are called upon to do no more than assess the Commission's judgment of technical facts. If the Commission's conclusion of commingling is not overturned, then the legal consequences are clear.
25
The conclusion of the FPC that FP & L energy commingled with that of Corp and was transmitted in commerce rested on the testimony of expert witnesses. The major points expounded by these witnesses were probed, and in our opinion not undercut, by the hearing examiner's questions, FP & L's cross-examination, and rebuttal testimony of FP & L witnesses. The hearing examiner found the testimony persuasive and held that his conclusions could be independently reached upon it. A majority of the Commission, reasoning similarly, endorsed these conclusions.
26
A court must be reluctant to reverse results supported by such a weight of considered and carefully articulated expert opinion. Particularly when we consider a purely factual question within the area of competence of an administrative agency created by Congress, and when resolution of that question depends on 'engineering and scientific' considerations, we recognize the relevant agency's technical expertise and experience, and defer to its analysis unless it is without substantial basis in fact. An appreciation of such different institutional capacities is reflected in the congressional directive defining the terms of judicial review of FPC action: 'The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.' Federal Power Act § 313(b), 16 U.S.C. § 825l(b). See Gainesville Utilities Dept. v. Florida Power Corp., 402 U.S. 515, 526—529, 91 S.Ct. 1592, 1598, 29 L.Ed.2d 74 (1971).
27
The Court of Appeals appears to have rejected the Commission's conclusions for two reasons. First, it apparently regarded these conclusions as supported by mere speculation rather than evidence. In its view, expert opinion about the nature of reality, however logically compelling, is not fact.13 Second, even if the Commission's views might be said to be supported by substantial evidence, the Court of Appeals apparently thought it important that the Commission acknowledged that its conclusions rest upon representations of a reality imperfectly understood. From this the Court of Appeals concluded that it was dealing with a 'simplified characterization' that, despite the frequent use of that same characterization by other courts of appeals,14 was too uncertain in its application to any particular situation to be used as the basis for establishing jurisdiction.
28
We reverse and reinstate the FPC's order because we do not think these points are well taken. As to the Court of Appeals' first reservation, we hold that well-reasoned expert testimony based on what is known and uncontradicted by empirical evidence may in and of itself be 'substantial evidence' when first-hand evidence on the question (in this case how electricity moves within a bus) is unavailable.15 This proposition has been so long accepted,16 and indeed has been so often applied specifically to challenges to the FPC's determination of technical matters, that we do not consider it fairly in dispute. See, e.g., FPC v. Southern California Edison Co., 376 U.S. 205, 209 n. 5, 84 S.Ct. 644, 647, 11 L.Ed.2d 638 (1964); Travelers' Indemnity Co. v. Parkersburg Iron & Steel Co., 70 F.2d 63, 64 (1934); United States ex rel. Chapman v. FPC, 191 F.2d 796, 808 (1951) aff'd, 345 U.S. 153, 73 S.Ct. 609, 97 L.Ed. 918 (1953). As Judge Parker said in the Court of Appeals' opinion in the latter case:
29
'The (substantial-evidence) rule is no different because the questions involve matters of scientific knowledge and the evidence consists largely of the opinion of experts. The court may not, for that reason, ignore the conclusions of the experts and the Commission and put itself in the absurd position of substituting its judgment for theirs on controverted matters of hydraulic engineering. It is in just such matters that the findings of the Commission, because of its experience and the assistance of its technical staff, should be accorded the greatest weight and the courts should be most hesitant to substitute their judgment for that of the Commission.' 191 F.2d, at 808.
30
On affirming, this Court noted,
31
'(W)e cannot say, within the limited scope of review open to us, that the Commission's findings were not warranted. Judgment upon these conflicting engineering and economic issues is precisely that which the Commission exists to determine, so long as it cannot be said, as it cannot, that the judgment which it exercised had no basis in evidence and so was devoid of reason.' 345 U.S., at 171, 73 S.Ct., at 619 (1953).
32
The elusive nature of electrons renders experimental evidence that might draw the fine distinctions required by this case practically unobtainable. That does not mean that expert testimony is insubstantial and that FP & L is beyond federal regulation.
33
We think the second, related, concern expressed by the Court of Appeals exaggerates the standard of proof required in civil cases such as this. The lower court would apparently require tracing studies showing an energy flow-through like that demonstrated in Jersey Central.
34
We do not think Jersey Central sets such high jurisdictional standards. Special circumstances in that case (the occasional operation of PSE & G as a null factor) permitted the FPC to present clear and compelling proof of interstate transactions. But we assessed the FPC's determination, not by the standards of certainty, but rather by the substantial-evidence test.17 The fact that the FPC was exceptionally convincing in that leading case does not raise the standard that it must meet in all future cases.
35
Finding no reason in the case law for imposing a standard of certainty, we are not willing to construct one. It is not true, as argued by respondent, that an engineering test of certainty is needed to reserve an area of state jurisdiction. On top of the 'engineering and scientific test' that controls this case, the Federal Power Act imposes a 'legalistic or governmental' test. Federal jurisdiction may not reach 'facilities used in local distribution' of energy. 16 U.S.C. § 824(b). Thus, state jurisdiction is clearly demarcated and preserved. Connecticut Light & Power Co. v. FPC, 324 U.S. 515, 65 S.Ct. 749, 89 L.Ed. 1150 (1945).
36
A requirement of tracing studies of the sort demanded by the Court of Appeals—if they are feasible at all18—would take one to two years to conduct.19 Even under FPC's supposedly too easily met criteria of jurisdiction, the FP & L matter took almost four years to pass through Commission proceedings;20 it has been before the courts for four more years. It the congressionally mandated system is to function meaningfully, the judiciary cannot overwhelm it with unworkably high standards of proof. New England Divisions Case, 261 U.S. 184, 197, 43 S.Ct. 270, 275, 67 L.Ed. 605 (1923); Railroad Comm'n of Wisconsin v. Chicago, Burlington & Quincy R. Co., 257 U.S. 563, 579, 42 S.Ct. 232, 234, 66 L.Ed. 371 (1922).
37
We note, moreover, that Jersey Central type tracing studies become less feasible as interconnections grow more complicated. Arkansas Power & Light Co. v. FPC, 368 F.2d 376, 382 (CA8 1966), quoting 34 F.P.C. 747, 751. The requirement of Jersey Central type tracing might encourage the artificial and wasteful complication of interconnections for the purpose of avoiding federal jurisdiction. More important, as interconnections proliferate and energy pools grow larger, jurisdictional hurdles like those erected by the Court of Appeals would become ever more difficult to clear. Thus, the greater the need for regulation, the more likely it would become (under the Court of Appeals' rule) that regulation would not be achieved.
38
As pointed out by the Court of Appeals for the Seventh Circuit in an FPC case similar to this one, even in a criminal prosecution where the highest standards of proof are required, guilt may be shown by circumstantial evidence.21 The FPC has used tracing studies to show what went into and out of the Turner bus at a given moment; it has marshaled expert opinion to suggest what may reasonably be said to have occurred in the bus at the instant of transmission; it has presented this evidence in a closely reasoned and empirically uncontradicted opinion. Recognizing that the men responsible do not now fully understand electricity,22 though they know how to use it, and use it on an ever-expanding basis, we do not demand more of the Commission than that its conclusions be substantially supported by expert opinion that is in accord with the facts known for certain. The Commission has done enough to establish its jurisdiction.
39
The decision of the Court of Appeals is reversed and the case is remanded for reinstatement of the order of the Federal Power Commission.
40
Reversed and remanded.
41
Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
42
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE concurs, dissenting.
43
There can be no doubt that Congress has constitutional power to regulate under the Commerce Clause the interstate 'commingling' of electric power involved in the instant case. See Connecticut Light & Power Co. v. FPC, 324 U.S. 515, 525 530, 65 S.Ct. 749, 756. The question is whether it has done so.
44
The Examiner explains the 'electromagnetic unity' theory and tells us in electrical engineering terms why that unasserted power of Congress exists:
45
'An electric utility system such as (respondent's) is essentially an electromechanical system to which all operating generators on the interconnected network are interlocked electromagnetically. This means that electric generators, under ordinary operating conditions, run either at exactly the same speed or at speeds which will result in a frequency of 60 cycles. No operating generator can change its speed by itself as long as it operates connected to the network. All generators connected to the same network must follow each other as to speed and frequency whenever there is a change in frequency, and the frequency of all interlocked generators is always exactly the same.
46
'The electric systems of (respondent) and all other interconnected systems are essentially alike as to electrical, electromagnetic and electromechanical characteristics. Because they are alike, it is possible to have presently existing interconnected operations on a very large scale, extending from the Rocky Mountains to the Atlantic Ocean and from the Canadian to the Mexican border.
47
. . . . . . .
48
'If a housewife in Atlanta on the Georgia system turns on a light, every generator on (respondent's) system almost instantly is caused to produce some quantity of additional electric energy which serves to maintain the balance in the interconnected system between generation and load.' 37 F.P.C. 544, 567—568.
49
Evidently undesirous of explicitly overruling the proposition that '(m)ere connection determines nothing,' Jersey Central Power & Light Co. v. FPC, 319 U.S. 61, 72, 63 S.Ct. 953, 959, 87 L.Ed. 1258 (1943), the Court avoids validating the FPC's electromagnetic unity theory as the jurisdictional hold over the respondent. Instead, relying on the Commission's expertise, the Court purports to hold a narrower ground that actual flows of FP & L's electricity were in fact measured passing out of Florida through the employment of the Commission's 'commingled' tracing method. Closer analysis of this latter wizardry, which had previously been rejected by the Commission, Connecticut Light & Power Co., 3 F.P.C. 132 (1942), reveals, however, that actual flows were not in fact measured but were simply hypothesized using an engineering model which, as the dissenting commissioners observed, '(assumed) the fact in issue, and thus (begged) . . . the question of jurisdiction.' The conventional tracing method previously used in cases such as this one reached an entirely different result—that no actual interstate flow of FPL power had occurred. Jersey Central Power & Light Co. v. FPC, supra; Connecticut Light & Power Co. v. FPC, 324 U.S. 515, 65 S.Ct. 749.
50
The Commission's abandonment of the conventional test in favor of the commingled method will now mean that every privately owned interconnected facility in the United States (except for those isolated in Texas) is within the FPC's jurisdiction. Both tracing methods assume that a momentary increase in FP & L's generation over its local needs will be passed on to the interconnecting Florida Power Corp. (Corp) system located between FP & L and the state line. The conventional system assumes that such excesses will be absorbed by the first few loads reached in the Corp system and therefore will never cross the state line. On the other hand, the commingled approach assumes that the first load which the FP & L excess reaches will continue to rely upon other utilities' power to a large extent and therefore will absorb only a part of the FP & L excess. The leftover FP & L excess will then travel to the next load, but again, will only supply part of those consumers' needs, with the remainder passing on to the next load, and so on, until some fractional part of the original FP & L excess crosses the state line. Extending the assumption's application, it is clear that any momentary increase in output by any generator located at any point in the ISG grid will send a surge of power throughout the entire network. If this assumption is approved, then it is difficult to perceive what remains of the Jersey Central proposition that '(m) ere connection determines nothing.'
51
These scientific facts are, of course, the basis for the grid systems, much in vogue these days. But the Commission has no authority to order a company to enter a grid. Unless it is done voluntarily, as was true here, the Commission by virtue of § 202(b) of the Federal Power Act can act only1 'upon application of any State commission or of any person engaged in the transmission or sale of electric energy.' 16 U.S.C. § 824a(b).
52
A company transmitting electric energy in interstate commerce is subject to regulation by the Commission of its wholesale rates. 16 U.S.C. § 824(b). But there is no claim here that wholesale selling is involved; and the minuscule nature of the 'commingling' that has taken place and its incidental nature are doubtless the reasons why the Commission has not undertaken that phrase of regulation. The case is therefore unlike Pennsylvania Water & Power Co. v. FPC, 343 U.S. 414, 419—420, 72 S.Ct. 843, 845, 96 L.Ed. 1042. All that is involved here is an effort to make respondent follow the Commission's Uniform System of Accounts.2 16 U.S.C. § 825(a).
53
Rather than the engineering battle over tracing methods, the central question ought to be whether the 'commingling' is so de minimis as to warrant the fastening of the federal bureaucracy on this local company. The limited purpose of this legislation was stated clearly in the Senate Report:
54
'The decision of the Supreme Court in Public Utilities Commission v. Attleboro Steam & E. Co. (273 U.S. 83, 47 S.Ct. 294, 71 L.Ed. 549 ) placed the interstate wholesale transactions of the electric utilities entirely beyond the reach of the States. Other features of this interstate utility business are equally immune from State control either legally or practically.' S.Rep. No. 621, 74th Cong., 1st Sess., 17.3
55
While federal regulation was to be pervasive, once fastened onto a company, Congress expressed an unambiguous policy to preserve and to rely upon effective and adequate state regulation:
56
'The revised bill would impose Federal regulation only over those matters which cannot effectively be controlled by the States. The limitation on the Federal Power Commission's jurisdiction in this regard has been inserted in each section in an effort to prevent the expansion of Federal authority over State matters.' Id., at 18 (emphasis supplied).
57
And this objective is presented in the statute's language:
58
'It is hereby declared . . . that Federal regulation . . . is necessary in the public interest, such Federal regulation, however, to extend only to those matters which are not subject to regulation by the States.' Public Utility Holding Company Act of 1935, § 201(a), 49 Stat. 847.
59
The Commission does not assert that Florida's regulation of FP & L is inadequate. Each year the Florida Public Service Commission conducts field audits of electric utilities to ensure compliance with its accounting practices and depreciation rates.4 Other than enhancing the slogan of 'federal leadership' the Commission cites no function which it might better fulfill than the state regime.
60
The Court's result also runs counter to the expresed desire of Congress to encourage voluntary interconnection. Id., § 202(a), 49 Stat. 848. Interconnection between two local companies will now subject both to federal jurisdiction if either is also connected to a grid which at some point crosses a state line. To avoid the costs associated with switching from state to federal regulation a utility may now be induced to sever such interconnections. As the dissenting commissioners recognized:
61
'(I)nterconnections served the objective of reliability, and . . . reliability is strongly in the public interest. But with the present near universality of interconnections, it would seem that the Commission's opinion would as likely lead to present connections being broken as to new connections being established or existing connections strengthened.' 37 F.P.C., at 559 (1967).
62
In light of these congressional purposes I would not superimpose federal regulation on top of state regulation in case of de minimis transmissions not made by prearrangement or in case of wholesale transactions. In Jersey Central Power & Light Co. v. FPC, supra, 319 U.S., at 66—67, 63 S.Ct., at 955, we let federal regulation be fastened, though the energy transmitted was 'small.' Yet the transmissions apparently were neither accidental nor de minimis. Id., at 66 n. 4, 63 S.Ct., at 955.
63
In the instant case respondent is a member of the Interconnected Systems Group (ISG) which covers the southeastern and central portions of the United States. The Commission approved the Examiner's finding that 'all 140 members of the ISG operate in parallel and are interlocked electromagnetically; and that FPL (respondent) can receive from or contribute to ISG up to 100 mw. The record further supports the Examiner's findings the FPL normally has no control over the actual transfers of electric power and energy with any particular electric system with which it is interconnected; that since electric energy can be delivered virtually instantaneously when needed on a system at a speed of 186,000 miles per second, such energy can be and is transmitted to FPL when needed from out-of-state generators, and in turn can be and is transmitted from FPL to help meet out-of-state demands; and finally, that there is a cause and effect relationship in electric energy occurring throughout every generator and point on the FPL, Corp, Georgia, and Southern systems which constitutes interstate transmission of electric energy by, to, and from FPL.' 37 F.P.C., at 549.
64
In the instant case apart from the infinitesimal and sporadic exchanges the Commission only found that 'FPL (respondent) contributed 8 mw to ISG to assist a midwestern utility which had sustained a 580-mw generator loss.' Ibid. And that single episode could be measured in terms of seconds only. Such fleeting episodes are not in my view sufficient to displace a state regime with the federal one, since the Congress promised that as much as possible be left to the States. I would not make that a hollow promise.
65
If we allow federal pre-emption in this case, then we have come full cycle, leaving local authorities control of electric energy only insofar as municipal plants are concerned. The federal camel has a tendency to occupy permanently any state tent.
66
That may be a wise course; but if so, Congress should make the decision.
1
The relevant sections of 16 U.S.C. § 824, stated in full, are as follows:
'(a) It is declared that the business of transmitting and selling electric energy for ultimate distribution to the public is affected with a public interest, and that Federal regulation of matters relating to generation to the extent provided in this subchapter and subchapter III of this chapter and of that part of such business which consists of the transmission of electric energy in interstate commerce and the sale of such energy at wholesale in interstate commerce is necessary in the public interest, such Federal regulation, however, to extend only to those matters which are not subject to regulation by the States.
'(b) The provisions of this subchapter shall apply to the transmission of electric energy in interstate commerce and to the sale of electric energy at wholesale in interstate commerce, but shall not apply to any other sale of electric energy or deprive a State or State commission of its lawful authority now exercised over the exportation of hydroelectric energy which is transmitted across a State line. The Commission shall have jurisdiction over all facilities for such transmission or sale of electric energy, but shall not have jurisdiction, except as specifically provided in this subchapter and subchapter III of this chapter, over facilities used for the generation of electric energy or over facilities used in local distribution or only for the transmission of electric energy in intrastate commerce, or over facilities for the transmission of electric energy consumed wholly by the transmitter.
'(c) For the purpose of this subchapter, electric energy shall be held to be transmitted in interstate commerce if transmitted from a State and consumed at any point outside thereof; but only insofar as such transmission takes place within the United States.
'(d) The term 'sale of electric energy at wholesale' when used in this subchapter, means a sale of electric energy to any person for resale.'
2
Seventy-five percent of FP's load is concentrated at the southern tip of Florida, some 400 miles south of the Georgia border. Transcript of Proceedings before the FPC 241. Reprinted in App. 2 et seq. (hereinafter referred to as (T)).
3
Corp was before this Court in Gainesville Utilities Dept. v. Florida Power Corp., 402 U.S. 515, 91 S.Ct. 1592, 29 L.Ed.2d 74 (1971), in which case its operations are described in some detail. Corp is a public utility subject to the FPC's jurisdiction.
4
'The purpose of the energy interchanges is to take care of temporary needs. There are no economy sales (sales by a company that can produce lower cost power to a higher cost producer) because fuel costs are similar for all members (of the Florida Pool).' Opinion of the FPC Hearing Examiner, 37 F.P.C. 544, 562.
5
Hearing Exhibit No. 15, p. 1028 (T).
6
It has other interconnections across state lines, but we concentrate, as did the FPC, on a single Georgia-Corp connection. If FP power is shown to flow through this connection the others need not be considered, because jurisdiction is established. See n. 7, infra.
7
Opinion of the FPC Hearing Examiner, 37 F.P.C., at 564.
8
FPC staff exhibits revealed 42 instances, descovered by meter readings at selected hours over a four-month period, in which a transfer from Georgia to Corp's bus was instantly followed by a transfer from that bus to FP . Hearing Exhibits Nos. 18, pp. 1048—1054(T), and 19, pp. 1055—1059(T). Five instances of power flow from FP to Corp's bus, followed by transmission from that bus to Georgia were recorded over the same period. Hearing Exhibit No. 32, p. 1116(T). 'For example, Staff's Exhibit No. 18, at page 6, graphically demonstrates that on September 28, 1964, at 7:00 o'clock p.m., there was a flow of 51,000 kw of interstate power from Georgia to Corp and an instantaneous stantaneous flow of 50,000 kw of . . . power from Corp to FPL.' Opinion of the FPC, 37 F.P.C., at 550.
9
Opinion of the Hearing Examiner, 37 F.P.C. at 567—568.
10
If any FP power has reached Georgia, or FP makes use of any Georgia power, no matter how small the quantity, FPC jurisdiction will attach because it is settled that Congress has not 'conditioned the jurisdiction of the Commission upon any particular volume or proportion of interstate energy involved, and we do not . . . supply such a jurisdictional limitation by construction.' Connecticut Ligh & Power Co. v. FPC, 324 U.S. 515, 536, 65 S.Ct. 749, 759. See also Pennsylvania Water & Power Co. v. FPC, 343 U.S. 414, 72 S.Ct. 843, 96 L.Ed. 1042 (1952).
11
See Exhibits Nos. 18 and 19, pp. 1048—1059(T).
12
This argument is developed by the dissent in Jersey Central Power & Light Co. v. FPC, 319 U.S. 61, 78 et seq., 63 S.Ct. 953, 962 et seq. Note particularly p. 88, 63 S.Ct. p. 966: 'It is interesting to compare, in this connection, other statutes enacted by the same Congress (as the one which enacted Part II of the Federal Power Act). Three adopted in July and August 1935 covered activities 'affecting' commerce; three, including the Federal Power Act in question, adopted in August 1935 did not cover activities 'affecting' commerce.' Thus it was inferred that we are dealing with a particularly 'discriminating use of language.'
13
'Neither the examiner nor the Commission treated the commingling theory as a scientific fact depicting accurately what does occur but only as the more adequate way to conceptualize actual occurrences.
'The Commission expert witness Jacobsen acknowledged commingling has never been verified experimentally as fact.' 430 F.2d 1377, 1384—1385.
14
See principally Indiana & Michigan Electric Co. v. FPC, 365 F.2d 180 (CA7), cert. denied, 385 U.S. 972, 87 S.Ct. 509, 17 L.Ed.2d 435 (1966); Arkansas Power & Light Co. v. FPC, 368 F.2d 376 (CA8 1966); Public Service Co. of Indiana v. FPC, 375 F.2d 100 (CA7), cert. denied, 387 U.S. 931, 87 S.Ct. 2054, 18 L.Ed.2d 992 (1967); Cincinnati Gas & Electric Co. v. FPC, 376 F.2d 506 (CA6), cert. denied, 389 U.S. 842, 88 S.Ct. 77, 19 L.Ed.2d 106 (1967).
15
'Sometimes the reason for tolerating a gap either between evidence and findings or between findings and decision has to do with limitations of human intellects or limitations on the magnitude of investigations that may be conducted in particular circumstances. Not all propositions of fact that are useful and used in the administrative process are susceptible of proof with evidence. Or developing the evidence would be inordinately expensive.' 2 K. Davis, Administrative Law Treatise § 16.11, p. 473 (1958).
16
The weight of such testimony was properly recognized by Lord Mansfield some 190 years ago:
'The facts in this case are not disputed. In 1758 the bank was erected, and soon afterwards the harhour went to decay. The question is, to what has this decay been owing? The defendant says, to this bank. Why? Because it prevents the backwater. That is matter of opinion:—the whole case is a question of opinion, from facts agreed upon. Nobody can swear that it was the cause . . .. (T)he parties go down to trial . . . and Mr. Smeaton is called. A confusion now arises from a misapplication of terms. It is objected that Mr. Smeaton is going to speak, not as to facts, but as to opinion. That opinion, however, is deduced from facts which are not disputed—the situation of banks, the course of tides and of winds, and the shifting of sands. His opinion, deduced from all these facts, is, that, mathematically speaking, the bank may contribute to the mischief, but not sensibly. Mr. Smeaton understands the construction of harhours, the causes of their destruction, and how remedied. In matters of science no other witnesses can be called. . . . The question then depends on the evidence of those who understand such matters; and when such questions come before me, I always send for some of the brethren of the Trinity House. I cannot believe that where the question is, whether a defect arises from a natural or an artificial cause, the opinions of men of science are not to be received. . . . The cause of the decay of the harbour is. . . a matter of science . . .. Of this, such men as Mr. Smeaton alone can judge. Therefore we are of opinion that his judgment, formed on facts, was very proper evidence.' Folkes v. Chadd, 3 Doug. 157, 158—160, 99 Eng.Rep. 589 590 (1782).
Modern analysis follows this perception. See 7 J. Wigmore, Evidence §§ 1917—1929, 1976 (3d ed. 1940 and Supp. 1970).
17
'This evidence, we think, furnishes substantial basis for the conclusion of the Commission that facilities of Jersey Central are utilized for the transmission of electric energy across state lines.' Jersey Central, supra, n. 12, 319 U.S., at 67, 63 S.Ct., at 956.
18
'Logic would seem to dictate that where the utility is a member of a combination of utilities and has continuous access to an integrated pool of interstate energy, the tracing of out-of-state energy is indeed difficult, burdensome, and perhaps impossible.' Arkansas Power & Light Co. v. FPC, 368 F.2d, at 382.
19
Public Service Co. of Indiana v. FPC, 375 F.2d, at 104 n. 7.
20
The final FPC decision was handed down on May 2, 1967. We do not know when the FPC began its investigation of FP . But ignoring what must have been an extended period of initial staff work, we observe that the record shows that FP was formally notified on October 3, 1963, that in the opinion of the FPC staff it was subject to FPC jurisdiction. Order Initiating Investigation and Hearing 2412(T).
21
'We reject I&M's fundamental proposition in this case that in order to prevail, the Federal Power Commission must do what I&M claims to be impossible, that is, to prove by either tracing or some other unnamed 'scientific and engineering proof' that out-of-state energy reaches the wholesale customers. We might recall that even in criminal cases, guilt beyond a reasonable doubt often can be established by circumstantial evidence.' Indiana & Michigan Electric Co. v. FPC, 365 F.2d 180, at 184.
22
'Nobody can say for certain just how electricity is really transmitted.' Opinion of the Hearing Examiner, 37 F.P.C., at 568.
1
Apart from the exigencies of 'war.' See 16 U.S.C. § 824a(c).
2
This is not a case where state regulation has a hiatus that the federal regime fills. There is not, in other words, a no-man's area here.
Fla.Stats. § 366.05 (1969), authorizes the Florida Power Commission to 'prescribe uniform system and classification of accounts for all public utilities, which among other things shall set up adequate, fair and reasonable depreciation rates and charges.' A related section includes within the term public utility every person, corporation, partnership, association, or other legal entity and their lessees, trustees, or receivers operating, managing, or controlling any plant or other facility supplying electricity. Id., § 366.02.
The Commission exercises this power. See 1966 Florida Public Service Comm'n Annual Report 11:
'The Accounting and Auditing Department has the responsibility of maintaining surveillance over the books and records of the various companies within the Electric . . . industries subject to regulation by the Commission.
'In meeting this responsibility, the Department maintains a comprehensive file of statistical, financial, and accounting data in the form of annual, quarterly, and monthly reports submitted by the various companies. It maintains a continuous examination of these reports and conducts continuing field audits on the company premises to verify the accuracy . . . to determine the compliance of the basic accounting records with the Uniform System of Accounts prescribed in the Commission's Rules and Regulations.' (Emphasis supplied.)
3
Public Utilities Comm'n v. Attleboro Steam & Electric Co., 273 U.S. 83, 47 S.Ct. 294 (1927), held that even absent federal legislation the Commerce Clause precluded state rate regulation of sales of energy made by a Rhode Island producer of electricity to a Massachusetts distributor. Thus, one purpose of the Act was to fill the 'Attleboro gap' in rate regulation.
4
Inasmuch as virtually every privately owned utility in the United States (save those in Texas) is interwoven with a grid which at some point intersects a state boundary, the Commission's commingled tracing assumption will effectively eliminate electric utility regulation by States. In light of the congressional intent to avoid this outcome the Court has placed perhaps excessive reliance on the doctrine of judicial deference to agency expertise.
| 78
|
404 U.S. 477
92 S.Ct. 619
30 L.Ed.2d 618
Don Richard LEGO, Petitioner,v.John TWOMEY, Warden.
No. 70—5037.
Argued Nov. 11, 1971.
Decided Jan. 12, 1972.
Syllabus
Following a pretrial suppression hearing at which conflicting evidence was presented as to the voluntariness of a confession that petitioner had given the police, the trial judge, presumably applying the Illinois preponderance-of-the-evidence standard, held the confession admissible, and it was introduced into evidence at the trial, which resulted in petitioner's conviction. The judge had instructed the jury as to the prosecution's burden of proving guilt but did not instruct that the jury had to find the confession voluntary before it could be used in reaching its verdict. In a habeas corpus proceeding petitioner challenged his conviction. The District Court denied relief, and the Court of Appeals affirmed. Petitioner contends, relying upon In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, that the trial judge should have found the confession voluntary beyond a reasonable doubt before admitting it into evidence, or, alternatively, that the admissibility of the confession as evidence in a criminal trial (quite apart from its probative value) had to be determined by a reasonable-doubt standard to protect the values that exclusionary rules are designed to serve. Petitioner also urges that, even though the trial judge ruled on his coercion claim, he was entitled under Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, to have the jury decide that issue anew. Held:
1. The hearing on the voluntariness of a confession required by this Court's decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, is not designed to implement the presumption of innocence and enhance the reliability of jury verdicts, but to prevent the use of a coerced confession as violative of due process quite apart from its truth or falsity. Consequently, determining the admissibility of a confession by a preponderance of the evidence is not inconsistent with the mandate of In re Winship, supra. Pp. 482—487.
2. Petitioner has not demonstrated that admissibility rulings based on the preponderance-of-evidence standard are unreliable or that imposition of any higher standard under expanded exclusionary rules would be sufficiently productive to outweigh the public interest in having probative evidence available to juries. Pp. 487—489.
3. The procedure followed here comported with the requirements of Jackson, supra, and petitioner was not entitled to have the voluntariness issue which had been resolved by the trial judge also submitted to a jury for its separate consideration. Nor did Duncan, supra, change the rule that determining the admissibility of evidence is a function of the court rather than of the jury. P. 489—490.
Affirmed.
Nathan Lewin, Washington, D.C., for petitioner.
James B. Zagel, Chicago, Ill., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
In 1964 this Court held that a criminal defendant who challenges the voluntariness of a confession made to officials and sought to be used against him at his trial has a due process right to a reliable determination that the confession was in fact voluntarily given and not the outcome of coercion which the Constitution forbids. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. While our decision made plain that only voluntary confessions may be admitted at the trial of guilt or innocence, we did not then announce, or even suggest, that the factfinder at a coercion hearing need judge voluntariness with reference to an especially severe standard of proof. Nevertheless, since Jackson, state and federal courts have addressed themselves to the issue with a considerable variety of opinions.1 We granted certiorari in this case to resolve the question. 401 U.S. 992, 91 S.Ct. 1238, 28 L.Ed.2d 530 (1971).
2
Petitioner Lego was convicted of armed robbery in 1961 after a jury trial in Superior Court, Cook County, Illinois. The court sentenced him to prison for 25 to 50 years. The evidence introduced against Lego at trial included a confession he had made to police after arrest and while in custody at the station house. Prior to trial Lego sought to have the confession suppressed. He did not deny making it but did challenge that he had done so voluntarily. The trial judge conducted a hearing, out of the presence of the jury, at which Lego testified that police had beaten him about the head and neck with a gun butt. His explanation of this treatment was that the local police chief, a neighbor and former classmate of the robbery victim, had sought revenge upon him. Lego introduced into evidence a photograph that had been taken of him at the county jail on the day after his arrest. The photograph showed that petitioner's face had been swollen and had traces of blood on it. Lego admitted that his face had been scratched in a scuffle with the robbery victim but maintained that the encounter did not explain the condition shown in the photograph. The police chief and four officers also testified. They denied either beating or threatening petitioner and disclaimed knowledge that any other officer had done so. The trial judge resolved this credibility problem in favor of the police and ruled the confession admissible.2 At trial, Lego testified in his own behalf. Although he did not dispute the truth of the confession directly, he did tell his version of the events that had transpired at the police station. The trial judge instructed the jury as to the prosecution's burden of proving guilt. He did not instruct that the jury was required to find the confession voluntary before it could be used in judging guilt or innocence.3 On direct appeal the Illinois Supreme Court affirmed the conviction. People v. Lego, 32 Ill.2d 76, 203 N.E.2d 875 (1965).
3
Four years later petitioner challenged his conviction by seeking a writ of habeas corpus in the United States District Court for the Northern District of Illinois. He maintained that the trial judge should have found the confession voluntary beyond a reasonable doubt before admitting it into evidence. Although the judge had made no mention of the standard he used, Illinois law provided that a confession challenged as involuntary could be admitted into evidence if, at a hearing outside the presence of the jury, the judge found it voluntary by a preponderance of the evidence.4 In the alternative petitioner argued that the voluntariness question should also have been submitted to the jury for its separate consideration. After first denying the writ for failure to exhaust state remedies, the District Court granted a rehearing motion, concluded that Lego had no state remedy then available to him and denied relief on the merits. United States ex rel. Lego v. Pate, 308 F.Supp. 38 (1970).5 The Court of Appeals for the Seventh Circuit affirmed.6
4
* Petitioner challenges the judgment of the Court of Appeals on three grounds. The first is that he was not proved guilty beyond a reasonable doubt as required by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), because the confession used against him at his trial had been proved voluntary only by a preponderance of the evidence. Implicit in the claim is an assumption that a voluntariness hearing is designed to enhance the reliability of jury verdicts. To judge whether that is so we must return to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
5
In New York prior to Jackson, juries most often determined the voluntariness of confessions and hence whether confessions could be used in deciding guilt or innocence. Trial judges were required to make an initial determination and could exclude a confession, but only if it could not under any circumstances be deemed voluntary.7 When voluntariness was fairly debatable, either because a dispute of fact existed or because reasonable men could have drawn differing inferences from undisputed facts, the question whether the confession violated due process was for the jury. This meant the confession was introduced at the trial itself. If evidence challenging its voluntariness were adduced, the jury was instructed first to pass upon voluntariness and, if it found the confession involuntary, ignore it in determining guilt. If, on the other hand, the confession were found to be voluntary, the jury was then free to consider its truth or falsity and give the confession an appropriate weight in judging guilt or innocence.
6
We concluded that the New York procedure was constitutionally defective because at no point along the way did a criminal defendant receive a clear-cut determination that the confession used against him was in fact voluntary. The trial judge was not entitled to exclude a confession merely because he himself would have found it involuntary, and, while we recognized that the jury was empowered to perform that function, we doubted it could do so reliably. Precisely because confessions of guilt, whether coerced or freely given, may be truthful and potent evidence, we did not believe a jury could be called upon to ignore the probative value of a truthful but coerced confession; it was also likely, we thought, that in judging voluntariness itself the jury would be influenced by the reliability of a confession it considered an accurate account of the facts. 'It is now axiomatic,' we said,
7
'that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760, and even though there is ample evidence aside from the confession to support the conviction. Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Stroble v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872; Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975. Equally clear is the defendant's constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession. Rogers v. Richmond, supra.'8
8
We did not think it necessary, or even appropriate, in Jackson to announce that prosecutors would be required to meet a particular burden of proof in a Jackson hearing held before the trial judge.9 Indeed, the then-established duty to determine voluntariness had not been framed in terms of a burden of proof,10 nor has it been since Jackson was decided.11 We could fairly assume then, as we can now, that a judge would admit into evidence only those confessions that he reliably found, at least by a preponderance of the evidence, had been made voluntarily.
9
We noted in Jackson that there may be a relationship between the involuntariness of a confession and its unreliability.12 But our decision was not based in the slightest on the fear that juries might misjudge the accuracy of confessions and arrive at erroneous determinations of guilt or innocence. That case was not aimed at reducing the possibility of convicting innocent men.
10
Quite the contrary, we feared that the reliability and truthfulness of even coerced confessions could impermissibly influence a jury's judgment as to voluntariness. The use of coerced confessions, whether true or false, is forbidden because the method used to extract them offends constitutional principles. Rogers v. Richmond, 365 U.S. 534, 540—541, 81 S.Ct. 735, 739 (1961).13 The procedure we established in Jackson was designed to safeguard the right of an individual, entirely apart from his guilt or innocence, not to be compelled to condemn himself by his own utterances. Nothing in Jackson questioned the province or capacity of juries to assess the truthfulness of confessions. Nothing in that opinion took from the jury any evidence relating to the accuracy or weight of confessions admitted into evidence. A defendant has been as free since Jackson as he was before to familiarize a jury with circumstances that attend the taking of his confession, including facts bearing upon its weight and voluntariness.14 In like measure, of course, juries have been at liberty to disregard confessions that are insufficiently corroborated or otherwise deemed unworthy of belief.
11
Since the purpose that a voluntariness hearing is designed to serve has nothing whatever to do with improving the reliability of jury verdicts, we cannot accept the charge that judging the admissibility of a confession by a preponderance of the evidence undermines the mandate of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Our decision in Winship was not concerned with standards for determining the admissibility of evidence or with the prosecution's burden of proof at a suppression hearing when evidence is challenged on constitutional grounds. Winship went no further than to confirm the fundamental right that protects 'the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' Id. at 364, 90 S.Ct., at 1072. A high standard of proof is necessary, we said, to ensure against unjust convictions by giving substance to the presumption of innocence. Id., at 363, 90 S.Ct., at 1072. A guilty verdict is not rendered less reliable or less consonant with Winship simply because the admissibility of a confession is determined by a less stringent standard. Petitioner does not maintain that either his confession or its voluntariness is an element of the crime with which he was charged. He does not challenge the constitutionality of the standard by which the jury was instructed to decide his guilt or innocence; nor does he question the sufficiency of the evidence that reached the jury to satisfy the proper standard of proof. Petitioner's rights under Winship have not been violated.15
II
12
Even conceding that Winship is inapplicable because the purpose of a voluntariness hearing is not to implement the presumption of innocence, petitioner presses for reversal on the alternative ground that evidence offered against a defendant at a criminal trial and challenged on constitutional grounds must be determined admissible beyond a reasonable doubt in order to give adequate protection to those values that exclusionary rules are designed to serve. Jackson v. Denno, supra, an offspring of Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936), requires judicial rulings on voluntariness prior to admitting confessions. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), excludes confessions flowing from custodial interrogations unless adequate warnings were administered and a waiver was obtained. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), make impermissible the introduction of evidence obtained in violation of a defendant's Fourth Amendment rights. In each instance, and without regard to its probative value, evidence is kept from the trier of guilt or innocence for reasons wholly apart from enhancing the reliability of verdicts. These independent values, it is urged, themselves require a stricter standard of proof in judging admissibility.
13
The argument is straightforward and has appeal. But we are unconvinced that merely emphasizing the importance of the values served by exclusionary rules is itself sufficient demonstration that the Constitution also requires admissibility to be proved beyond reasonable doubt.16 Evidence obtained in violation of the Fourth Amendment has been excluded from federal criminal trials for many years. Weeks v. United States, supra. The same is true of coerced confessions offered in either federal or state trials. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897); Brown v. Mississippi, supra. But, from our experience over this period of time no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence. Petitioner offers nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard. Without good cause, we are unwilling to expand currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence before state juries and by revising the standards applicable in collateral proceedings. Sound reason for moving further in this direction has not been offered here nor do we discern any at the present time. This is particularly true since the exclusionary rules are very much aimed at deterring lawless conduct by police and prosecution and it is very doubtful that escalating the prosecution's burden of proof in Fourth and Fifth Amendment suppression hearings would be sufficiently productive in this respect to outweigh the public interest in placing probative evidence before juries for the purpose of arriving at truthful decisions about guilt or innocence.
14
To reiterate what we said in Jackson: when a confession challenged as involuntary is sought to be used against a criminal defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession was in fact voluntarily rendered. Thus, the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary. Of course, the States are free, pursuant to their own law, to adopt a higher standard. They may indeed differ as to the appropriate resolution of the values they find at stake.17
III
15
We also reject petitioner's final contention that, even though the trial judge ruled on his coercion claim, he was entitled to have the jury decide the claim anew. To the extent this argument asserts that the judge's determination was insufficiently reliable, it is no more persuasive than petitioner's other contentions. To the extent the position assumes that a jury is better suited than a judge to determine voluntariness, it questions the basic assumptions of Jackson v. Denno; it also ignores that Jackson neither raised any question about the constitutional validity of the so-called orthodox rule for judging the admissibility of confessions nor even suggested that the Constitution requires submission of voluntariness claims to a jury as well as a judge. Finally, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), which made the Sixth Amendment right to trial by jury applicable to the States, did not purport to change the normal rule that the admissibility of evidence is a question for the court rather than the jury. Nor did that decision require that both judge and jury pass upon the admissibility of evidence when constitutional grounds are asserted for excluding it. We are not disposed to impose as a constitutional requirement a procedure we have found wanting merely to afford petitioner a second forum for litigating his claim.
16
The decision of the Court of Appeals is affirmed.
17
Affirmed.
18
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
19
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
20
When the prosecution, state or federal, seeks to put in evidence an allegedly involuntary confession, its admissibility is determined by the command of the Fifth Amendment that '(n)o person . . . shall be compelled in any criminal case to be a witness against himself.' Davis v. North Carolina, 384 U.S. 737, 740, 86 S.Ct. 1761 (1966); Malloy v. Hogan, 378 U.S. 1, 7—8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964); Bram v. United States, 168 U.S. 532, 542—543, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897). This right against compulsory self-incrimination is the 'essential mainstay' of our system of criminal prosecution, Malloy v. Hogan, supra, at 7, 84 S.Ct., at 1493 'a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth,' Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 739 (1961). What is thereby protected from governmental invasion is, quite simply, 'the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will.' Malloy v. Hogan, supra, at 8, 84 S.Ct., at 1493. Hence, a confession is involuntary and inadmissible unless it is 'the product of a rational intellect and a free will.' Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280 (1960); see Reck v. Pate, 367 U.S. 433, 440, 81 S.Ct. 1541, 1546, 6 L.Ed.2d 948 (1961).
21
Ideally, of course, a defendant's compelled utterance would never be admitted into evidence against him. As we said in Jackson v. Denno, 378 U.S. 368, 376, 84 S.Ct. 1774, 1780, (1964), it is 'axiomatic' that a criminal conviction cannot stand if it 'is founded, in whole or in part, upon an involuntary confession . . . even though there is ample evidence aside from the confession to support the conviction.' Yet I doubt that informed observers of the criminal process would deny that at least some compelled utterances slip through, even assuming scrupulous adherence to constitutional standards and the most rigorous procedural protections. Jackson was an attempt to move that reality somewhat closer to the ideal. We there rejected the New York rule because it 'did not afford a reliable determination of the voluntariness of the confession offered in evidence at the trial' and consequently 'did not adequately protect (a defendant's) right to be free of a conviction based upon a coerced confession.' Id., at 377, 84 S.Ct., at 1781. As the Court today points out, '(t)he procedure we established in Jackson was designed to safeguard the right of an individual, entirely apart from his guilt or innocence, not to be compelled to condemn himself by his own utterances.' Ante, at 485.
22
There is no need to dwell upon the importance our American concept of justice attaches to preserving the integrity of the constitutional privilege. Both the rule that automatically reverses a conviction when an involuntary confession was admitted at trial and the procedure established in Jackson for determining whether a confession was voluntary are means to further the end that no utterance of a defendant not the product of his own free choice will be used against him. The Court today reaffirms what we held in Jackson: '(W)hen a confession challenged as involuntary is sought to be used against a criminal defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession was in fact voluntarily rendered.' Ante, at 489. But the Court goes on to hold that it follows from Jackson that 'the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary.' Ibid. I disagree. In my view, the rationale of Jackson requires the conclusion that the preponderance standard does not provide sufficient protection against the danger that involuntary confessions will be employed in criminal trials.
23
A Jackson hearing normally presents the factfinder with conflicting testimony from the defendant and law enforcement officers about what occurred during the officers' interrogation of the defendant. The factfinder's resolution of this conflict is often, as a practical matter, the final resolution of the voluntariness issue. Jackson, supra, at 390—391, 84 S.Ct., at 1788. This case is a typical example. Petitioner testified that he confessed because the police had beaten him; the police testified that there was no beating. As the Court notes, '(t)he trial judge resolved this credibility problem in favor of the police and ruled the confession admissible. Ante, at 480. When the question before the factfinder is whether to believe one or the other of two self-serving accounts of what has happened, it is apparent that the standard of persuasion will in many instances be of controlling significance. See Speiser v. Randall, 357 U.S. 513, 525—526, 78 S.Ct. 1332, 1341 1342, 2 L.Ed.2d, 1460 (1958). Although the Court suggests 'that federal rights have (not) suffered from determining admissibility by a preponderance of the evidence' and that there has been no showing 'that admissibility rulings have been unreliable . . . because not based on some higher standard,' ante, at 488, I do not think it can be denied, given the factual nature of the ordinary voluntariness determination, that permitting a lower standard of proof will necessarily result in the admission of more involuntary confessions than would be admitted were the prosecution required to meet a higher standard. The converse, of course, is also true. Requiring the higher standard means that some voluntary confessions will be excluded as involuntary even though they would have been found voluntary under the lower standard.
24
The standard of proof required for a criminal conviction presents a similar situation, yet we have held that guilt must be established by proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361—364, 90 S.Ct. 1068, 1070—1072 (1970); see id., at 370—372, 90 S.Ct., at 1075—1076 (Harlan, J., concurring.) Permitting proof by a preponderance of the evidence would necessarily result in the conviction of more defendants who are in fact innocent. Conversely, imposing the burden of proof beyond a reasonable doubt means that more defendants who are in fact guilty are found innocent. It seems to me that the same considerations that demand the reasonable-doubt standard when guilt or innocence is at stake also demand that standard when the question is the admissibility of an allegedly involuntary confession.
25
We permit proof by a preponderance of the evidence in civil litigation because 'we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor.' Id., at 371, 90 S.Ct., at 1076 (Harlan, J., concurring). We do not take that view in criminal cases. We said in Winship that the reasonable-doubt standard 'is a prime instrument for reducing the risk of conviction resting on factual error. The standard provides concrete substance for the presumption of innocence . . ..' Id., at 363, 90 S.Ct., at 1072. As Mr. Justice Harlan put it in his concurring opinion, the requirement of proof beyond a reasonable doubt is 'bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.' Id., at 372, 90 S.Ct., at 1076.
26
If we permit the prosecution to prove by a preponderance of the evidence that a confession was voluntary, then, to paraphrase Mr. Justice Harlan, we must be prepared to justify the view that it is no more serious in general to admit involuntary confessions than it is to exclude voluntary confessions. I am not prepared to justify that view. Compelled self-incrimination is so alien to the American sense of justice that I see no way that such a view could ever be justified. If we are to provide 'concrete substance' for the command of the Fifth Amendment that no person shall be compelled to condemn himself, we must insist, as we do at the trial of guilt or innocence, that the prosecution prove that the defendant's confession was voluntary beyond a reasonable doubt.* In my judgment, to paraphrase Mr. Justice Harlan again, the command of the Fifth Amendment reflects the determination of our society that it is worse to permit involuntary self-condemnation than it is to deprive a jury of probative evidence. Just as we do not convict when there is a reasonable doubt of guilt, we should not permit the prosecution to introduce into evidence a defendant's confession when there is a reasonable doubt that it was the product of his free and rational choice.
27
I add only that the absolute bar against the admission of a defendant's compelled utterance at his criminal trial is fundamentally an expression of the American commitment to the moral worth of the individual. What we said in Winship bears repeating here. '(U)se of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.' Id., 397 U.S., at 364, 90 S.Ct., at 1072. I believe that it is just as critical to our system of criminal justice that when a person's words are used against him, no reasonable doubt remains that he spoke of his own free will.
1
State courts that have considered the question since Jackson have adopted a variety of standards, most of them founded upon state law. Many have sanctioned a standard of proof less strict than beyond a reasonable doubt, including proof of voluntariness by a preponderance of the evidence or to the satisfaction of the court or proof of voluntariness in fact. e.g., Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965); State v. Dillon, 93 Idaho 698, 471 P.2d 553 (1970), cert. denied. 401 U.S. 942, 91 S.Ct. 947, 28 L.Ed.2d 223 (1971); People v. Harper, 36 Ill.2d 398, 223 N.E.2d 841 (1967); State v. Milow, 199 Kan. 576, 433 P.2d 538 (1967); Barnhart v. State, 5 Md.App. 222, 246 A.2d 280 (1968); Commonwealth v. White, 353 Mass. 409, 232 N.E.2d 335 (1967); State v. Nolan, 423 S.W.2d 815 (Mo.1968); State v. White, 146 Mont. 226, 405 F.2d 761 (1965), cert. denied, 384 U.S. 1023, 86 S.Ct. 1955, 16 L.Ed.2d 1026 (1966); State v. Brewton, 238 Or. 590, 395 P.2d 874 (1964); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968); Monts v. State, 218 Tenn. 31, 400 S.W.2d 722 (1966); State v. Davis, 73 Wash.2d 271, 438 P.2d 185 (1968).
Other States, using state law or not specifying a basis, require proof beyond a reasonable doubt. E.g., State v. Ragsdale, 249 La. 420, 187 So.2d 427 (1966), cert. denied, 385 U.S. 1029, 87 S.Ct. 758, 17 L.Ed.2d 676 (1967); State v. Keiser, 274 Minn. 265, 143 N.W.2d 75 (1966); State v. Yough, 49 N.J. 587, 231 A.2d 598 (1967); People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.W.2d 179 (1965); State v. Thundershield, 83 S.D. 414, 160 N.W.2d 408 (1968); State ex rel. Goodchild v. Burke, 27 Wis.2d 244, 133 N.W.2d 753 (1965), cert. denied, 384 U.S. 1017, 86 S.Ct. 1941, 16 L.Ed.2d 1039 (1966).
Two federal courts have held as an exercise of supervisory power that voluntariness must be proved beyond a reasonable doubt. Ralph v. Warden, 438 F.2d 786, 793 (CA4 1970), clarifying United States v. Inman, 352 F.2d 954 (CA4 1965); Pea v. United States, 130 U.S.App.D.C. 66, 397 F.2d 627 (1967); cf. United States v. Schipani, 289 F.Supp. 43 (E.D.N.Y.1968), aff'd, 414 F.2d 1262 (CA2 1969), cert. denied, 397 U.S. 922, 90 S.Ct. 902, 25 L.Ed.2d 102 (1970), requiring the Government to prove beyond a reasonable doubt that certain evidence was not tainted by violation of the Fourth Amendment.
2
In ruling the confession admissible, the judge stated:
'The petitioner has admitted under oath he had a struggle with the complaining witness over the gun; he was wounded, obtained a facial wound. The Officers testified he was bloody at the time he was arrested.
'I don't believe the defendant's testimony at all that he was beaten up by the Police. The condition he is in is well explained by the defendant himself.'
3
Illinois followed what we described in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), as 'the orthodox rule, under which the judge himself solely and finally determines the voluntariness of the confession . . ..' Id., at 378, 84 S.Ct. at 1781. While the procedures of all the States could not be neatly classified, we noted that some followed the Massachusetts procedure whereby the judge himself first resolves evidentiary conflicts and determines whether a confession is in fact voluntary. If he is unable so to conclude, the confession may not be admitted into evidence. If judged voluntary and therefore admissible, the jury must also determine the coercion issue and is instructed to ignore a confession it finds involuntary. Id., at 378 n. 8, 84 S.Ct., at 1781. Other States had adopted the New York procedure at issue in Jackson. Our decision in Jackson case no doubt upon the orthodox and Massachusetts procedures but did call into question the practice of every State that did not clearly follow one of these procedures. A thorough tabulation of what States did in the wake of Jackson appears in 3 J. Wigmore, Evidence 585—593 (J. Chadbourn rev. 1970).
4
People v. Wagoner, 8 Ill.2d 188, 133 N.E.2d 24 (1956); People v. Thomlison, 400 Ill. 555, 81 N.E.2d 434 (1948).
5
Respondent makes no contention here that petitioner either waived the right to adjudicate his federal claims or deliberately bypassed state procedures for testing those claims. Cf. Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963).
6
The Seventh Circuit's affirmance is unreported. United States ex rel. Lego v. Pate, No. 18313 (CA7 Oct. 8, 1970).
7
A more thorough description of the New York procedure is found in Jackson v. Denno, 378 U.S., at 377—391, 84 S.Ct., at 1780 1789.
8
Jackson v. Denno, 378 U.S., at 376—377, 84 S.Ct., at 1780.
9
'Judge' is used here and throughout the opinion to mean a factfinder, whether trial judge or jury, at a voluntariness hearing. The proscription against permitting the jury that passes upon guilt or innocence to judge voluntariness in the same proceeding does not preclude the States from impaneling a separate jury to determine voluntariness. Jackson v. Denno, 378 U.S., at 391 n. 19, 84 S.Ct., at 1788.
10
See, e.g., Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958).
11
See, e.g., Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); Greenwald v. Wisconsin, 390 U.S. 519, 88 S.Ct. 1152, 20 L.Ed.2d 77 (1968); Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); cf. Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971).
12
We noted that coerced confessions are forbidden in part because of their 'probable unreliability.' Jackson v. Denno, 378 U.S., at 385—386, 84 S.Ct., at 1785. However, it had been settled when this Court decided Jackson that the exclusion of unreliable confessions is not the purpose that a voluntariness hearing is designed to serve. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). The sole issue in such a hearing is whether a confession was coerced. Whether it be true or false is irrelevant; indeed, such an inquiry is forbidden. The judge may not take into consideration evidence that would indicate that the confession, though compelled, is reliable, even highly so. Id., at 545, 81 S.Ct., at 741. As difficult as such tasks may be to accomplish, the judge is also duty-bound to ignore implications of reliability in facts relevant to coercion and to shut from his mind any internal evidence of authenticity that a confession itself may bear.
13
In Jackson, 378 U.S., at 377—391, 84 S.Ct., at 1780—1788, we traced the genesis of the view that due process forbids the use of coerced confessions, whether or not reliable. The Court had departed from that view in Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953), whose premise was that a confession is excludable because of its inherent untrustworthiness. The Stein premise was repudiated in Rogers v. Richmond and Rogers was reaffirmed in Davis v. North Carolina, 384 U.S., at 739, 86 S.Ct., at 1763, and Johnson v. New Jersey, 384 U.S. 719, 729 n. 9, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882 (1966). That case continues to serve as the basis for evaluating coercion claims. See cases cited in n. 11, supra.
14
This is the course that petitioner pursued. Cf. Jackson v. Denno, 378 U.S., at 386 n. 13, 84 S.Ct., at 1785. Although 18 U.S.C. § 3501(a) is inapplicable here, it is relevant to note the provisions of that section:
'(a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.'
15
Nothing is to be gained from restating the constitutional rule as requiring proof of guilt beyond a reasonable doubt on the basis of constitutionally obtained evidence and then arguing that rights under Winship are diluted unless admissibility is governed by a high standard. Transparently, this assumes the question at issue, which is whether a confession is admissible if found voluntary by a preponderance of the evidence. United States v. Schipani, supra, n. 1, followed this unsatisfactory course in a Fourth Amendment case but stopped short of basing the decision on the Constitution.
16
It is no more persuasive to impose the stricter standard of proof as an exercise of supervisory power than as a constitutional rule. Cf. Ralph v. Warden, supra, n. 1, clarifying United States v. Inman, supra, n. 1; Pea v. United States, supra, n. 1.
17
See cases cited in n. 1, supra.
*
My view that the reasonable-doubt standard must be imposed upon the prosecution does not depend upon whether that standard would be more effective than some lower standard in deterring police misconduct. When a defendant challenges his confession as involuntary, 'the constitutional inquiry is not whether the conduct of state officers in obtaining the confession was shocking, but whether the confession was 'free and voluntary . . .." Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). It is true that the defendant will frequently allege police misconduct, as petitioner did here. Nevertheless, as we said in townsend v. Sain, 372 U.S. 293, 308, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963), '(a)ny questioning by police officers which in fact produces a confession which is not the product of a free intellect renders that confession inadmissible.' (Emphasis in original.)
| 01
|
404 U.S. 519
92 S.Ct. 594
30 L.Ed.2d 652
Francis HAINES, Petitioner,v.Otto J. KERNER, former Governor, State of Illinois, et al.
No. 70—5025.
Argued Dec. 6, 1971.
Decided Jan. 13, 1972.
Rehearing Denied Feb. 22, 1972.
See 405 U.S. 948, 92 S.Ct. 963.
Stanley A. Bass, New York City, for petitioner.
Warren K. Smoot, Chicago, Ill., for respondents, pro hac vice, by special leave of Court.
PER CURIAM.
1
Petitioner, an inmate at the Illinois State Penitentiary, Menard, Illinois, commenced this action against the Governor of Illinois and other state officers and prison officials under the Civil Rights Act of 1871, 17 Stat. 13, 42 U.S.C. § 1983, and 28 U.S.C. § 1343(3), seeking to recover damages for claimed injuries and deprivation of rights while incarcerated under a judgment not challenged here. Petitioner's pro se complaint was premised on alleged action of prison officials placing him in solitary confinement as a disciplinary measure after he had struck another inmate on the head with a shovel following a verbal altercation. The assault by petitioner on another inmate is not denied. Petitioner's pro se complaint included general allegations of physical injuries suffered while in disciplinary confinement and denial of due process in the steps leading to that confinement. The claimed physical suffering was aggravation of a preexisting foot injury and a circulatory ailment caused by forcing him to sleep on the floor of his cell with only blankets.
2
The District Court granted respondents' motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim upon which relief could be granted, suggesting that only under exceptional circumstances should courts inquire into the internal operations of state penitentiaries and concluding that petitioner had failed to show a deprivation of federally protected rights. The Court of Appeals affirmed, 427 F.2d 71, emphasizing that prison officials are vested with 'wide discretion' in disciplinary matters. We granted certiorari and appointed counsel to represent petitioner. The only issue now before us is petitioner's contention that the District Court erred in dismissing his pro se complaint without allowing him to present evidence on his claims.
3
Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson, 355 U.S. 41, 45—46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). See Dioguardi v. Durning, 139 F.2d 774 (CA2 1944).
4
Accordingly, although we intimate no view whatever on the merits of petitioner's allegations, we conclude that he is entitled to an opportunity to offer proof. The judgment is reversed and the case is remanded for further proceedings consistent herewith.
5
Reversed and remanded.
6
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
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404 U.S. 496
92 S.Ct. 582
30 L.Ed.2d 632
James E. GROPPI, Petitioner,v.Jack LESLIE, Sheriff of Dane County.
No. 70—112.
Argued Nov. 10, 1971.
Decided Jan. 13, 1972.
Syllabus
Wisconsin legislative resolution citing petitioner for contempt for conduct on the floor of the State Assembly that occurred two days previous to the contempt resolution and sentencing him to confinement held violative of due process, since petitioner, who was readily available, was given no notice before the resolution was adopted or afforded any opportunity to respond by way of defense or extenuation. Pp. 499—507.
436 F.2d 326 and 331, reversed.
William M. Coffey, Milwaukee, Wis., for petitioner.
Sverre O. Tinglum, Asst. Atty. Gen., Madison, Wis., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted the writ of certiorari to review the holding of the Court of Appeals, for the Seventh Circuit, denying petitioner relief in habeas corpus proceedings after the District Court had granted relief.
2
On October 1, 1969, the Assembly of the Wisconsin Legislature passed a resolution citing petitioner for contempt and directing his confinement in the Dane County jail for a period of six months or for the duration of the 1969 Regular Session of the legislature, whichever was shorter. The resolution recited that petitioner had, two days previously, led a gathering of people which, by its presence on the floor of the Assembly during a regular meeting in violation of an Assembly Rule, 'prevented the Assembly from conducting public business and performing its constitutional duty.' The resolution contained a finding that petitioner's actions constituted 'disorderly conduct in the immediate view of the house and directly tending to interrupt its proceedings' which the Assembly was authorized to punish under the State Constitution and statutes.1
3
The record before us contains little to flesh out the recitations of the contempt resolution with the details of petitioner's conduct on the day of September 29, 1969. The Wisconsin Supreme Court, in its opinion denying petitioner's application for habeas corpus, State ex rel. Groppi v. Leslie, 44 Wis.2d 282, 171 N.W.2d 192, took judicial notice that petitioner's conduct was designed to protest cuts in the state budget for certain welfare programs, and that the 'occupation' of the Assembly chamber by petitioner and his supporters continued from midday to 'well toward midnight,' during all of which time the Assembly was prevented from conducting its lawful business.2
4
The contempt resolution was adopted without giving notice to petitioner or affording him an opportunity to present a defense or information in mitigation. A copy of the resolution was then served on petitioner who, at the time the resolution was passed, was already confined in the Dane County jail following his arrest on disorderly conduct charges arising out of the same incident as that underlying the resolution.3 Petitioner's confinement after he was served with the resolution was pursuant to its authority.
5
Petitioner then commenced actions in both state and federal courts contending that his confinement violated his constitutional rights, and seeking his release. Petitioner's applications for habeas corpus were denied by the Circuit Court for Dane County and the Wisconsin Supreme Court. However, after the state courts had acted, the United States District Court for the Western District of Wisconsin granted petitioner's federal habeas application. The District Court was of the view that petitioner had been denied due process of law guaranteed by the Fourteenth Amendment by the failure of the Assembly to accord him 'some minimal opportunity to appear and to respond to a charge' prior to the imposition of punishment for contempt. On appeal, the Court of Appeals reversed the holding of the District Court; the holding of the panel was adopted by a narrowly divided court on rehearing en banc. We granted certiorari. For the reasons stated herein, we conclude that petitioner was denied due process of law by the procedures employed in punishing him for contempt, and we reverse the judgment of the Court of Appeals.
6
* The past decisions of this Court expressly recognizing the power of the Houses of the Congress to punish contemptuous conduct leave little question that the Constitution imposes no general barriers to the legislative exercise of such power. E.g., Jurney v. MacCracken, 294 U.S. 125, 55 S.Ct. 375, 79 L.Ed. 802 (1935); Anderson v. Dunn, 6 Wheat. 204, 5 L.Ed. 242 (1821). There is nothing in the Constitution that would place greater restrictions on the States than on the Federal Government in this regard. See Kilbourn v. Thompson, 103 U.S. 168, 199, 26 L.Ed. 377 (1881). We are therefore concerned only with the procedures that the Due Process Clause of the Federal Constitution requires a state legislature to meet in imposing punishment for contemptuous conduct committee in its presence.
7
This Court has often recognized that the requirements of due process cannot be ascertained through mechanical application of a formula. See, e.g., Cafeteria and Restaurant Workers Union, Local 473, AFL—CIO v. McElroy, 367 U.S. 886, 894—895, 81 S.Ct. 1743, 1748—1749, 6 L.Ed.2d 1230 (1961); Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960). Mr. Justice Frankfurter, in another context, aptly stated that due process 'is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess. . ..' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162—163, 71 S.Ct. 624, 644, 95 L.Ed. 817 (1951) (concurring opinion). Courts must be sensitive to the nature of a legislative contempt proceeding and the 'possible burden on that proceeding' that a given procedure might entail. Hannah v. Larche, 363 U.S., at 442, 80 S.Ct., at 1515. Legislatures are not constituted to conduct full-scale trials or quasi-judicial proceedings and we should not demand that they do so although they possess inherent power to protect their own processes and existence by way of contempt proceedings. For this reason, the Congress of the United States, for example, no longer undertakes to exercise its contempt powers in all cases but elects to delegate that function to federal courts. 52 Stat. 942, 2 U.S.C. §§ 192—194.
8
The potential for disrupting or immobilizing the vital legislative processes of State and Federal Governments that would flow from a rule requiring a full-blown legislative 'trial' prior to the imposition of punishment for contempt of the legislature is a factor entitled to very great weight; this is particularly true where the contemptuous conduct, as here, is committed directly in the presence of the legislative body. The past decisions of this Court strongly indicate that the panoply of procedural rights that are accorded a defendant in a criminal trial has never been thought necessary in legislative contempt proceedings. The customary practice in Congress has been to provide the contemnor with an opportunity to appear before the bar of the House, or before a committee, and give answer to the misconduct charged against him. See Jurney v. MacCracken, 294 U.S., at 143—144, 55 S.Ct., at 376—377; Kilbourn v. Thompson, 103 U.S., at 173, 174; Anderson v. Dunn, 6 Wheat., at 209—211; Marshall v. Gordon, 243 U.S. 521, 532, 37 S.Ct. 448, 449, 61 L.Ed. 881 (1917).4 Such would appear to have been the general practice in colonial times, and in the would appear to have been the general practice in colonial times, and in the early state legislatures.5 This practice more nearly resembles the traditional right of a criminal defendant to allocution prior to the imposition of sentence than it does a criminal prosecution. See Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961).
II
9
In this case, however, there is no occasion to define or delineate precisely what process is due and must be accorded to a contemnor prior to the legislative imposition of punishment for contemptuous conduct. Here, the Wisconsin Assembly, two days after the conduct had occurred, found petitioner in contempt and sentenced him to confinement without giving him notice of any kind or opportunity to answer. There is no question of his having fled or become otherwise unavailable for, as we have noted, he was confined in the county jail at the time, and could easily have been given notice, if indeed not compelled, to appear before the Assembly. We find little in our past decisions that would shed light on the precise problem, but nothing to give warrant to the summary procedure employed here, coming as it did two days after the contempt. Indeed, we have stated time and again that reasonable notice of a charge and an opportunity to be heard in defense before punishment is imposed are 'basic in our system of jurisprudence.' In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948). See, e.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S., at 143, 164—165, 171—172, 178, 185, 71 S.Ct., at 633, 644—645, 648—649, 652, 655 (concurring opinions of Black, Frankfurter, Douglas, and Jackson, JJ.); Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948). We have emphasized this fundamental principle where rights of less standing than personal liberty were at stake. E.g., Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 776, 82 L.Ed. 1129 (1938); Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the Court Stated:
10
'Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.' 339 U.S., at 313, 70 S.Ct., at 656.
11
Although this language was addressed to judicial adjudication, hostorical practice would indicate that legislatures themselves have recognized the value of prior notice and hearing in cases of legislative contempt.
12
In exercise of the right to be heard, however briefly—the length and nature of which would traditionally be left largely to the legislative body—the putative contemnor might establish, for example, that it was a case of mistaken identity, or, also by way of affirmative defense, that he was mentally incompetent.6 Other matters in explanation or mitigation might lessen the harshness of the legislative judgment or avoid punishment altogether.
III
13
Wisconsin, however, argues that the power of a legislature to summarily punish for contempts committed in its immediate presence follows logically from the recognized power of courts in that respect. E.g., Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888). Even if it be assumed that courts and legislatures are fully analogous in this respect, the recorded cases dealing with the power of a court to impose summary punishment for contempt committed in its immediate presence show that such power has not ordinarily been exercised under conditions such as those here, with a lapse of two days following the event and without notice or opportunity for hearing of any kind. A legislature, like a court, must, of necessity, possess the power to act 'immediately' and 'instantly' to quell disorders in the chamber if it is to be able to maintain its authority and continue with the proper dispatch of its business. In re Oliver, 333 U.S., at 274—275, 68 S.Ct., at 508 509; Ex parte Terry, 128 U.S., at 308, 310, 9 S.Ct., at 81; Johnson v. Mississippi, 403 U.S. 212, 214, 91 S.Ct. 1778, 1779, 29 L.Ed.2d 423 (1971); Mayberry v. Pennsylvania, 400 U.S. 455, 463, 91 S.Ct. 499, 504, 27 L.Ed.2d 532 (1971). Where, however, the contemptuous episode has occurred two days previously, it is much more difficult to argue that action without notice or hearing of any kind is necessary to preserve order and enable a legislative body to proceed with its business.
14
The function of the contempt process by a legislative body is perhaps more related to deterrence of those disposed to create disorders than to restoring order. But the deterrence function can equally be served—perhaps even better—by giving notice and bringing the contemnor before the body and giving opportunity to be heard before being declared in contempt and sentenced.7
15
Where a court acts immediately to punish for contemptuous conduct committed under its eye, the contemnor is present, of course. There is then no question of identity, nor is hearing in a formal sense necessary because the judge has personally seen the offense and is acting on the basis of his own observations.8
16
Moreover, in such a situation, the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution. See Levine v. United States, 362 U.S. 610, 613—614, 80 S.Ct. 1038, 1041—1042, 4 L.Ed.2d 989 (1960); Brown v. United States, 359 U.S. 41, 52, 79 S.Ct. 539, 547, 3 L.Ed.2d 609 (1959); United States v. Sacher, 182 F.2d 416, 418 (CA2 1950), aff'd, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952). Even in those circumstances, as we have noted, the conduct and utterance might be found excusable by a legislature or a court should it develop that the contemnor was suffering from some mental disorder rendering him unable to conform his conduct to requirements of the law and conventional behavior. Where, however, a legislative body acts two days after the event, in the absence of the contemnor, and without notice to him, there is no assurance that the members of the legislature are acting, as a judge does in a contempt case, on the basis of personal observation and identification of the contemnor engaging in the conduct charged, nor is there any opportunity whatsoever for him to speak in defense or mitigation, if he is in fact the offender.
17
Ex parte Terry, supra, does not control this case. There the circuit court acted promptly after the contemnor—who was a lawyer had voluntarily absented himself from the courtroom and while he was present in an adjacent room of the court building. This Court concluded that the contemnor could not defeat the jurisdiction of the circuit court to act as soon as reasonably possible to punish the contempt by his voluntary departure from the courtroom. 128 U.S., at 310—311, 9 S.Ct., at 81—82. The Court reasoned that
18
'The departure of the petitioner from the courtroom to another room, near by, in the same building, was his voluntary act. And his departure, without making some apology for or explanation of, his conduct might justly be held to aggravate his offence, and to make it plain that, consistently with the public interests, there should be no delay upon the part of the court in exerting its power to punish.' Id., at 311, 9 S.Ct., at 82.
19
Dealing only with the narrow circumstances present in Terry, the Court expressly reserved the question whether the circuit court would have had the power to proceed on a subsequent day without according the contemnor an opportunity to be heard. Id., at 314, 9 S.Ct., at 83. By way of contrast, the resolution in this case was, as we have noted, adopted two days after the event and while petitioner was being detained in the county jail in the same city, and hence available to be served with notice. In Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952), the Court approved the trial judge's action in waiting until the end of a nine-month trial to summarily hold defense counsel9 in contempt for breaches committed during the trial. However, the Court was careful to observe that an immediate holding of contempt during the trial might have prejudiced the defendants in the eyes of the jury or otherwise impeded their advocacy. Moreover, the contemnors were present throughout the course of the trial, were repeatedly warned by the trial judge that their conduct was contemptuous, were advised that they could be called to account later,10 and were given an opportunity to speak.11
20
At a very early stage in our history this Court stated that the legislative contempt power should be limited to '(t)he least possible power adequate to the end proposed.' Anderson v. Dunn, 6 Wheat., at 231; In re Oliver, 333 U.S., at 274, 68 S.Ct., at 508. While a different result might well follow had the Wisconsin Assembly acted immediately upon occurrence of the contemptuous conduct and while the contemnor was in the chamber,12 or nearby within the Capitol building, as in Terry, we conclude that the procedures employed in this case were beyond the legitimate scope of that power because of the absence of notice or any opportunity to respond. The judgment of the Court of Appeals is reversed.
21
Reversed.
22
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
1
The text of the October 1 resolution was as follows:
'1969 Spec. Sess.
'ASSEMBLY RESOLUTION
'Citing James E. Groppi for contempt of the Assembly and directing his commitment to the Dane county jail.
'In that James E. Groppi led a gathering of people on September 29, 1969, which by its presence on the floor of the Assembly during a meeting of the 1969 regular session of the Wisconsin Legislature in violation of Assembly Rule 10 prevented the Assembly from conducting public business and performing its constitutional duty; now, therefore, be it
'Resolved by the Assembly, That the Assembly finds that the above-cited action by James E. Groppi constituted 'disorderly conduct in the immediate view of the house and directly tending to interrupt its proceedings' and is an offense punishable as a contempt under Section 13.26(1)(b) of the Wisconsin Statutes and Article IV, Section 8 of the Wisconsin Constitution and therefore:
'(1) Finds James E. Groppi guilty of contempt of the Assembly; and
'(2) In accordance with Sections 13.26 and 13.27 of the Wisconsin Statutes, orders the imprisonment of James E. Groppi for a period of 6 months, or for the duration of the 1969 regular session, whichever is briefer, in the Dane county jail and directs the sheriff of Dane county to seize said person and deliver him to the jailer of the Dane county jail; and, be it further
'Resolved, That the Assembly directs that a copy of this resolution be transmitted to the Dane county district attorney for further action by him under Section 13.27(2) of the Wisconsin Statutes; and, be it further
'Resolved, That the attorney general is respectfully requested to represent the Assembly in any litigation arising herefrom.'
Article IV, § 8, Wisconsin Constitution provides in part:
'Each house may determine the rules of its own proceedings, punish for contempt and disorderly behavior . . ..'
Section 13.26, Wis.Stat. (1967), provides in part:
'(1) Each house may punish as a contempt, by imprisonment, a breach of its privileges or the privileges of its members . . . for . . .
'(b) Disorderly conduct in the immediate view of the house and directly tending to interrupt its proceedings.
'(2) The term of imprisonment a house may impose under this section shall not extend beyond the same session of the legislature.'
2
On oral argument, counsel for petitioner conceded these facts. The paucity of the record may be attributed to the fact that the District Court acted on the pleadings without an evidentiary hearing.
3
Tr. of Oral Arg. 4, 27. Petitioner was subsequently tried in County Court on the disorderly conduct charge. He was discharged by the court after the jury was unable to reach a verdict.
4
See generally 2 A. Hinds, Precedents of the House of Representatives, cc. 51, 52; E. Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress to Investigate and Punish for Contempt (1928).
Hinds discusses an assault by one reporter on another on the floor of the House on June 11, 1836. The House did not proceed immediately to hold the party in contempt, but appointed a select committee to investigate the matter. The contemnor appeared before the committee and admitted his offense. Before it acted on the report of the committee by passing a contempt resolution, the House brought the contemnor before the Bar of the House. Hinds, supra, at § 1630. Hinds also discusses numerous instances of 'direct' contempts committed by members of the House in which the contemnor was afforded an opportunity to speak in his behalf. See §§ 1642—1643, 1647, 1648, 1650—1653, 1657, 1665.
5
See M. Clarke, Parliamentary Privilege in the American Colonies 103—105, 109—111 and n. 47, 112—113 (1943); Potts, Power of Legislative Bodies to Punish for Contempt, 74 U.Pa.L.Rev. 691, 704—705, 707, 711—712, 716, 718, 719—722, 724—725 (1926).
6
In the latter case, a legislative body, like a court, might direct a psychiatric examination. It can be assumed that one so disoriented as not to appreciate the nature of his acts would not be punished for contemptuous conduct.
7
Under circumstances such as those in this case, neither a court nor a legislative body has any obligation to afford a contemnor a forum to expound his political, economic, or social views; but this does not mean that some brief period to present matter specifically in defense, extenuation, or mitigation is not required.
8
The Court has been careful to limit strictly the exercise of the summary contempt power to cases in which it was clear that all of the elements of misconduct were personally observed by the judge. See Johnson v. Mississippi, 403 U.S. 212, 214—215, 91 S.Ct. 1778, 1779—1780, 29 L.Ed.2d 423 (1971); In re Oliver, 333 U.S. 257, 275—276, 68 S.Ct. 499, 508—509, 92 L.Ed. 682 (1948).
9
One of the contemnors was a layman who had acted as his own lawyer.
10
182 F.2d, at 428.
11
Id., at 418. Although he imposed sentence before hearing the contemnors, the trial judge would, no doubt have modified his action had their statements proved persuasive. See United States v. Galante, 298 F.2d 72, 76 (CA2 1962) (Friendly, J., concurring and dissenting). Modification of contempt penalties is common where the contemnor apologizes or presents matter in mitigation.
12
The present practice of Parliament is described in E. May, The Law, Privileges, Proceedings and Usage of Parliament (17th ed. 1964) as follows:
'When the contempt is committed in the actual view of either House, as, for example, where a witness prevaricates, gives false evidence or refuses to answer, the House proceeds at once, without hearing the offender, unless by way of apology or to manifest his contrition, to punish him for his contempt.' Id., at 133 (emphasis added).
| 34
|
30 L.Ed.2d 642
92 S.Ct. 609
404 U.S. 508
CALIFORNIA MOTOR TRANSPORT CO. et al., Petitioners,v.TRUCKING UNLIMITED et al.
No. 70—92.
Argued Nov. 10, 1971.
Decided Jan. 13, 1972.
Syllabus
Respondent highway carriers filed this civil action under § 4 of the Clayton Act for injunctive relief and damages against petitioner highway carriers charging that petitioners conspired to monopolize the transportation of goods by instituting state and federal proceedings to resist and defeat applications by respondents to acquire, transfer, or register operating rights. Respondents alleged that the purpose of the conspiracy was 'putting their competitors . . . out of business, of weakening such competitors, of destroying, eliminating and weakening existing and potential competition, and of monopolizing the highway common carrier business in California and elsewhere,' and deterring respondents from having free and unlimited access to the agencies and the courts. The District Court dismissed the complaint for failure to state a cause of action but the Court of Appeals reversed. Held: While any carrier has the right of access to administrative agencies and courts to defeat applications of competitors for certificates as highway carriers, and its purpose to eliminate an applicant as a competitor may be implicit in such opposition, its First Amendment rights are not immunized from regulation when they are used as an integral part of conduct violative of the antitrust laws. If the allegations that petitioner combined to harass and deter respondents from having 'free and unlimited access' to agencies and courts, and to defeat that right by massive, concerted and purposeful group activities are established as facts, a violation of the antitrust laws will have been demonstrated, and it is immaterial that the means used in violation may be lawful. Pp. 509—516.
432 F.2d 755, affirmed and remanded for trial.
Boris H. Lakustav, San Francisco, Cal., for petitioners.
Michael N. Khourie, San Francisco, Cal., for respondents.
Opinion of the Court by Mr. Justice DOUGLAS, announced by Mr. Chief Justice BURGER.
1
This is a civil suit under § 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, for injunctive relief and damages instituted by respondents, who are highway carriers operating in California, against petitioners, who are also highway carriers operating within, into, and from California. Respondents and petitioners are, in other words, competitors. The charge is that the petitioners conspired to monopolize trade and commerce in the transportation of goods in violation of the antitrust laws. The conspiracy alleged is a concerted action by petitioners to institute state and federal proceedings to resist and defeat applications by respondents to acquire operating rights or to transfer or register those rights. These activities, it is alleged, extend to rehearings and to reviews or appeals from agency or court decisions on these matters.
2
The District Court dismissed the complaint for failure to state a cause of action, 1967 Trade Cas. 72,298. The Court of Appeals reversed, 432 F.2d 755. The case is here on a petition for a writ of certiorari, which we granted. 402 U.S. 1008, 91 S.Ct. 2188, 29 L.Ed.2d 429.
3
The present case is akin to Eastern Railroad Presidents Conference v. Noerr Motor Freight Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, where a group of trucking companies sued a group of railroads to restrain them from an alleged conspiracy to monopolize the long-distance freight business in violation of the antitrust laws and to obtain damages. We held that no cause of action was alleged insofar as it was predicated upon mere attempts to influence the Legislative Branch for the passage of laws or the Executive Branch for their enforcement. We rested our decision on two grounds:
4
(1) 'In a representative democracy such as this, these branches of government act on behalf of the people and, to a very large extent, the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives. To hold that the government retains the power to act in this representative capacity and yet hold, at the same time, that the people cannot freely inform the government of their wishes would impute to the Sherman Act a purpose to regulate, not business activity, but political activity, a purpose which would have no basis whatever in the legislative history of that Act.' Id., at 137, 81 S.Ct., at 529.
5
(2) 'The right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms.' Id., at 138, 81 S.Ct., at 530.
6
We followed that view in United Mine Workers v. Pennington, 381 U.S. 657, 669—671, 85 S.Ct. 1585, 1592—1594, 14 L.Ed.2d 626.
7
The same philosophy governs the approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition. See Johnson v. Avery, 393 U.S. 483, 485, 89 S.Ct. 747, 748, 21 L.Ed.2d 718; Ex parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 641, 85 L.Ed. 1034.
8
We conclude that it would be destructive of rights of association and of petition to hold that groups with common interests may not, without violating the antitrust laws, use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-a -vis their competitors.
9
We said, however, in Noerr that there may be instances where the alleged conspiracy 'is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified.' 365 U.S., at 144, 81 S.Ct., at 533.
10
In that connection the complaint in the present case alleged that the aim and purpose of the conspiracy was 'putting their competitors, including plaintiff, out of business, of weakening such competitors, of destroying, eliminating and weakening existing and potential competition, and of monopolizing the highway common carriage business in California and elsewhere.'
11
More critical are other allegations, which are too lengthy to quote, and which elaborate on the 'sham' theory by stating that the power, strategy, and resources of the petitioners were used to harass and deter respondents in their use of administrative and judicial proceedings so as to deny them 'free and unlimited access' to those tribunals. The result, it is alleged, was that the machinery of the agencies and the courts was effectively closed to respondents, and petitioners indeed became 'the regulators of the grants of rights, transfers and registrations' to respondents—thereby depleting and diminishing the value of the businesses of respondents and aggrandizing petitioners' economic and monopoly power. See Note, 57 Calif.L.Rev. 518 (1969).
12
Petitioners rely on our statement in Pennington that 'Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent of purpose.' 381 U.S., at 670, 85 S.Ct., at 1593. In the present case, however, the allegations are not that the conspirators sought 'to influence public officials,' but that they sought to bar their competitors from meaningful access to adjudicatory tribunals and so to usurp that decisionmaking process. It is alleged that petitioners 'instituted the proceedings and actions . . . with or without probable cause, and regardless of the merits of the cases.' The nature of the views pressed does not, of course, determine whether First Amendment rights may be invoked; but they may bear upon a purpose to deprive the competitors of meaningful access to the agencies and courts. As stated in the opinion concurring in the judgment, such a purpose or intent, if shown, would be 'to discourage and ultimately to prevent the respondents from invoking' the processes of the administrative agencies and courts and thus fall within the exception to Noerr.
13
The political campaign operated by the railroads in Noerr to obtain legislation crippling truckers employed deception and misrepresentation and unethical tactics. We said:
14
'Congress has traditionally exercised extreme caution in legislating with respect to problems relating to the conduct of political activities, a caution which has been reflected in the decisions of this Court interpreting such legislation. All of this caution would go for naught if we permitted an extension of the Sherman Act to regulate activities of that nature simply because those activities have a commercial impact and involve conduct that can be termed unethical.' 365 U.S., at 141, 81 S.Ct., at 531.
15
Yet unethical conduct in the setting of the adjudicatory process often results in sanctions. Perjury of witnesses is one example. Use of a patent obtained by fraud to exclude a competitor from the market may involve a violation of the antitrust laws, as we held in Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 175—177, 86 S.Ct. 347, 349—350, 15 L.Ed.2d 247. Conspiracy with a licensing authority to eliminate a competitor may also result in an antitrust transgression. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 707, 82 S.Ct. 1404, 1414, 8 L.Ed.2d 777; Harman v. Valley National Bank, 339 F.2d 564 (CA9 1964). Similarly, bribery of a public purchasing agent may constitute a violation of § 2(c) of the Clayton Act, as amended by the Robinson-Patman Act. Rangen, Inc. v. Sterling Nelson & Sons, 351 F.2d 851 (CA9 1965).
16
There are many other forms of illegal and reprehensible practice which may corrupt the administrative or judicial processes and which may result in antitrust violations. Misrepresentations, condoned in the political arena, are not immunized when used in the adjudicatory process. Opponents before agencies or courts often think poorly of the other's tactics, motions, or defenses and may readily call them baseless. One claim, which a court or agency may think baseless, may go unnoticed; but a pattern of baseless, repetitive claims may emerge which leads the factfinder to conclude that the administrative and judicial processes have been abused. That may be a difficult line to discern and draw. But once it is drawn, the case is established that abuse of those processes produced an illegal result, viz., effectively barring respondents from access to the agencies and courts. Insofar as the administrative or judicial processes are involved, actions of that kind cannot acquire immunity by seeking refuge under the umbrella of 'political expression.'
17
Petitioners, of course, have the right of access to the agencies and courts to be heard on applications sought by competitive highway carriers. That right, as indicated, is part of the right of petition protected by the First Amendment. Yet that does not necessarily give them immunity from the antitrust laws.
18
It is well settled that First Amendment rights are not immunized from regulation when they are used as an integral part of conduct which violates a valid statute. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834. In that case Missouri enacted a statute banning secondary boycotts and we sustained an injunction against picketing to enforce the boycott, saying:
19
'It is true that the agreements and course of conduct here were as in most instances brought about through speaking or writing. But it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. . . . Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society.' 336 U.S., at 502, 69 S.Ct., at 691.
20
In Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013, we held that the Associated Press was not immune from the antitrust laws by reason of the fact that the press is under the shelter of the First Amendment. We said:
21
'Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.' Id., at 20, 65 S.Ct., at 1425.
22
Accord, Citizen Publishing Co. v. United States, 394 U.S. 131, 139—140, 89 S.Ct. 927, 931—932, 22 L.Ed.2d 148. Cf. Eastern States Retail Lumber Dealers' Assn. v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L.Ed. 1490.
23
The rationale of those cases, when applied to the instant controversy, makes the following conclusions clear: (1) that any carrier has the right of access to agencies and courts, within the limits, of course, of their prescribed procedures, in order to defeat applications of its competitors for certificates as highway carriers; and (2) that its purpose to eliminate an applicant as a competitor by denying him free and meaningful access to the agencies and courts may be implicit in that opposition.
24
First Amendment rights may not be used as the means or the pretext for achieving 'substantive evils' (see NAACP v. Button, 371 U.S. 415, 444, 83 S.Ct. 328, 343, 9 L.Ed.2d 405) which the legislature has the power to control. Certainly the constitutionality of the antitrust laws is not open to debate. A combination of entrepreneurs to harass and deter their competitors from having 'free and unlimited access' to the agencies and courts, to defeat that right by massive, concerted, and purposeful activities of the group are ways of building up one empire and destroying another. As stated in the opinion concurring in the judgment, that is the essence of those parts of the complaint to which we refer. If these facts are proved, a violation of the antitrust laws has been established. If the end result is unlawful, it matters not that the means used in violation may be lawful.
25
What the proof will show is not known, for the District Court granted the motion to dismiss the complaint. We must, of course, take the allegations of the complaint at face value for the purposes of that motion. Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S., at 174—175, 86 S.Ct., at 348—349. On their face the above-quoted allegations come within the 'sham' exception in the Noerr case, as adapted to the adjudicatory process.
26
Accordingly we affirm the Court of Appeals and remand the case for trial.
27
So ordered.
28
Judgment affirmed and case remanded.
29
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
30
Mr. Justice STEWART, with whom Mr. Justice BRENNAN joins, concurring in the judgment.
31
In the Noerr case1 this Court held, in a unanimous opinion written by Mr. Justice Black, that a conspiracy by railroads to influence legislative and executive action in order to destroy the competition of truckers in the long-haul freight business was wholly immune from the antitrust laws.2 This conclusion, we held, was required in order to preserve the informed operation of governmental processes and to protect the right of petition guaranteed by the First Amendment.3 Today the Court retreats from Noerr, and in the process tramples upon important First Amendment values. For that reason I cannot join the Court's opinion.
32
In Noerr the defendants were joined together in an effort to induce legislative and executive action. Here, so the complaint alleges, the defendants (petitioners) have joined to induce administrative and judicial action. The difference in type of governmental body might make a difference in the applicability of the antitrust laws if the petitioners had made misrepresentations of fact or law to these tribunals, or had engaged in perjury, or fraud, or bribery.4 But, contrary to implications in the Court's opinion, there are in this case no allegations whatever of any such conduct on the part of the petitioners. And, in the absence of such conduct, I can see no difference, so far as the antitrust laws and the First Amendment are concerned, between trying to influence executive and legislative bodies and trying to influence administrative and judicial bodies. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 6 L.Ed.2d 405; Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89; United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426; United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339.
33
The Court concedes that the petitioners' 'right of access to the agencies and courts to be heard on applications sought by competitive highway carriers . . . is part of the right of petition protected by the First Amendment.' Yet, says the Court, their joint agreement to exercise that right 'does not necessarily give them immunity from the antitrust laws.' Ante, at 513. It is difficult to imagine a statement more totally at odds with Noerr. For what that case explicitly held is that the joint exercise of the constitutional right of petition is given immunity from the antitrust laws.
34
While disagreeing with the Court's opinion, I would nonetheless remand this case to the District Court for trial. The complaint contains allegations that the petitioners have:
35
1. Agreed jointly to finance and to carry out and publicize a consistent, systematic and uninterrupted program of opposing 'with or without probable cause and regardless of the merits' every application, with insignificant exceptions, for additional operating rights or for the registration or transfer of operating rights, before the California PUC, the ICC, and the courts on appeal.
36
2. Carried out such agreement (a) by appearing as protestants in all proceedings instituted by plaintiffs and others in like position or by instituting complaints in opposition to applications or transfers or registrations; (b) by establishing a trust fund to finance the foregoing, consisting of contributions monthly in amounts proportionate to each defendant's annual gross income; (c) by publicizing and making known to plaintiffs and others in like position the foregoing program.
37
Under these allegations, liberally construed, the respondents are entitled to prove that the real intent of the conspirators was not to invoke the processes of the administrative agencies and courts, but to discourage and ultimately to prevent the respondents from invoking those processes. Such an intent would make the conspiracy 'an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified.' Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S., at 144, 81 S.Ct., at 533.
38
It is only on this basis that I concur in the judgment of the Court.
1
Eastern Railroad Presidents Conference v. Noerr Motor Freight Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464.
2
See also United Mine Workers v. Pennington, 381 U.S. 657, 669—671, 85 S.Ct. 1585, 1592—1594, 14 L.Ed.2d 626.
3
This conclusion, the Court held, was a corollary of our decisions in United States v. Rock Royal Co-operative, 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446, and Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315, holding that when a monopoly or restraint of trade is the result of valid governmental action, there cannot be an antitrust violation.
4
In Noerr, the Court emphasized that the defendants' 'unethical' conduct did not affect their antitrust immunity for jointly exerting pressure on the Legislative and Executive Branches, 365 U.S., at 141, 81 S.Ct., at 531. See, however, Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247.
| 78
|
409 U.S. 464
93 S.Ct. 629
34 L.Ed.2d 647
Elliot L. RICHARDSON, Secretary of Health, Education and Welfare,v.Deborah MORRIS et al.
No. 72-603.
Jan. 15, 1973.
PER CURIAM.
1
Appellees are illegitimate children on whose behalf a class action was commenced seeking to enjoin enforcement of § 203(a) of the Social Security Act, 49 Stat. 623, as amended, 42 U.S.C. § 403(a), on the ground that the provision was unconstitutional under this Court's decisions in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), and Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). The District Court, 346 F.Supp. 494, granted appellees' request for declaratory and injunctive relief.
2
On the merits, this appeal involves the same issues that were raised in Davis v. Richardson, 342 F.Supp. 588 (Conn.), aff'd, 409 U.S. 1069, 93 S.Ct. 678, 34 L.Ed.2d 659, and Griffin v. Richardson, 346 F.Supp. 1226 (Md.), aff'd, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660. Unlike those cases, however, the District Court here purported to predicate its jurisdiction on the Tucker Act, 28 U.S.C. § 1346(a)(2). Assuming, arguendo, that exhaustion of the administrative remedies provided by the Social Security Act was not a prerequisite to appellees' attack on the facial constitutionality of § 203(a), see Public Utilities Comm'n of California v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470 (1958), we nonetheless conclude that it was error for the District Court to assume jurisdiction under the Tucker Act.
3
The Tucker Act plainly gives district courts jurisdiction over claims against the United States for money damages of less than $10,000 that are 'founded . . . upon the Constitution.'* But the Act has long been construed as authorizing only actions for money judgments and not suits for equitable relief against the United States. See United States v. Jones, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90 (1889). The reason for the distinction flows from the fact that the Court of Claims has no power to grant equitable relief see Glidden Co. v. Zdanok, 370 U.S. 530, 557, 82 S.Ct. 1459, 1476, 8 L.Ed.2d 671 (1962) (Harlan, J., announcing the judgment of the Court), and the jurisdiction of the district courts under the Act was expressly made 'concurrent with the Court of Claims.' See United States v. Sherwood, 312 U.S. 584, 589—591, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Bates Mfg. Co. v. United States, 303 U.S. 567, 570, 58 S.Ct. 694, 695, 82 L.Ed. 1020 (1938). What was said in Sherwood, supra, 312 U.S. at 591, 61 S.Ct. at 771, applies here:
4
'(T)he Tucker Act did no more than authorize the District Court to sit as a court of claims and . . . the authority thus given to adjudicate claims against the United States does not extend to any suit which could not be maintained in the Court of Claims.'
5
Although appellees contend that jurisdiction was properly asserted under various alternative provisions of the Judicial Code, the District Court did not pass upon the applicability of those other provisions. Accordingly, appellees' motion for leave to proceed in forma pauperis is granted, the judgment is vacated, and the case remanded to the District Court for further proceedings consistent with this opinion.
6
It is so ordered.
7
Vacated and remanded.
*
The Act, in pertinent part, reads as follows:
'(a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:
'(2) Any other (excepting certain tax cases) civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.'
The Act was passed in 1887. 24 Stat. 505. As enacted, the Act read in terms of '(a)ll claims' rather than '(a)ny other civil action or claim.' Appellees suggest that the added phrase was intended to broaden the scope of district court jurisdiction to include 'actions' for injunctions as well as 'claims' for monetary damages. The phrase, however, did not appear in the 1940 edition of the Judicial Code, 28 U.S.C. § 41(20), and appears to have been inserted during the revision in 1948, without any suggestion that the change was to affect the section's substance. In any event, the corresponding section dealing with the concurrent jurisdiction of the Court of Claims contains no such addition. See 28 U.S.C. § 1491.
| 89
|
404 U.S. 522
92 S.Ct. 616
30 L.Ed.2d 679
Earl A. LOVE, Petitioner,v.The PULLMAN COMPANY. UNITED STATES et al., Petitioners, v. The PULLMAN COMPANY.
Nos. 70—5033, 70—37.
Argued Nov. 16, 1971.
Decided Jan. 17, 1972.
Syllabus
Procedure whereby the Equal Employment Opportunity Commission (EEOC), after having received a written charge from a complainant of discrimination in violation of Title VII of the Civil Rights Act of 1964, orally referred it to the appropriate state agency, waited until that agency had terminated its jurisdiction, and then formally filed the charge on behalf of the complainant without having obtained an additional written charge within 30 days of the termination of the state proceedings held to satisfy the requirements of § 706(b) and (d) of the Act, which have the purpose of affording state agencies prior opportunity to consider discrimination complaints and ensuring their prompt filing and disposition by the EEOC on exhaustion of the state remedy. Pp. 523 527.
10 Cir., 430 F.2d 49, reversed.
Hugh J. McClearn, Denver, Colo., for petitioner in No. 70 5033.
Lawrence G. Wallace, Washington, D.C., for petitioners in No. 70—37.
Edward C. Eppich, Denver, Colo., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
A person claiming to be aggrieved by a violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253,1 may not maintain a suit for redress in federal district court until he has first unsuccessfully pursued certain avenues of potential administrative relief. In this litigation the petitioner employee filed a complaint in the United States District Court for the District of Colorado, alleging that his employer, the respondent Pullman Company, had engaged in employment practices violative of Title VII. The court dismissed the complaint, holding that the statutory prerequisites to the maintenance of the suit had not been met. The Court of Appeals affirmed, 10 Cir., 430 F.2d 49, and we granted certiorari to consider the question of federal law presented. 401 U.S. 907, 91 S.Ct. 873, 27 L.Ed.2d 805.
2
The petitioner was employed by the Pullman Company as a 'porter-in-charge.' In 1963 and again in 1965, he complained to the Colorado Civil Rights Commission, alleging that the porters-in-charge, most of whom, like the petitioner, were Negroes, performed the same functions as conductors, most of whom were white, yet at lower pay. The proceedings of the Colorado Commission terminated in 1965 without reaching a resolution of the controversy satisfactory to the petitioner. On May 23, 1966, the Equal Employment Opportunity Commission received from the petitioner a 'letter of inquiry' which complained of this same alleged discrimination. In accord with its usual practice,2 the Commission treated this letter as a complaint but did not formally file it. Instead to insure compliance with Title VII's procedural requirements, EEOC orally advised the Colorado Commission that it had received a complaint from the petitioner. By letter of June 1, 1966, the Colorado Commission informed EEOC that it waived the opportunity to take further action on the petitioner's grievance, and the EEOC then proceeded with its own investigation. The investigation resulted in a finding of probable cause to believe that the charge of discrimination was true, but the EEOC was unsuccessful in its attempts to obtain Pullman's voluntary compliance. This lawsuit followed.
3
The basis for the holding of the Court of Appeals was its finding that the charge of discrimination had not been 'filed' with EEOC by the petitioner in conformity with the requirements of the Act.3 Two such requirements are critical here. Section 706(b) of the Act, 42 U.S.C. § 2000e—5(b), provides that where there exists a state or local agency authorized to grant or seek relief against employment discrimination, 'no charge may be filed (with the EEOC) by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated . . ..' Section 706(d), 42 U.S.C. § 2000e—5(d), requires that the complaint to the EEOC 'shall be filed by the person aggrieved within two hundred and ten days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier . . ..'
4
The EEOC takes the position that these requirements were fulfilled by the procedure followed in this case, whereby a charge filed with the EEOC prior to exhaustion of the state remedy was referred by it to the state agency, and then formally filed once the state agency indicated that it would decline to take action. The Court of Appeals, on the other hand, regarded this procedure as a 'manipulation of the filing date,' not contemplated or permitted by the statute or by the EEOC regulations then in force.
5
We hold that the filing procedure followed here fully complied with the intent of the Act, and we thus reverse the judgment of the Court of Appeals. Nothing in the Act suggests that the state proceedings may not be initiated by the EEOC acting on behalf of the complainant rather than by the complainant himself, nor is there any requirement that the complaint to the state agency be made in writing rather than by oral referral.4 Further, we cannot agree with the respondent's claim that the EEOC may not properly hold a complaint in 'suspended animation,' automatically filing it upon termination of the state proceedings.5
6
We see no reason why further action by the aggrieved party should be required. The procedure complies with the purpose both of § 706(b), to give state agencies a prior opportunity to consider discrimination complaints, and of § 706(d), to ensure expedition in the filing and handling of those complaints. The respondent makes no showing of prejudice to its interests. To require a second 'filing' by the aggrieved party after termination of state proceedings would serve no purpose other than the creation of an additional procedural technicality.6 Such technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers initiate the process.
The judgment is
7
Reversed.
8
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of these cases.
1
§§ 701—716(c), 42 U.S.C. §§ 2000e to 2000e-15.
2
Title 29 CFR § 1601.11(b) (1971) provides:
'(A) charge is deemed filed when the Commission receives from the person aggrieved a written statement sufficiently precise to identify the parties and to describe generally the action or practices complained of. . . .'
3
The Court of Appeals first adopted the reasoning of the District Court: The state commission had terminated the proceedings initiated by petitioner in July 1965, and petitioner failed to complain to the EEOC within the 30-day time period prescribed in § 706(d), 42 U.S.C. § 2000e—5(d). Regarding this statutory time requirement as jurisdictional, the District Court dismissed the complaint. When the Government entered the case on a petition for rehearing to the Court of Appeals, it pointed out that Title VII had not gone into effect at the time of the events underlying petitioner's applications to the state commission. Thus, the state commission's termination of proceedings in 1965 did not toll the 30-day period for appeal to the EEOC.
4
Respondent cites the following language of § 706(b), 42 U.S.C. § 2000e—5(b):
'If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority.'
Nothing in this language implies that a state proceeding may not be commenced by an oral complaint; the statute guards against state proceedings that are difficult to commence, not against ones that are easily begun.
5
The Court of Appeals expressed concern that if EEOC could ignore the requirement of 29 CFR § 1601.11(b) (1971) that a charge is deemed filed when received, it could file any complaint whenever it chose, thereby nullifying the various statutory time requirements. But the statutory prohibition of § 706(b) against filing charges that have not been referred to a state or local authority necessarily creates an exception to the regulation requiring filing on receipt.
6
See Comment, A Look at Love v. Pullman, 37 U.Chi.L.Rev. 181, 188 (1969). When a member of EEOC, rather than an aggrieved party, files a complaint with EEOC, 'the Commission shall, before taking any action with respect to such charge, notify the appropriate State or local officials and, upon request, afford them a reasonable time, but not less than sixty days . . . to remedy the practice alleged.' Title VII, § 706(c), 42 U.S.C. § 2000e—5(c). It is clear that Congress found nothing wrong, in this circumstance, with EEOC's holding the charge in abeyance until a state agency is given the chance to act. There is no reason to think that Congress would disapprove this procedure when complaints are initiated by aggrieved parties; the difference in wording between § 706(b) and § 706(c) seems to be only a reflection of the different persons who initiate the charge. Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1214 n. 117 (1971).
| 12
|
404 U.S. 528
92 S.Ct. 630
30 L.Ed.2d 686
TRBOVICH, Petitioner,v.UNITED MINE WORKERS OF AMERICA et al.
No. 71—119.
Argued Nov. 18, 1971.
Decided Jan. 17, 1972.
Syllabus
Petitioner union member sought unsuccessfully to intervene pursuant to Fed.Rule Civ.Proc. 24(a) in litigation brought by the Secretary of Labor under Title IV of the Labor-Management Reporting and Disclosure Act to set aside an election of union officers for violations of the Act. Petitioner, who initiated the entire enforcement proceeding with his complaint to the Secretary, sought to present evidence and argument in support of the Secretary's election challenge, and to urge additional grounds for setting the election aside. Held:
1. There is nothing in the language of Title IV of the Act or its legislative history to bar intervention by a union member in a post-election enforcement suit, so long as that intervention is limited to claims of illegality presented by the Secretary's complaint. Pp. 530—537.
2. Intervention under Rule 24(a) is warranted for this petitioner, as he may have a valid complaint about the performance of the Secretary, who protects not only the rights of individual union members but also the public interest in free and democratic union elections, two functions that may not always dictate the same approach to the conduct of the litigation. Pp. 537—539.
Reversed and case remanded to the District Court with directions to allow limited intervention.
Joseph L. Rauh, Jr., Washington, D.C., for petitioner.
Solicitor Gen. Erwin N. Griswold, for respondent, Secretary of Labor.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The Secretary of Labor instituted this action under § 402(b) of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 534, 29 U.S.C. § 482(b), to set aside an election of officers of the United Mine Workers of America (UMWA), held on December 9, 1969. He alleged that the election was held in a manner that violated the LMRDA in numerous respects,1 and he sought an order requiring a new election to be held under his supervision.
2
Petitioner, a member of the UMWA, filed the initial complaint with the Secretary that eventually led him to file this suit. Petitioner now seeks to intervene in the litigation, pursuant to Fed.Rule Civ.Proc. 24(a), in order (1) to urge two additional grounds for setting aside the election,2 (2) to seek certain specific safeguards with respect to any new election that may be ordered,3 and (3) to present evidence and argument in support of the Secretary's challenge to the election. The District Court denied his motion for leave to intervene, on the ground that the LMRDA expressly stripped union members of any right to challenge a union election in the courts, and gave that right exclusively to the Secretary. Hodgson v. United Mine Workers, 51 F.R.D. 270 (1970). The Court of Appeals affirmed on the basis of the District Court opinion, 77 L.R.R.M. 2496 (CADC 1971). We granted certiorari to determine whether the LMRDA imposes a bar to intervention by union members under Rule 24, in a suit initiated by the Secretary. 404 U.S. 880, 92 S.Ct. 202, 30 L.Ed.2d 160 (1971).4 We conclude that it does not, and we remand the case to the District Court with directions to permit intervention.
3
* The LMRDA was the first major attempt of Congress to regulate the internal affairs of labor unions.5 Having conferred substantial power on labor organizations, Congress began to be concerned about the danger that union leaders would abuse that power, to the detriment of the rank-and-file members. Congress saw the principle of union democracy as one of the most important safeguards against such abuse, and accordingly included in the LMRDA a comprehensive scheme for the regulation of union elections.
4
Title IV of the statute establishes a set of substantive rules governing union elections, LMRDA § 401, 29 U.S.C. § 481, and it provides a comprehensive procedure for enforcing those rules, LMRDA § 402, 29 U.S.C. § 482. Any union member who alleges a violation may initiate the enforcement procedure. He must first exhaust any internal remedies available under the constitution and bylaws of his union. Then he may file a complaint with the Secretary of Labor, who 'shall investigate' the complaint. Finally, if the Secretary finds probable cause to believe a violation has occurred, he 'shall . . . bring a civil action against the labor organization' in federal district court, to set aside the election if it has already been held, and to direct and supervise a new election. With respect to elections not yet conducted, the statute provides that existing rights and remedies apart from the statute are not affected. But with respect to an election already conducted, '(t)he remedy provided by this subchapter . . . shall be exclusive.' LMRDA § 403, 29 U.S.C. § 483.
5
The critical statutory provision for present purposes is § 403, 29 U.S.C. § 483, making suit by the Secretary the 'exclusive' post-election remedy for a violation of Title IV. This Court has held that § 403 prohibits union members from initiating a private suit to set aside an election. Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 296, 13 L.Ed.2d 190 (1964). But in this case, petitioner seeks only to participate in a pending suit that is plainly authorized by the statute; it cannot be said that his claim is defeated by the bare language of the Act. The Secretary, relying on legislative history, argues that § 403 should be construed to bar intervention as well as initiation of a suit by the members. In his view the legislative history shows that Congress deliberately chose to exclude union members entirely from any direct participation in judicial enforcement proceedings under Title IV. The Secretary's argument rests largely on the fact that two alternative proposals figured significantly in the legislative history of Title IV, and each of these rejected bills would have authorized individual union members to bring suit. In the words of the District Court:
6
'We think the fact that Congress considered two alternatives suit by union members and suit by the Secretary—and then chose the latter alternative and labelled it 'exclusive' deprives this Court of jurisdiction to permit the former alternative via the route of intervention.' 51 F.R.D., at 272.
7
That argument misconceives the legislative history and misconstrues the statute. A review of the legislative history shows that Congress made suit by the Secretary the exclusive post-election remedy for two principal reasons: (1) to protect unions from frivolous litigation and unnecessary judicial interference with their elections, and (2) to centralize in a single proceeding such litigation as might be warranted with respect to a single election. Title IV as enacted serves these purposes by referring all complaints to the Secretary so that he can screen out frivolous ones, and by consolidating all meritorious complaints in a single proceeding, the Secretary's suit in federal district court. The alternative proposals were rejected simply because they failed to accomplish these objectives. There is no evidence whatever that Congress was opposed to participation by union members in the litigation, so long as that participation did not interfere with the screening and centralizing functions of the Secretary.
8
The enforcement provisions of Title IV originated in a bill introduced by Senator John Kennedy in 1958. That bill, S. 3751, provided for suit by the Secretary as the exclusive remedy for violation of the rules relating to union elections. Senator Kennedy described the bill as a 'modest proposal,' one which would protect union members 'without undue interference in the internal affairs of what I believe are essentially private institutions that is, American trade unions.' 104 Cong.Rec. 7954. The Senate passed an expanded version of the bill, S. 3974, which retained the original enforcement scheme, and reflected a continuing legislative interest in minimizing judicial interference with union elections. See S. Rep. No. 1684, 85th Cong., 2d Sess., 12—15 (1958). That bill was defeated in the House of Representatives, 104 Cong.Rec. 18288, but essentially the same enforcement scheme was retained the following year in S. 1555, the Kennedy-Ervin bill which was ultimately passed by both Houses and enacted into law.
9
In the Senate, the principal advocate of a provision authorizing individual union members to bring suit was Senator Barry Goldwater. He introduced a bill, S. 748, endorsed by the Administration, that would have authorized both the Secretary and the members to file suit to enforce the rules relating to union elections.6 During the Senate Hearings, a number of witnesses compared the enforcement provisions of the two bills. The primary objection to the provision for member suits in the Goldwater bill was that it might lead to multiple litigation in multiple forums, and thereby impose on the union the severe burden of mounting multiple defenses. A related objection was that the Goldwater bill failed to interpose a screening mechanism between the dissatisfied union member and the courtroom, and thereby imposed on the union the burden of responding to frivolous complaints.
10
Perhaps the most vehement opposition to the Goldwater bill came from the AFL—CIO. Its spokesman, Andrew Biemiller, testified that '(t)he bill would result in placing union officers in a straitjacket since they could be haled into court, virtually without limitation, to defend union policies or programs in suits brought against them by any dissident union member (or) minority group.' Hearings on S. 505 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 86th Cong., 1st Sess., 567 (1959); see also id., at 578—579 (analysis of S. 748 by Arthur J. Goldberg, then special counsel to the AFL—CIO). Multiple litigation and unnecessary harassment, then, were seen as the principal evils of the provision for member suits. And it was precisely those evils that the draftsmen of the Kennedy-Ervin bill sought to avoid. According to Professor Archibald Cox, who was a principal consultant to the draftsmen, the Kennedy proposal made suit by the Secretary the exclusive post-election remedy in order to 'centralize control of the proceedings,' to adjudicate the validity of an election 'once and for all in one forum,' and to avoid 'unnecessary harassment of the union on one side and . . . friendly suits aimed at foreclosing the Secretary's action on the other.' Id., at 135.
11
Thus, when the Senate Committee reported out the Kennedy-Ervin bill rather than its competitor, it is reasonable to infer that the Committee, and later the Senate, regarded the provision for exclusive enforcement by the Secretary as a device for eliminating frivolous complaints and consolidating meritorious ones. There is no basis whatever for the further conclusion suggested by the Secretary, that the Senate opposed any form of direct participation by union members in Title IV enforcement litigation.
12
The legislative history in the House of Representatives provides even less support for the Secretary's position. The House initially rejected the Senate bill and passed an alternative authorizing only union members, and not the Secretary, to bring suit to enforce the election title of the bill. H.R. 8342, see H.R.Rep. No. 741, 86th Cong., 1st Sess., 15—17 (1959), U.S. Code Cong. & Admin. News, p. 2424. Even Senator Goldwater, the leading advocate of member suits, thought the House bill inferior to the Senate bill in this regard, because the matter of election violations was too important to be left exclusively to the vagaries of private enforcement. 105 Cong.Rec. 16489 (comparison of House and Senate bills by Sen. Goldwater). The Conference Committee and the House ultimately adopted the Senate's enforcement provisions, thereby affirming the need for public enforcement of Title IV. See H.R.Conf.Rep. No. 1147, 86th Cong., 1st Sess., 35 (1959), U.S. Code Dong. & Admin, News, p. 2503. That action, however, can in no sense be read as a rejection of all forms of private participation in enforcement litigation, since the House at no time considered the possibility that union members might assist the Secretary rather than displace him.
13
With respect to litigation by union members, then, the legislative history supports the conclusion that Congress intended to prevent members from pressing claims not thought meritorious by the Secretary, and from litigating in forums or at times different from those chosen by the Secretary. Only if intervention would frustrate either of those objectives can the statute fairly be read to prohibit intervention as well as initiation of suits by members.
II
14
Intervention by union members in a pending enforcement suit, unlike initiation of a reparate suit, subjects the union to relatively little additional burden.7 The principal intrusion on internal union affairs has already been accomplished, in that the union has already been summoned into court to defend the legality of its election. Intervention in the suit by union members will not subject the union to burdensome multiple litigation, nor will it compel the union to respond to a new and potentially groundless suit. Thus, at least insofar as petitioner seeks only to present evidence and argument in support of the Secretary's complaint, there is nothing in the language or the history of the LMRDA to prevent such intervention.
15
The question is closer with respect to petitioner's attempt to add to the Secretary's complaint two additional grounds for setting aside the union election. These are claims that the Secretary has presumably determined to be without merit. Hence, to require the union to respond to these claims would be to circumvent the screening function assigned by statute to the Secretary. We recognize that it is less burdensome for the union to respond to new claims in the context of the pending suit than it would be to respond to a new and independent complaint. Nevertheless, we think Congress intended to insulate the union from any complaint that did not appear meritorious to both a complaining member and the Secretary. Accordingly, we hold that in a post-election enforcement suit, Title IV imposes no bar to intervention by a union member, so long as that intervention is limited to the claims of illegality presented by the Secretary's complaint.8
III
16
Finally, the Secretary argues that even if the LMRDA does not bar intervention, petitioner has no right to intervene under the terms of Fed.Rule Civ.Proc. 24(a). Rule 24(a)(2) gives one a right to intervene if (1) he claims a sufficient interest in the proceedings, and (2) that interest is not 'adequately represented by existing parties.'9
17
The Secretary does not contend that petitioner's interest in this litigation is insufficient; he argues, rather, that any interest petitioner has is adequately represented by the Secretary. The court below did not reach this question, in light of its threshold determination that Rule 24 had no application to the case. Nevertheless, we think it clear that in this case there is sufficient doubt about the adequacy of representation to warrant intervention.10
18
The Secretary contends that petitioner's only legally cognizable interest is the interest of all union members in democratic elections, and he says that interest is identical with the interest represented by the Secretary in Title IV litigation. Hence he argues that petitioner's interest must be adequately represented unless the court is prepared to find that the Secretary has failed to perform his statutory duty. We disagree.
19
The statute plainly imposes on the Secretary the duty to serve two distinct interests, which are related, but not identical. First, the statute gives the individual union members certain rights against their union, and 'the Secretary of Labor in effect becomes the union member's lawyer' for purposes of enforcing those rights. 104 Cong.Rec. 10947 (remarks of Sen. Kennedy). And second, the Secretary has an obligation to protect the 'vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member.' Wirtz v. Local 153, Glass Bottle Blowers Ass'n, 389 U.S. 463, 475, 88 S.Ct. 643, 650, 19 L.Ed.2d 705 (1968). Both functions are important, and they may not always dictate precisely the same approach to the conduct of the litigation. Even if the Secretary is performing his duties, broadly conceived, as well as can be expected, the union member may have a valid complaint about the performance of 'his lawyer.' Such a complaint, filed by the member who initiated the entire enforcement proceeding, should be regarded as sufficient to warrant relief in the form of intervention under Rule 24(a)(2).
20
The judgment is reversed and the case is remanded to the District Court with directions to allow limited intervention in accordance with this opinion.
21
So ordered.
22
Remanded with directions.
23
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
24
Mr. Justice DOUGLAS, dissenting in part.
25
I join the opinion of the Court to the extent that it holds that Title IV of the Landrum-Griffin Act does not bar intervention by union members, pursuant to Fed.Rule Civ.Proc. 24(a), in suits initiated by the Secretary of Labor challenging union elections. I differ from the majority, however, in that I would also permit the union members in this case to raise their additional grounds* for setting aside the disputed election. In my view, the limited intervention granted by the majority serves neither the purpose of the liberalizing 1966 amendments to Rule 24, nor the twin purposes of Title IV—to preserve unions from a multiplicity of frivolous election challenges, and also to centralize in a single proceeding such litigation as might be warranted with respect to a single election.
26
Here, the Secretary has served his screening function. He has decided that petitioner's election challenge is meritorious. The Court concedes, moreover, that the burden on the union to defend against the additional claims would not be particularly burdensome, compared to the onus of an independent action. Ante, at 537. These claims relate squarely to the election whose legality the union must defend. I would permit them to be heard.
1
The complaint alleged that the Union violated the Act by, inter alia, failing to use secret ballots, permitting campaigning at the polls, denying candidates the right to have observers at polling places and at the counting of ballots, subjecting members to reprisals in connection with their election activities, failing to conduct elections in some locals, and using union assets to promote the candidacy of the incumbents.
2
Petitioner alleged as additional violations of the Act (1) that the Union required members to vote in certain locals, composed entirely of pensioners, which petitioner claims are illegally constituted under the UMWA Constitution; and (2) that the incumbent president improperly influenced the pensioners' vote by bringing about a pension increase just before the election.
3
Petitioner asks the court to order the Union to disband the pensioner locals, to publish a ruling to the effect that the president breached his fiduciary duty by bringing about the pension increase, and to establish new comprehensive rules to govern future elections.
4
We expedited consideration of this case in view of the fact that the litigation is presently pending in the District Court and it has not been stayed.
5
See generally Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv.L.Rev. 851 (1960); Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819 (1960).
6
The Goldwater-Administration bill provided that a member could file suit with respect to any violation of the election title unless that claimed violation was the subject of a pending action by the Secretary. It also provided that enforcement suits could be filed in either state or federal courts. The question of member suits was, throughout the debates, intertwined with the question of preserving pre-existing state remedies, since prior to the enactment of the LMRDA the only remedy for illegal election conduct was a member suit in state court.
Pre-existing state remedies presented the additional problem, not relevant here, of multiple litigation that was not only inconvenient as a matter of procedure but also in conflict as a matter of substance, for the state remedies related to state-defined rights that were not always identical to the new rights defined in the LMRDA. The debates reflect great concern with the proper relationship between state and federal remedies, and much less concern with the relationship between private and public enforcement. See, e.g., S.Rep. No. 187, 86th Cong., 1st Sess., 19—22, 101—104 (1959), U.S. Code Cong. & Admin.News, p. 2318 (majority and minority views); Hearings on H.R. 3540 et al. before a Joint Subcommittee of the House Committee on Education and Labor, 86th Cong., 1st Sess., pt. 4, p. 1611 (1959) (analysis of S. 1555 by Sen. Goldwater), reprinted at 105 Cong.Rec. 10102.
7
For the origins and development of the procedural device of intervention, see Moore & Levi, Federal Intervention, 45 Yale L.J. 565 (1936), 47 Yale L.J. 898 (1938); Developments in the Law Multiparty Litigation in the Federal Courts, 71 Harv.L.Rev. 874, 897—906, 988—992 (1958). The distinction between intervention and initiation is thoughtfully discussed in Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 721, 726—729 (1968).
8
This limitation, however, applies only to the claimed grounds for setting aside the old election, and not to the proposed terms of any new one that may be ordered. For if the court finds merit in the Secretary's complaint and sets the election aside, then the statute requires the court to direct a new election in conformity with the constitution and bylaws of the union, and the requirements of Title IV. Since the court is not limited in this regard to consideration of remedies proposed by the Secretary, there is no reason to prevent the intervenors from assisting the court in fashioning a suitable remedial order. Cf. Hodgson v. Local Union 6799, United Steelworkers, 403 U.S. 333, 344, 91 S.Ct. 1841, 1848, 29 L.Ed.2d 510 (White, J., dissenting).
9
Fed.Rules Civ.Proc. 24(a):
'Upon timely application anyone shall be permitted to intervene in an action: . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.'
10
The requirement of the Rule is satisfied if the applicant shows that representation of his interest 'may be' inadequate; and the burden of making that showing should be treated as minimal. See 3B J. Moore, Federal Practice 24.09—1 (4) (1969).
*
These claims both related to alleged manipulation of pensioners by the incumbents. One claim attacked so-called 'bogus' locals, composed entirely of pensioners, which were 'run' by the incumbents. The second claim was that the union president attempted improperly to influence the pensioners' vote by arranging for increased pension benefits just before the election.
| 67
|
404 U.S. 558
92 S.Ct. 661
30 L.Ed.2d 713
UNITED STATESv.STANDARD OIL COMPANY OF CALIFORNIA.
No. 71—527.
Jan. 24, 1972.
Rehearing Denied Feb 28, 1972.
See 405 U.S. 969, 92 S.Ct. 1166.
PER CURIAM.
1
The United States sought injunctive relief against appellee, alleging that appellee combined and conspired to restrain and monopolize the distribution and sale of petroleum products in American Samoa, in violation of § 3 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 3.1 The District Court for the Northern District of California dismissed the complaint for lack of jurisdiction on the ground that American Samoa is not a 'Territory of the United States' within the meaning of § 3. 330 F.Supp. 371 (1971). The United States has appealed pursuant to the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C. § 29. We note probable jurisdiction and reverse.
2
American Samoa is a group of seven small islands in the South Pacific. Treaties with Great Britain and Germany recognize the claims of the United States to the islands. 31 Stat. 1878, T.S. No. 314. By Act of Congress, 45 Stat. 1253, 48 U.S.C. § 1661, powrs to govern the islands are vested in the President, who has delegated the authority to the Secretary of the Interior, Exec. Order No. 10264, 16 Fed.Reg. 6417.
3
The District Court distinguished between 'organized' and other Territories, holding that only the former are Territories within § 3 and that American Samoa is not 'organized.'2
4
Section 3 extends to 'any Territory of the United States.' Congress, of course, did not have Samoa in mind when it enacted the Sherman Act. Yet, as this Court pointed out in holding that Puerto Rico is within the coverage of § 3, 'that is not enough. It is necessary to go further and to say that, if the acquisition of that insular dependency had been foreseen, Congress would have so varied its comprehensive language as to exclude it from the operation of the act.' Puerto Rico v. Shell Co., 302 U.S. 253, 257, 58 S.Ct. 167, 169, 82 L.Ed. 235 (1937). There is no more reason to think that Congress would have done so for Samoa than for Puerto Rico. The Court stressed in Puerto Rico that Congress intended by § 3 'to exert all the power it possessed in respect of the subject matter—trade and commerce,' and the Court therefore found it
5
'equally reasonable to conclude that Congress intended to include all territories to which its powers might extend. The same reason which requires the utmost liberality of construction in respect of the word 'trade' also requires the same degree of liberality of construction in respect of the word 'territory'; and we hold, accordingly, that the word 'territory' was used in its most comprehensive sense, as embracing all organized territories, whether incorporated into the United States or not, including Puerto Rico.' Id., at 259, 58 S.Ct., at 170.
6
There is no question that Congress has power to apply the Sherman Act to Samoa. Because 'Congress intended to include all Territories to which its powers might extend,' it follows that Samoa is a 'Territory' within the meaning of § 3. We are not persuaded by the District Court's distinction, for purposes of § 3, between organized and unorganized Territories. The Court held in Puerto Rico that "territory' was used in its most comprehensive sense'; the Court's further reference to 'organized territories' was simply an application of that construction to the facts of the case, for Puerto Rico was an organized Territory, as well as a response to the contention that Puerto Rico could not be included within § 3 because it was not an 'incorporated' Territory. We discern no reason, and appellee suggests none, why Congress would have wished to exclude unorganized Territories from the coverage of § 3.
7
Reversed.
1
Section 3 provides in pertinent part:
'Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or commerce in any Territory of the United States or of the District of Columbia, or in restraint of trade or commerce between any such Territory and another, or between any such Territory or Territories and any State or States or the District of Columbia, or with foreign nations, or between the District of Columbia and any State or States or foreign nations, is declared illegal.'
2
An 'organized' Territory is one in which a civil government has been established by an Organic Act of Congress.
| 78
|
404 U.S. 553
92 S.Ct. 659
30 L.Ed.2d 708
In the Matter of Larry LITTLE.
No. 71—244.
Jan. 24, 1972.
PER CURIAM.
1
Petitioner was convicted of committing a direct contempt of a judge of the District Court Division of the Forsyth County, North Carolina, General Court of Justice. He was sentenced to 30 days in jail as summary punishment authorized by General Statutes of North Carolina §§ 5—1(1) and 5—6. He sought habeas corpus in the Superior Court Division of the General Court. That court denied relief after hearing oral argument but without receiving evidence. Both the North Carolina Court of Appeals and the North Carolina Supreme Court, 181 S.E.2d 602 denied review by certiorari.
2
Neither the order of the District Court nor the judgment of the Superior Court details the events leading to the conviction. The petition recites these events, however, and the State's response does not challenge the accuracy of the recital. Petitioner's trial on a charge of carrying a concealed weapon was scheduled for March 8, 1971, in the District Court at Winston-Salem. Petitioner appeared and filed a written motion for continuance by reason of another trial engagement of his retained counsel in Charlotte. The trial judge denied the motion and proceeded with the trial. Without benefit of counsel petitioner attempted to defend himself. In summation following the close of the evidence petitioner made statements that the court was biased and had prejudged the case and that petitioner was a political prisoner. The trial judge adjudged petitioner in contempt for these statements. The court's order recites that '(t)he Court at this point informed the (petitioner) that he was in contempt as the Court felt that these remarks were very disrespectful and tended to subvert and prevent justice,' and further recites that '(t)he Court concludes on the foregoing facts that the conduct of the (petitioner) and the words spoken by him in the presence of the Court were contemptuous, that they reflected on the integrity of the Court and tended to subvert and prevent justice.'
3
The order also recites, 'As the defendant was being removed from the courtroom by deputy sheriff (following the contempt adjudication), he spoke out and called the undersigned presiding judge a M_ _ F_ _.' This language in a courtroom is, of course, reprehensible and cannot be tolerated. But this was not relied upon by either the District Court or the Superior Court for the conviction and sentence and the State defends the conviction in this Court without any reference to it. We therefore also lay it aside for the purpose of our decision.
4
The Superior Court had the District Court order before it but no other evidence. The Superior Court judgment tracks the statutory language in reciting that petitioner's statements 'directly tended to interrupt its proceedings and to impair the respect due the District Court's authority,' and, further, the District Court's conclusion that the statements "reflected on the integrity of the Court and tended to subvert and prevent justice' amounted to a finding by the District Court that the words were wilful and intentionally used and that the words used tended to interrupt the Court's proceedings and to impair the respect due its authority.'*
5
We hold that in the context of this case petitioner's statements in summation did not constitute criminal contempt. The court's denial of the continuance forced petitioner to argue his own cause. He was therefore clearly entitled to as much latitude in conducting his defense as we have held is enjoyed by counsel vigorously espousing a client's cause. In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962). There is no indication, and the State does not argue, that petitioner's statements were uttered in a boisterous tone or in any wise actually disrupted the court proceeding. Therefore, 'The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil . . .. (T)he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.' Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546 (1947). 'Trial courts . . . must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.' Brown v. United States, 356 U.S. 148, 153, 78 S.Ct. 622, 626, 2 L.Ed.2d 589 (1958).
6
The reversal of this conviction is necessarily required under our holding in Holt v. Virginia, 381 U.S. 131, 85 S.Ct. 1375, 14 L.Ed.2d 290 (1965). There attorneys filed motions that the trial judge recuse himself and for a change of venue, alleging that the judge was biased. The motion for change of venue alleged that the judge intimidated and harassed the attorneys' client. The court adjudged the attorneys in contempt for filing these motions. We reversed for reasons also applicable here:
7
'It is not charged that petitioners here disobeyed any valid court order, talked loudly, acted boisterously, or attempted to prevent the judge or any other officer of the court from carrying on his court duties. Their convictions rest on nothing whatever except allegations made in motions for change of venue and disqualification of Judge Holladay because of alleged bias on his part.' Id., at 136, 85 S.Ct., at 1377.
8
The petition for certiorari is granted and the judgment is reversed.
9
It is so ordered.
10
Reversed.
11
Mr. Chief Justice BURGER, with whom Mr. Justice REHNQUIST joins, concurring.
12
I agree with the Court's disposition of the case but something more needs to be said.
13
A contempt holding depends in a very special way on the setting, and such elusive factors as the tone of voice, the facial expressions, and the physical gestures of the contemnor; these cannot be dealt with except on full ventilation of the facts. Those present often have a totally different impression of the events from what would appear even in a faithful transcript of the record. Some measure of the flavor of what really occurred in this episode, and of the petitioner's attitude and demeanor, how his spoken words impressed those present, may be gleaned from the events and utterances described in the Court's per curiam opinion.
14
The North Carolina court is, of course, free to promptly summon this petitioner before it and, observing the strictures of Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971), issue process requiring him to show cause why he should not be held in contempt for the conduct and utterances following the contempt adjudication.
*
Section 5—1(1) makes punishable for contempt '(d)isorderly, contemptuous, or insolent behavior committed during the sitting of any court of justice, in immediate view and presence of the court, and directly tending to interrupt its proceedings, or to impair the respect due to its authority.'
| 01
|
404 U.S. 541
92 S.Ct. 652
30 L.Ed.2d 697
BOARD OF REGENTS OF the UNIVERSITY OF TEXAS SYSTEM, Appellant,v.NEW LEFT EDUCATION PROJECT et al.
No. 70—55.
Argued Dec. 6, 1971.
Decided Jan. 24, 1972.
W. O. Shultz II, Austin, Tex., for appellant.
David R. Richards, Austin, Tex., for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
This case comes here on direct appeal from the ruling of a three-judge court declaring unconstitutional and enjoining enforcement of two sections of the Rules and Regulations of appellant Board of Regents of the University of Texas System. 326 F.Supp. 158 (1970). We postponed consideration of our jurisdiction to a hearing on the merits. 401 U.S. 935, 91 S.Ct. 939, 28 L.Ed.2d 214 (1971). For reasons explained below, we have concluded that we lack jurisdiction of this appeal.
2
This litigation began when the Board of Regents sued the New Left Education Project and certain individuals in a Taxes court. In that suit, the Regents sought to restrain defendants from distributing a newspaper and making either commercial or noncommercial solicitations on the Austin campus of the University of Texas except in compliance with appellant's rules. Defendants countered by bringing this federal suit to enjoin further state court proceedings on the ground that the rules that the Regents sought to enforce abridged defendants' First Amendment rights. A three-judge court met and determined that it was properly convened pursuant to 28 U.S.C. § 2281. It then permitted certain other organizations and individuals, including appellees here, to join the suit as plaintiffs and dismissed the action as to those involved in the state court adjudication. Thereafter, the court granted summary judgment in favor of appellees, declaring unconstitutional and permanently enjoining enforcement of two rules, Regents' Rules & Regs., c. VI, pt. 1, §§ 6.11, 6.12 (App. 173), governing the campus distribution of certain kinds of literature and the solicitation of dues from members of political organizations.
3
We have jurisdiction to review directly the lower court's order granting an injunction only if the case was one required to be heard and determined by a three-judge court. 28 U.S.C. § 1253. Such a court is required where the challenged statute or regulation, albeit created or authorized by a state legislature, has statewide application or effectuates a statewide policy. But a single judge, not a three-judge court, must hear the case where the statute or regulation is of only local import. Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967); Rorick v. Board of Commissioners, 307 U.S. 208, 59 S.Ct. 808, 83 L.Ed. 1242 (1939); Ex parte Public National Bank, 278 U.S. 101, 49 S.Ct. 43, 73 L.Ed. 202 (1928); Ex parte Collins, 277 U.S. 565, 48 S.Ct. 585, 72 L.Ed. 990 (1928). This rule achieves the congressional purpose of saving statewide regulatory legislation from invalidation through ordinary federal court equity suits, minimizes the burden that the three-judge court places upon the federal judiciary, and avoids unduly expanding the Court's carefully limited appellate jurisdiction. Phillips v. United States, 312 U.S. 246, 250, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941). Thus, the 'term 'statute' in § 2281 does not encompass local ordinances or resolutions,' Moody v. Flowers, supra, at 101, 87 S.Ct., at 1548, nor does it include a state statute having only a local impact, even if administered by a state official. Rorick v. Board of Commissioners, supra.
4
Appellant Board of Regents was created by the Texas Legislature and is charged with governing those educational institutions in the University of Texas System. Texas Rev.Civ.Stat.Ann., Art. 2585 (1965). This governance, which specifically includes a rulemaking power, ibid., extends to but three of the 23 four-year state colleges and universities listed in the Higher Education Coordinating Act of 1965, id., Art. 2919e 2, § 2 (Supp.1970—1971): the Unversity of Texas at Austin, El Paso, and Arlington.1 In addition to the 20 senior colleges and universities for which appellant bears no responsibility, Texas has at least 31 public junior colleges that are not within the University of Texas System. Ibid. It is true that the Board of Regents governs numerous medical and other specialized schools and branches, id., Arts. 2603e to 2603i, 2606b to 2606d, but these are only some of the specialized institutions that Texas denominates as agencies of higher education. Id., Art. 2919e—2, §§ 2(e)—(g) (Supp.1970—1971). It is therefore apparent that the Regents' rulemaking power and the rules at issue in this litigation extend to but a fraction of the campuses in the Texas system of higher public education. These rules can scarcely be described as matters of statewide concern or expressions of a statewide policy when a large percentage of Texas colleges and universities are unaffected by them and could not be affected by any pronouncement that a federal court might make on their constitutionality. There is no suggestion or indication of any kind that the Regents' rules are similar to those for other schools or are required by or express statewide policy.2 The situation here is comparable to that in Moody v. Flowers, supra, where we held that three-judge courts were improperly convened to consider challenges to a state statute applying to a particular county and to a county charter based upon a state statute. The fact that several campuses over which the Board of Regents has jurisdiction are located in different parts of the State does not in our view make their rules of general applicability for the purpose of 28 U.S.C. § 2281. These rules, applying only to some of the higher educational institutions of the State, are of limited significance and do not partake of the quality and dignity of those state statutes or policies that three-judge courts were designed to consider. We are persuaded that a contrary view of this case would be inconsistent with our oft-repeated admonition that the three-judge court statute is to be strictly construed. E.g., Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969); Phillips v. United States, 312 U.S., at 251, 61 S.Ct., at 483.
5
Since the three-judge court was improperly convened, appeal lies not here but to the Court of Appeals for the Fifth Circuit. So that appellant may be able, if it desires, to perfect a timely appeal, we vacate the judgment below and remand the case with instruction that the court enter a fresh decree. Phillips v. United States, supra, at 254, 61 S.Ct., at 484.
6
Judgment vacated and remanded.
7
Mr. Justice POWELL, and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
8
Mr. Justice DOUGLAS, dissenting.
9
When I authored Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643, I thought I was writing a chapter on federalism within a State. Cities, counties, and the State as a whole constitute that federalism. The three-judge-court statute, 28 U.S.C. § 2281, speaks of 'the enforcement, operation or execution of any State statute.' A city ordinance or a county regulation does not meet that requirement, and so the county regulations involved in Moody did not satisfy the statute though enacted by the State. If the source of the authority is state action, the statute is presumably satisfied, since normally of course, state laws have an impact on activities in every city and every county. But where a state law is not of 'statewide concern' and involves only 'regislation affecting a locality' (Rorick v. Board of Commissioners, 307 U.S. 208, 213, 59 S.Ct. 808, 811, 83 L.Ed. 1242, then the policy of 28 U.S.C. § 2281 is deemed not served.
10
But a State's university system, involving, as does this one, 17 institutions, is plainly of 'state wide concern' even though not every county has a university.1
11
In addition to its supervision of the University of Texas at Austin, Texas Rev.Civ.Stat.Ann., Art. 2584 et seq., and the other institutions included in the 17 that are in the state university system,2 the Board of Regents also oversees a number of other major institutions of higher education within Texas' university and college system: University of Texas at El Paso, id., Art. 2633, University of Texas at Arlington, id., Art. 2620a, University of Texas at San Antonio, id., Art. 2606c—3, University of Texas at Dallas, id., Art. 2606c—3.1, University of Texas of the Permian Basin, id., Art. 2606c—4, Institutes for Urban Studies in the Dallas-Ft. Worth area and in Houston, id., Art. 2606d, as well as other institutions of learning. E.g., id., Art. 2585d(3).
12
The matter involves more than state 'legislation affecting a locality': it concerns a university system with campuses scattered across the State, serving the educational needs of those from every city, from every county, who seek undergraduate or graduate education.3
13
Since the case is properly here, I would reach the merits.
1
Appellant also mentions the University of Texas at San Antonio and of the Permian Basin but does not take issue with appellees' contention that these schools are merely in the planning stage (Brief for Appellees 2, n. 1).
2
It has long been settled that a three-judge court is proper even in a suit against a local official, although localized in his geographic activities and mode of his selection, when he is engaged in enforcing a policy of statewide application whose constitutionality is challenged. Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322 (1935); Rorick v. Board of Commissioners, 307 U.S. 208, 212, 59 S.Ct. 808, 810, 83 L.Ed. 1242 (1939). The thrust of our more recent decision in Alabama State Teachers Assn. v. Alabama Public School and College Authority, 393 U.S. 400, 89 S.Ct. 681, 21 L.Ed.2d 631 (1969), is to the same effect. The issue there was a legislative direction to the Alabama Public School and Housing Authority to issue bonds for the construction of a public university in Montgomery, Alabama. Appellants challenged that action, although having a local impact, as expressive of an official, statewide policy to maintain a racially identifiable, dual system of education, and the District Court denied relief. The dissent on the merits from summary affirmance, disagreeing with Mr. Justice Harlan's dissent on jurisdictional grounds, agreed that a statewide policy was sufficiently implicated to sustain the jurisdiction of the three-judge court and the direct appeal here. Board of Visitors v. Norris, 404 U.S. 907, 92 S.Ct. 227, 30 L.Ed.2d 180 (1971), aff'g, 327 F.Supp. 1368 (E.D.Va.1971), rests upon the same basis. In McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149 (1950), the Court entertained an appeal from the judgment of a three-judge District Court upholding an Oklahoma statute providing that Negroes, though admissible to white graduate schools, must get that education on a segregated basis.
Nothing in the record before us in this case indicates that the regulations challenged here represent general state policy, reflect a statutory command, or apply to more than a fraction of the Texas higher educational institutions. It is thus difficult to understand the dissent's reliance on the Alabama, Norris, and McLaurin cases.
1
During oral argument, counsel for appellant indicated that its authority extended over some '17 component institutions in the system,' stretching from El Paso on the far western tip of the State, to Galveston on the Gulf Coast, and from San Antonio in the south to Dallas in the north. Tr. of Oral Arg. 6—7. '(A)t the University of Texas at Austin alone,' counsel told us, 'there are 40,000 students, and over 7,000 employees on a 265-acre campus. When you include all the other campuses and institutions, I'm hard put to say how many people are involved; but many, many thousands.' Id., at 10.
2
See n. 1, supra.
3
That a 'statewide concern' sufficient to require a three-judge court is present is evidenced by Alabama State Teachers Assn. v. Alabama Public School and College Authority, 393 U.S. 400, 89 S.Ct. 681, 21 L.Ed.2d 631 (1969), a case of recent vintage which the Court must overrule to reach its result today. There, we sustained a three-judge-court action dealing with state bonding authority for a single college in a single town. See also McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149 (1950) (three-judge court required for action relating to single state graduate school). The present case is an even stronger one for the convention of a three-judge court because the rules in issue touch upon the freedom of expression in colleges and universities in all four corners of the State of Texas.
And see Board of Visitors v. Norris, 404 U.S. 907, 92 S.Ct. 227, 30 L.Ed.2d 180 (1971), aff'g 327 F.Supp. 1368 (E.D.Va. 1971), decided about three months ago. There, the three-judge court struck down as unconstitutional a single item in a state act dealing with but one of the State's colleges. This Court unanimously affirmed that judgment.
Alabama State Teachers Assn., McLaurin, and Norris did not, as is suggested by the majority, depend upon the existence of a pervasive state policy of segregation extending beyond the educational institutions there involved. The statewide concern which justified the convention of the three-judge courts in those cases cf. Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322 (1935), was the unconstitutional manner in which state institutions, serving the entire State, were being operated. That same kind of operation of statewide institutions is alleged in the present case.
| 89
|
404 U.S. 567
92 S.Ct. 746
30 L.Ed.2d 722
George Martin BRADLEYv.UNITED STATES.
No. 71-5431.
Supreme Court of the United States
January 24, 1972
On petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted.
2
The judgment is vacated and the case is remanded to the United States District Court for the Southern District of Iowa with directions to dismiss the indictment. Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971).
3
THE CHIEF JUSTICE and Mr. Justice BLACKMUN dissent for the reasons stated in Mr. Justice BLACKMUN'S dissenting opinion in Durham v. United States, 401 U.S. 481, 483-485, 91 S.Ct. 858, 860-861 (1971).
| 89
|
404 U.S. 549
92 S.Ct. 656
30 L.Ed.2d 704
Peggy J. CONNOR et al.v.John Bell WILLIAMS, Governor of Mississippi, et al.
No. 71—221.
Jan. 24, 1972.
PER CURIAM.
1
After determining that the reapportionment plan for the State Senate and House of Representatives, passed by the Mississippi Legislature in January 1971, failed to comply with the Equal Protection Clause because of a total variance of 26% between the largest and the smallest senatorial district (a determination that was not appealed),1 the District Court fashioned its own plan for the quadrennial elections for both Houses scheduled for 1971, and these elections were held under the court's plan. Connor v. Johnson, 330 F.Supp. 506 (S.D.Miss.1971). Appellants now challenge the constitutionality of the court's plan, contending that a total variance of 18.9% between the largest and smallest Senate district and one of 19.7% between the largest and smallest House district require that the court's districting plan be voided, a new plan instituted, and new elections held.2
2
Appellants rely on our recent cases invalidating congressional redistricting statutes that contained total variations of 5.97%, Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969), and of 13.1%, Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969), between the largest and the smallest districts. These decisions do not squarely control the instant appeal since they do not concern state legislative apportionment, but they do raise substantial questions concerning the constitutionality of the District Court's plan as a design for permanent apportionment.
3
But conceding, arguendo, that the District Court's plan does not precisely square with Fourteenth Amendment requirements, it does not necessarily follow that the 1971 elections must be invalidated and new elections ordered. Mann v. Davis, 238 F.Supp. 458 (E.D.Va.1964), aff'd sub nom. Hughes v. WMCA, Inc., 379 U.S. 694, 85 S.Ct. 713, 13 L.Ed.2d 698 (1965); Toombs v. Fortson, 241 F.Supp. 65, 71 (N.D.Ga.1965), aff'd, 384 U.S. 210, 86 S.Ct. 1464, 16 L.Ed.2d 482 (1966); Drum v. Seawell, 249 F.Supp. 877, 881—882 (M.D.N.C.1965), aff'd, 383 U.S. 831, 86 S.Ct. 1237, 16 L.Ed.2d 298 (1966). In the circumstances of this case, we decline to disturb these elections.
4
The prospective validity of the plan for the 1975 elections, absent legislative action, poses different issues, but we need not decide those questions at the present time. Under the District Court plan, approximately one-fifth of the seats in both Houses were filled by at-large elections from temporary countywide districts in 1971.3 The District Court retained jurisdiction over these three counties and ordered that a Special Master be appointed in January 1972 to 'take testimony and make findings as to whether the Counties of Hinds, Harrison, and Jackson may feasibly be divided into districts of substantially equal numbers in population for the elections of 1975 and 1979.' 330 F.Supp., at 519. Such proceedings should go forward and be promptly concluded, for, as this Court has emphasized, 'when district courts are forced to fashion apportionment plans, single-member districts are preferable to large multi-member districts as a general matter.' Connor v. Johnson, 402 U.S. 690, 692, 91 S.Ct. 1760, 1762, 29 L.Ed.2d 268 (1971). Pending completion of those proceedings, we deem it inappropriate to give further consideration to this case. If we are to consider the applicability of Preisler and Wells to state legislative districts, it would be preferable to have before us a final judgment with respect to the entire State.4 To accomplish this result and to preserve the right to appeal from such a judgment, the judgment of the District Court is vacated, except insofar as it applied to the 1971 elections, and the case is remanded to the District Court for further proceedings consistent with this opinion.
5
Judgment vacated in part and case remanded.
6
So ordered.
1
A three-judge court has twice previously voided apportionment plans enacted by the Mississippi Legislature because they embodied impermissible population variances. Connor v. Johnson, 279 F.Supp. 619 (S.D.Miss.1966), aff'd, 386 U.S. 483, 87 S.Ct. 1174, 18 L.Ed.2d 224 (1967) (appeal limited to congressional districting). This Court has already considered an interlocutory appeal in the instant case. Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268, 403 U.S. 928, 91 S.Ct. 2241, 29 L.Ed.2d 722 (1971).
2
There are 52 seats in the State Senate and 122 seats in the State House of Representatives. According to the 1970 census, Mississippi has a population of 2,216,912, making the ideal single-member Senate district one containing 42,633 persons and the ideal single-member House district one containing 18,171 persons. Under the court's plan, Senate district 29 (46,719 persons, one Senator) is 9.6% underrepresented, and district 19 (77,320 persons, two Senators) is 9.3% overrepresented. House district 18 (32,772 persons, two Representatives) is 9.8% overrepresented, and House district 3 (59,912 persons, three Representatives) is 9.9% underrepresented.
3
Legislators elected from temporary multi-member districts:
Senators Representatives
Hinds County . . . . 5 12
Harrison County . . . 3 7
Jackson County . . . . 2 6*
-- --
10 25* With George County.
Thus, 10 out of 52 Senators (19%) and 25 out of 122 Representatives (21%) were elected from temporary multi-member districts in 1971.
4
Meanwhile, it is possible that the state legislature will adopt a plan of its own. During the course of this litigation, the District Court has emphasized that 'the exercise of this unavoidable judicial duty (drafting an apportionment plan) cannot, does not, and will not in any way tie the hands of the Legislature at any time to adopt and enact any plan of its own for the reapportionment of its membership so long as it complies with Constitutional requirements.' Connor v. Johnson, 265 F.Supp. 492, 494 (S.D.Miss.1967) (emphasis in original). This Court has frequently emphasized that 'legislative reapportionment is primarily a matter for legislative consideration and determination, and . . . judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.' Reynolds v. Sims, 377 U.S. 533, 586, 84 S.Ct. 1362, 1394, 12 L.Ed.2d 506 (1964). See also Burns v. Richardson, 384 U.S. 73, 85, 86 S.Ct. 1286, 1293, 16 L.Ed.2d 376 (1966); Ely v. Klahr, 403 U.S. 108, 114 n. 6, 91 S.Ct. 1803, 1807, 29 L.Ed.2d 352 (1971).
| 12
|
404 U.S. 561
92 S.Ct. 663
30 L.Ed.2d 716
UNITED STATESv.CHRISTIAN ECHOES NATIONAL MINISTRY, INC.
No. 71—565.
Jan. 24, 1972.
PER CURIAM.
1
This case began when the Internal Revenue Service revoked the tax-exempt status of the appellee, a nonprofit religious corporation. The appellee had previously enjoyed a tax exemption under § 501(c)(3) of the 1954 Internal Revenue Code; 26 U.S.C. § 501(c)(3). This section defines exempt organizations, in pertinent part, as:
2
'Corporations . . . organized and operated exclusively for religious . . . purposes . . ., no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office.'
3
The appellee's exemption under this provision was revoked on three grounds: (1) that the appellee was not operated exclusively for religious purposes, (2) that it had engaged in substantial activity aimed at influencing legislation, and (3) that it had intervened in political campaigns on behalf of candidates for public office.
4
The appellee paid the taxes assertedly owed and then filed the present suit for a refund in Federal District Court, claiming that it was entitled to an exempt status under § 501(c)(3) of the Code. The case was heard by a single District Judge sitting without a jury. The judge ultimately decided that the appellee was entitled to tax-exempt status and to a refund of the taxes paid.1
5
The District Court rejected all three grounds on which the Internal Revenue Service had revoked the appellee's exempt status. It found, as fact, (1) that the appellee's 'activities have been directed toward achieving its religious goals,' (2) that '(w)ith the exception of support of the proposed Becker Amendment to the United States Constitution relating to voluntary prayer and Bible reading in public schools, (the appellee) has not engaged in attempts to influence legislation,' and (3) that the appellee 'has not endorsed a political candidate, and has not instructed its followers as to how to vote but only to vote.' On the basis of its findings of fact, the court concluded as law that the appellee fell within the terms of § 501(c)(3). That ended the case. But the District Court nonetheless went on to discuss certain constitutional issues.
6
In its conclusions of law, the court stated that the First Amendment prohibits both the Government and the courts from determining whether a religious organization is operated for exclusively religious purposes, and is thus eligible for tax-exempt status, by analyzing each and every activity of the organization and classifying it as 'religious' or 'political.' In this case, the court said, the Internal Revenue Service conducted and relied upon such an analysis in revoking the appellee's exemption and, for that reason, the Service denied the free exercise of religion to the appellee. The District Court also stated that the Internal Revenue Service violated the appellee's right to due process of law by singling it out, among all other religious organizations, for investigation and exemption revocation 'without evidence to support its action.'
7
The United States seeks to appeal the decision of the single District Judge directly to this Court. It argues that we have jurisdiction under 28 U.S.C. § 1252. That jurisdictional provision allows a direct appeal to the Supreme Court from the decision of 'any court of the United States . . . holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States . . . is a party.' Such a direct appeal is allowed whether the Act of Congress was declared unconstitutional 'as a whole' or simply 'as applied.' Fleming v. Rhodes, 331 U.S. 100, 102—103, 67 S.Ct. 1140, 1141, 1142, 91 L.Ed. 1368. The findings and conclusions of the District Court in the present case, however, reveal that it did not hold § 501(c)(3) unconstitutional in either of these ways. Hence, we must dismiss this appeal for want of jurisdiction.
8
The 'basis' of the District Court's decision, United States v. Raines, 362 U.S. 17, 20, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 was that, under the facts adduced at trial, the appellee qualified for exempt status under § 501(c)(3). The court did not question or even consider the constitutionality of § 501(c)(3) 'as a whole.' Nor does any part of its opinion hold that the section was unconstitutional 'as applied.' Indeed, the court in this case would hardly have found the appellee to be qualified for an exemption under § 501(c)(3), only to hold that the section could not be validly applied in the first place.
9
The District Court's commentary on the denial of due process to the appellee was directed simply to the method by which § 501(c)(3) was enforced2—not to its basic applicability. The court held that the Internal Revenue Service may not discriminate in applying the section. This holding restricts freewheeling enforcement and may make it more difficult to revoke certain tax exemptions. But it does not call into question the validity of the underlying statute. Under § 1252, direct appeal to the Supreme Court is authorized only in the latter situation.
10
Similarly, the 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. At most, the court's reasoning on this point can be read to construe § 501(c)(3) narrowly so as to avoid a First Amendment problem.3 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 of 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.4 Although the construction was based on a constitutional premise, it did not amount to a holding that an Act of Congress is unconstitutional, as contemplated by § 1252. To the contrary, the District Court construed the section so as to save its constitutionality.
11
Our interpretation of the District Court's conclusions of law does not, of course, indicate approval of those conclusions. The issue is not before us. We hold only that there is an absence of appellate jurisdiction under § 1252.
12
The judgment is vacated and the case remanded to the District Court for the entry of a fresh decree, so that the appellant may appeal to the United States Court of Appeals for the Tenth Circuit.
13
Judgment vacated and case remanded.
14
Mr. Justice DOUGLAS took no part in the consideration or decision of this case.
1
The findings of fact and conclusions of law of the District Court in this case, entered on June 24, 1971, are not officially reported.
2
By far the greatest portion of the District Court's findings of fact are directed to the detailed history of the Government's investigation of the appellee's exempt status.
3
For example, the District Court stated:
'43. (The appellant) has characterized certain of (the appellee's) activities during the years involved in this suit as urging the public to contact members of legislative bodies for the purpose of proposing, supporting or opposing legislation. (The appellee) has characterized the same activities as taking stands on issues of the day concerning matters which it construes to threaten its religious beliefs. The Court finds that these activities have resulted from (the appellee's) religious beliefs and were merely incidental to the exercise of its religion and the expression and dissemination of its understanding of biblical concepts. The Court further finds that any such activities by (the appellee) were insubstantial in relationship to the totality of (the appellee's) activities.
'44. (The appellant), in describing and characterizing (the appellee's) activities as political and non-religious, has in fact indicated a disagreement with the content and nature of what (the appellee) has said and written. (The appellant) has thereby sponsored its own definitions of 'religion' and 'religious.' Such definitions by (the appellant) are impermissable (sic). . . .
'45. (The appellee's) expression of opinion on 'current issues or issues of the day' is not an act contemplated by prohibition against intervention in political campaigns or legislation and is not a violation of the provisions of Internal Revenue Code.'
4
A similar distinction has been drawn in the context of the three-judge district court statute, 28 U.S.C. § 2281. '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, 310 U.S. 354, 361, 60 S.Ct. 947, 951, 84 L.Ed. 1249.
| 89
|
30 L.Ed.2d 721
92 S.Ct. 731
404 U.S. 548
UNITED STATES, petitioner,v.CHAS. PFIZER & CO., Inc., et al.
No. 70-72.
Supreme Court of the United States
January 24, 1972
Daniel M. Friedman, Washington D. C., for petitioner.
John E. F. Wood, New York City, for respondents.
On writ of certiorari to the United States Court of Appeals for the Second Circuit.
PER CURIAM.
1
The judgment is affirmed by an equally divided Court.
2
Mr. Justice STEWART, Mr. Justice WHITE, and Mr. Justice MARSHALL took no part in the consideration or decision of this case.
| 78
|
405 U.S. 9
92 S.Ct. 756
30 L.Ed.2d 762
Joseph COLOMBOv.State of NEW YORK.
No. 71—352.
Feb. 22, 1972.
PER CURIAM.
1
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 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 (McKinney's Consol.Laws, c. 30) . . ..' Petitioner was sentenced to 30 days and fined $250.
2
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, McKinney's Consol.Laws, c. 40 '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, 32 A.D.2d 812, 302 N.Y.S.2d 488. The reversal was sustained by the Court of Appeals, 25 N.Y.2d 641, 306 N.Y.S.2d 258, 254 N.E.2d 340; 29 N.Y.2d 1, 323 N.Y.S.2d 161, 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.
3
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 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, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957); see also Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966); Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); Oriel v. Russell, 278 U.S. 358, 49 S.Ct. 173, 73 L.Ed. 419 (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.
4
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.
5
Judgment vacated and case remanded.
6
Mr. Justice DOUGLAS, dissenting.
7
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 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.
8
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, 306 N.Y.S.2d 258, 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, 90 S.Ct. 1184, 25 L.Ed.2d 435. 400 U.S. 16, 91 S.Ct. 99, 27 L.Ed.2d 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) 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, 323 N.Y.S.2d 161, 163, 271 N.E.2d 694, 695.
9
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 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, 86 S.Ct. 1531, 16 L.Ed.2d 622, 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, 86 S.Ct., at 1533. In the present case, by contrast, the jail sentence and fine was imposed despite petitioner's willingness to testify.
10
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 elements3 for the offense of 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.4 Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 225, 2 L.Ed.2d 199.
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.
3
Respondent says that '(i)n order to prove the crime of criminal contempt, the following elements must be shown:
'1. 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 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.
4
I agree with Mr. Justice Brennan's concurring opinion in Ashe v. Swenson, 397 U.S. 436, 453—454, 90 S.Ct. 1189, 1199, 25 L.Ed.2d 469, 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.
| 01
|
405 U.S. 1
92 S.Ct. 759
30 L.Ed.2d 755
Jack BOYDv.A. L. DUTTON, Warden.
No. 70—5075.
Feb. 22, 1972.
PER CURIAM.
1
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.
2
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 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.
3
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.
4
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.
5
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, 83 S.Ct. 792, 9 L.Ed.2d 799. This right attaches at the pleading stage of the criminal process, Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367; and may be waived only by voluntary and knowing action, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. Waiver will not be 'lightly presumed,' and a trial judge must 'indulge every reasonable presumption against waiver.' Johnson, supra, at 464, 58 S.Ct. at 1023.
6
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, 83 S.Ct. 745, 757, 9 L.Ed.2d 770; 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.
7
Vacated and remanded.
8
Mr. Justice BLACKMUN, concurring.
9
I join the Court's per curian 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.
10
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, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). When a 20-year-old who 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.
11
Mr. Justice WHITE, with whom THE CHIEF JUSTICE joins, dissenting.
12
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, 83 S.Ct. 745, 758, 9 L.Ed.2d 770 (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.
13
Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting.
14
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, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the majority remands the case to the District Court.
15
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:
16
'Q. What prompted you to get him out of jail? Had he indicated he wanted to enter a plea or what?
17
'A. He stated he wanted to go before the Judge and enter a plea of guilty.
18
'Q. And is Saturday the regular day that the Judge takes pleas there?
19
'A. Yes, sir. He takes 'em in Colquitt, his home town.
20
'Q. And you took him yourself to the Courtroom from the jail?
21
'A. Yes, sir.
22
'Q. Would you tell the Court briefly what happened whenever you got him to the Courtroom?
23
'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 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.
24
'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?
25
'A. Yes, sir.
26
'Q. Is he possessed of average intelligence at least?
27
'A. Yes, sir.
28
'Q. Did he appear to understand Mr. Ray when he told him that he had the right to have an attorney?
29
'A. Mr. Ray asked him did he understand what he had stated to him. He said that he did.
30
'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?
31
'A. Yes, sir.
32
'Q. Did he knowingly and intelligently . . . this is your opinion also I'm asking about, waive his right to any counsel, legal counsel?
33
'A. Yes, sir.' 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.
34
It is true that petitioner is uneducated, and that the sentence imposed seems disproportionate to the crime.1 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, 83 S.Ct., at 757, 9 L.Ed.2d 770. 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
35
There is little likelihood that a new hearing now, eight years after the 1964 conviction, will be conducive to dependable factfinding4 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 post-conviction relief already threatens—because of sheer volume—to submerge meritorious claims and even to produce a judicial insensitivity to habeas corpus petitioners.5
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, 89 S.Ct. 747, 750, 21 L.Ed.2d 718 (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, 83 S.Ct. 745, 760, 9 L.Ed.2d 770 (1963), the Court recognized that it must rely largely on district judges, who have the 'paramount responsibility in this area,' to implement the prescribed standards.
4
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).
| 01
|
405 U.S. 56
92 S.Ct. 862
31 L.Ed.2d 36
Donald LINDSEY et al., Appellants,v.Dorothea M. NORMET et al.
No. 70—5045.
Argued Nov. 15, 1971.
Decided Feb. 23, 1972.
Syllabus
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 not 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.
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.
John H. Clough, Portland, Or., for appellants.
Theodore B. Jensen, Portland, Or., for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
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.
2
The material facts were stipulated. Appellants were the month-to-month tenants of appellee Normet1 and paid $100 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 refused to do. Appellants, who had paid the November rent, refused to 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.
3
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 Wrongful Detainer (hereinafter sometimes FED) Statute, Ore.Rev.Stat. (ORS) §§ 105.105—105.160,3 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 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 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 Appellants promptly appealed, and we noted probable jurisdiction.6
4
* 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 tenant 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 allegations 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 rental value of the property from the time of commencement of the action to final judgment. § 105.160.7
5
Appellants' principal attacks8 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
6
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 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
7
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 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
8
'Due process requires that there be an opportunity to present every available defense.' American Surety Co. v. Baldwin, 287 U.S. 156, 168, 53 S.Ct. 98, 102, 77 L.Ed. 231 (1932). See also Nickey v. Mississippi, 292 U.S. 393, 396, 54 S.Ct. 743, 744, 78 L.Ed. 1323 (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 Oregon's insistence that the tenant provide for accruing rent pending judicial settlement of his disputes with the lessor.13
9
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, 35 S.Ct. 279, 59 L.Ed. 501 (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 brought to a conclusion.14 In Bianchi v. Morales, 262 U.S. 170, 43 S.Ct. 526, 67 L.Ed. 928 (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, 43 S.Ct., at 526, and to allow other equitable defenses to be set up in a separate action to annul the mortgage.
10
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 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 'available' on the three questions (physical possession, forcible withholding, legal right to possession) at issue in an FED suit.
III
11
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 litigation, where the time between complaint and trial is substantially longer,17 and where a broader range of issues may be considered. But it does not follow that the Oregon statute invidiously discriminates against defendants in FED actions.
12
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, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961), or if the objective itself is beyond the State's power to achieve, Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); N.A.A.C.P. v. Alabama ex rel. Flowers, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (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 provisions 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, 366 U.S., at 425—426, 81 S.Ct., at 1105.
13
At common law, one with the right to possession could bring an action for ejectment, a 'relatively slow, fairly complex, and substantially expensive procedure.'19 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 Or. 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).20 An alternative legal remedy to prevent such breaches of the peace has appeared to be an overriding necessity to many legislators and judges.
14
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 supervised proceeding to settle the possessory issue in a peaceful manner:
15
'But if (the landlord) forcibly enter and expels 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 Or., at 546—547, 28 P., at 891.
16
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 Or. 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.
17
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 otherwise 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 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.
18
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 race21 and lineage22 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
19
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.
20
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
21
We agree with appellants, however, that the double-bond 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 § 19.040.24 In order to secure a stay of execution, the undertaking, where the judgment is for money, must also provide that the appellant 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 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 Or. 184, 187, 349 P.2d 866, 868 (1960). In Scales v. Spencer, 246 Or. 111, 113—114, 424 P.2d 242, 243 (1967), the Oregon Supreme Court explained the rationale of the double-bond requirement:
22
'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.'
23
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 relationship to any valid state objective and that arbitrarily discriminate against tenants appealing from adverse decisions in FED actions.
24
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. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956); District of Columbia v. Clawans, 300 U.S. 617, 627, 57 S.Ct. 660, 663, 81 L.Ed. 843 (1937); Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74, 80, 50 S.Ct. 228, 230, 74 L.Ed. 710 (1930); Reetz v. Michigan, 188 U.S. 505, 508, 23 S.Ct. 390, 392, 47 L.Ed. 563 (1903); McKane v. Durston, 153 U.S. 684, 687—688, 14 S.Ct. 913, 914—915, 38 L.Ed. 867 (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, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 788, 9 L.Ed.2d 892 (1963); Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966); Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969). Cf. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958).
25
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(1)(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,' 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(1)(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 landlordtenant relationship to warrant this discrimination.
26
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, 75 S.Ct. 92, 99 L.Ed. 46 (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 State has not sought to protect a damage award or property an appellee is right-fully 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 an 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.
27
The judgment of the District Court is affirmed in part and reversed in part.
28
Affirmed in part and reversed in part.
29
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
30
Mr. Justice DOUGLAS, dissenting in part.
31
* 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 procedures (called FED) that equal protection guaranteed against state action by the Fourteenth Amendment.
32
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.
33
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.
34
The more onerous requirement placed on tenants is said to be a guarantee that rent pending appeal will be paid. Scales v. Spencer, 246 Or. 111, 424 P.2d 242. Yet the general appeal statute would give that protection.3
35
It is said that the landlord deserves protection for waste or damages pending appeal. Ibid. But that protection is also provided under the general appeal statute.
36
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.
37
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.
38
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 owned—is the very heart of privacy in modern America. Mr. Justice Marshall in Hall v. Beals, 396 U.S. 45, 52, 90 S.Ct. 200, 203, 24 L.Ed.2d 214 (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, 85 S.Ct. 283, 13 L.Ed.2d 222); so are wealth (Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169); procreation (Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655); and interstate travel (Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600). Classifications that burden, impinge, or discriminate against such fundamental interests5 are 'highly suspect.' McDonald v. Board of Elections, 394 U.S. 802, 807, 89 S.Ct. 1404, 1407, 22 L.Ed.2d 739.
39
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 Free School District, 395 U.S. 621, 627, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583. No such 'compelling . . . interest' underlies this statutory scheme.
40
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
41
I cannot agree, however, that the remainder of Oregon's FED Statute satisfies the requirements of due process of law.
42
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 District 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 Life Assur. Co., 315 U.S. 280, 281, 62 S.Ct. 607, 86 L.Ed. 846; Huddleston v. Dwyer, 322 U.S. 232, 237, 64 S.Ct. 1015, 1018, 88 L.Ed. 1246; Bernhardt v. Polygraphic Co., 350 U.S. 198, 204, 76 S.Ct. 273, 277, 100 L.Ed. 199; Magenau v. Aetna Freight Lines, 360 U.S. 273, 281 n. 2, 79 S.Ct. 1184, 1189, 3 L.Ed.2d 1224 (Frankfurter, J., dissenting).
43
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, 90 S.Ct. 788, 25 L.Ed.2d 68), 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.
44
This all-Oregon panel said on the abstention issue:
45
'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 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.
46
'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 state-federal relations.'
47
Agreeing with that view, I come to the remaining constitutional issues.
48
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.
49
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:
50
'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.'
51
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, 28 S.Ct. 34, 35, 52 L.Ed. 143. In essence the question comes down to notice and an opportunity to defend. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865.
52
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
53
For slum tenants—not to mention the middle class—this 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
54
Moreover, even for tenants who have been lucky to find a lawyer, the landlord need only plead9 and prove10 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.
55
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 repair—were 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 landlord-tenant law for many years,13 and has been replaced by what eminent authorities have described as 'a predominantly contractual' analysis of leasehold interests.14 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 Or. 410, 398 P.2d 119; Eggen v. Wetterborg, 193 Or. 145, 237 P.2d 970.
56
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.15 It forbids anyone to use or permit a building to be used in violation of its provisions. Id., § 8—204.
57
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 Or. 263, 5 P.2d 709; Friedenthal v. Thompson, 146 Or. 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.
58
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 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.
59
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, 15 S.Ct. 959, 39 L.Ed. 1080. If a defendant in an 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).
60
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, 89 S.Ct., at 1327, 22 L.Ed.2d 600; Sherbert v. Verner, 374 U.S. 398, 404—406, 83 S.Ct. 1790, 1794—1795, 10 L.Ed.2d 965.
61
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, 43 S.Ct. 526, 67 L.Ed. 928; American Surety Co. v. Baldwin, 287 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231.
62
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 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.
63
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.
64
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.17 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.
65
I dissent from an affirmance of this judgment.
66
Mr. Justice BRENNAN, dissenting in part.
67
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 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.
68
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, 88 S.Ct. 391, 396, 19 L.Ed.2d 444 (1967); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970). In these circumstances the District Court should have remitted appellants to the Oregon courts for an authoritative interpretation of Oregon law in these respects before adjudicating appellants' plainly nonfrivolous constitutional attacks upon the FED Statute.
69
I would vacate the judgment of dismissal and remand with direction to the District Court (1) 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.
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.
2
It was stipulated that city inspectors found rusted gutters, broken windows, broken plaster, missing rea steps, and improper sanitation, all in violation of the Portland Housing Code, and that the inspectors 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.
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
for the recovery of the possession of the premises 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 commencement of the action, unless the leasing or occupation 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 notice 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 conducted. Except as provided in ORS 105.135 to 105.160, an action 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 accrue if judgment is rendered against the defendant.
'105.145 Judgment on trial by court. If the action is tried by
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 is 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 form:
State of Oregon,
County of _ _
ss.
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
chattels 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.'
4
Civ. No. 70—8, Sept. 10, 1970, D.Ore. 341 F.Supp. 638. 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 has 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, 84 S.Ct. 461, 466, 11 L.Ed.2d 440 (1964), this Court has emphasized that it should be applied only 'where the issue of state law is uncertain,' Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1182, 14 L.Ed.2d 50 (1965), and 'only in narrowly limited 'special circumstances," Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967) (citing Propper v. Clark, 337 U.S. 472, 492, 69 S.Ct. 1333, 1344, 93 L.Ed. 1480 (1949)). See Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970). The Oregon FED Statute has been in effect for over 100 years, and there is a substantial body of interpretative decisions by the Oregon courts.
6
402 U.S. 941, 91 S.Ct. 1624, 29 L.Ed.2d 109 (1971).
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.
9
United States v. National Dairy Products Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 597, 9 L.Ed.2d 561 (1963); United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 523, 4 L.Ed.2d 524 (1960).
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 Or. 62, 244 P.2d 619 (1952) (mental incompetence); Crossen v. Campbell, 102 Or. 666, 202 P. 745 (1921) (forfeiture of lease); Friedenthal v. Thompson, 146 Or. 640, 31 P.2d 643 (1934) (reformation of lease); Menefee Lumber Co. v. Abrams, 138 Or. 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 retaliatory 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), 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.
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 Bracton 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, 35 S.Ct. 279, 59 L.Ed. 501 (1915).
15
For various tenant remedies for housing code violations, see N.Y. Real Property Actions and Proceedings Law, McKinney's Consol.Laws, c. 81, §§ 769—782 (Supp. 1971—1972); Brown v. Southall Realty 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.Comp.Laws § 564.204, added by Pub.Acts 1968, c. 2, Mich.Stat.Ann. § 26.1300 (204) (1970); Edwards v. Habib, 130 U.S.App.D.C. 126, 397 F.2d 687 (1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969); United States v. Bruce, 353 F.2d 474 (CA5 1965); United States v. Beaty, 288 F.2d 653 (CA6 1961).
16
N.Y. Multiple Residence Law, McKinney's Consol.Laws, c. 61—B, § 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).
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 Or. 46, 54—56, 211 P. 163, 166—167 (1922).
19
A Casner & W. Leach, Cases and Text on Property 451 (2d ed. 1969).
20
See Annot., Right of Landlord to Dispossess Tenant Without 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 177 (1966).
21
McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).
22
Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944); Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (1948); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Glona v. American Guarantee & Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968).
23
Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969) (emphasis omitted) (right to travel). See also Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 1082, 16 L.Ed.2d 169 (1966) (right to vote). Cf. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942).
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;
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 the 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 the 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 dismissed, 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 circuit court, the district court, or before a justice of the peace. ORS § 19.040 by its terms applies to appeals from the circuit court to the court of appeals 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.'
25
The § 19.040(1)(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.
26
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), is distinguishable from the instant case. There, the 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.
1
Ore.Rev.Stat. § 19.040(1).
2
Id., § 105.160.
3
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 that he will satisfy and 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.
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, 91 S.Ct. 16, 17, 27 L.Ed.2d 4; McDonald v. Board of Elections, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739) is not germane here.
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, 20 S.Ct. 410, 414, 44 L.Ed. 520.
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 possession 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 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.
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.'
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 Or. 111, 424 P.2d 242 (1967). I agree with the Court that this provision violates the Equal Protection Clause.
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